United States v. Osinger, No. 11-50338 (6-4-14) (Rawlinson with Graber; concurrence by Watford) ---

A stalking conviction under 18 USC § 2216A withstands facial and as-applied challenges under the First Amendment.  The defendant and victim had been romantically involved.  The girlfriend victim ended the relationship and moved out when she found out he was married.  The defendant then called and texted her, showed up at her work, tracked her across country, sent threatening texts and set up a Facebook page with a name close to the victim and posted sexually explicit photos, videos and messages.  He was convicted and received 46 months.

The defendant argued that the statute against interstate stalking and harassment was facially invalid.  This challenge failed because the statute specified acts, specific intent, and impact on the victim. 

As to the as-applied challenge, the 9th held that the conduct in this case was not protected under the First Amendment because of the "criminal exception" when the speech is integral to criminal conduct.  Here, the speech was entangled with criminal conduct.  The statute with the requirements for acts, intent, and impact focus on criminal conduct.

Watford, concurring, builds on the exception.   Much conduct here was speech, and arguably protected even if distasteful.  As the exception is constructed, though, there has to be more than just speech; there has to be either acts or conduct.  Here, there was ample physical conduct, including showing up, tracking down, posting to Facebook, and threatening.  To Watford, the conduct and nonconduct together are sufficient in this case.

The 9th affirmed the sentence.  The court was not unreasonable in denying acceptance of responsibility after a trial, and the sentence not unreasonable when compared to another defendant stalker who got 27 months.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2014/06/04/11-50338.pdf