United States v. Fleury, No. 20-11037 (11th Cir. 2021)
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The Eleventh Circuit affirmed defendant's conviction of one count of transmitting interstate threats, in violation of 18 U.S.C. 875(c) (Count 1), and three counts of cyberstalking, in violation of 18 U.S.C. 2261A(2)(B) (Counts 2–4). Defendant's convictions stem from posts he made and messages he sent on Instagram, posing as various mass murderers including notorious serial killer Ted Bundy and Nikolas Cruz, the perpetrator of the Marjory Stoneman Douglas High School shooting.
The court held that 18 U.S.C. 2261A(2)(B) is both facially constitutional and constitutional as applied to defendant's conduct. Finding the First Circuit persuasive, the court declined to employ the "strong medicine" of overbreadth in defendant's constitutional challenge to strike down section 2261A(2)(B). In regard to defendant's as-applied challenge, the court found meritless defendant's contention that his speech was regarding a matter of public concern and that the statute impermissibly restricts the content of his speech. In this case, the messages defendant sent amount to true threats and are therefore not afforded First Amendment protection. The court also concluded that the evidence was sufficient to support defendant's conviction; the district court did not plainly err in admitting the government's expert testimony; and the court rejected defendant's challenges to the jury instructions.
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