United States v. Osinger

Prohibiting conduct under 18 U.S.C.§§ 2261A(2)(A) is not facially invalid under the First Amendment of the United States Constitution.

Christopher Osinger (“Osinger”) was indicted for engaging in harassing behavior and intimidation under 18 U.S.C.§§ 2261A(2)(A) and 2261(b)(5). Osinger allegedly sent sexually explicit photographs and emails of his ex-girlfriend to her friends and family members without her knowledge or consent. Osinger sought dismissal for the charges stating that 18 U.S.C.§ 2261A(2)(A) was unconstitutional because it prohibits free speech that is protected by the First Amendment of the Constitution. Osinger also contended that the statute was unconstitutionally vague because it did not define “substantial emotional distress” or “harassment”. This panel has not specifically addressed the constitutionality of this statute, but other circuits have “rejected similar facial challenges.” The panel agreed with the rationale set forth by the Eighth Circuit stating that “Section 2261A(2)(A) is directed toward courses of conduct, not speech, and the conduct it proscribes is not necessarily associated with speech. . . .” The Supreme Court has “carved out some limited categories of unprotected speech, including obscenity, defamation, fraud,incitement, and speech integral to criminal conduct.” In this case, the panel determined that Osinger had engaged in the type of conduct that has been deemed unprotected speech. Thus, Osinger should not be afforded First Amendment protection. Osinger’s additional argument that “substantial emotional distress” and “harassment” are vague terms is also equally unavailing. The panel found that these terms were not complex and could be understood by individuals with common intelligence. Therefore, the statute is not facially invalid. AFFIRMED