Saturday, June 14, 2014

Case o' The Week: The First and the Ninth - Osinger, First Amendment, and Internet Stalking

   The First Amendment protects offensive and, at times, reprehensible speech.
  (But, as Judge Rawlinson explains, not all offensive and reprehensible speech is protected.)
United States v. Osinger, 2014 WL 2498131 (9th Cir. June 4, 2014), decision available here.

Players: Decision by Judge Rawlinson, joined by Judges Graber and Watford. Concurrence by Judge Watford.

Facts: Christopher Osinger was indicted for “engaging in a course of harassing conduct,” in violation of 18 USC §§ 2261A(2)(A) and 2261(b)(5). Id. at *1. Before trial he unsuccessfully moved to dismiss the indictment, arguing that Section 2261A(2)(A) was unconstitutionally vague. Id. Trial testimony revealed that Osinger and the female victim, V.B., had a romantic relationship that ended badly. Id. Osinger texted V.B., showed up at her house un-invited in the early morning, and ultimately created a Facebook page in a name close to V.B.’s, with nude photographs of her and offensive text. Id. at *1-*2. Osinger also sent disturbing emails to V.B.’s co-workers. Id. He was convicted and sentenced to 46 months. Id. at *3.

Issue(s): “Osinger . . . contends that 18 USC § 2261A(2)(A) was unconstitutionally applied to his protected speech.” Id. at *5.

Held: “Any expressive aspects of Osinger’s speech were not protected under the First Amendment because they were ‘integral to criminal conduct’ in intentionally harassing, intimidating, or causing substantial emotional distress to V.B. . . . . In the limited context of 18 USC § 2261A, Osinger’s speech is not afforded First Amendment protection for the additional reason that it involved sexually explicit publications concerning a private individual.” Id. at *7.

Of Note: Hidden amongst the big constitutional fight is a troubling holding of broad application: a denial of acceptance of responsibility. Id. at *7. Osinger was denied two-offense levels off for acceptance, even though he argued he went to trial only to preserve his constitutional challenge to the statute. Id. at *7. In upholding that denial, the Court relies heavily on defense counsel’s characterization of the evidence at trial. Id. at *7. The Court also emphasizes Osinger’s lack of contriteness, quoting equivocal acceptance of responsibility from his counsel (it appears). Id. at *8 (“Here, Mr. Osinger said and did things out of anger.”) 
   If you want to navigate those narrow straits of preserving an appellate issue through trial, while claiming acceptance, read Osinger. It is a sobering reminder that counsel’s actions can jeopardize acceptance eligibility.

How to Use: Concurring, Judge Watford would also uphold the statute against the as-applied challenge. Id. at *9 (Watford, J., concurring). His First Amendment analysis is nuanced, however, and emphasizes that this case involved both speech and unprotected non-speech conduct. Id. at *12. It is a thoughtful discussion, carefully tailored to the facts before the Court. 
  Judge Watford ends with an observation that may be helpful in future challenges: “It’s unclear whether this [more rigorous First Amendment] standard, [that applies when a defendant is doing nothing but exercising the right of free speech] would apply in a § 2261A prosecution in which the defendant caused someone substantial emotional distress by engaging only in otherwise protected speech. That is a question whose resolution we wisely leave for another day.” Id. at *13 (emphasis added).
For Further Reading: More than crack resentencing, probably more than commutation, the retroactive application of the minus-two level reduction in drug cases could have a profound impact for our incarcerated clients. In the recent Commission hearing, DOJ offered a disappointing “compromise” position that would limit retroactive application. For two critiques of DOJ’s position, see Prof Berman's blog here
  And for ED Penn. AFPD Sarah Gannet’s compelling testimony, see here.  Sarah did us all proud - make sure to thank her and the Sentencing Resource Counsel for their hard work on a righteous cause.

First Amendment logo from

Steven Kalar, Federal Public Defender N.D. Cal. Website at


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