Brandon Fleury was convicted of transmitting interstate threats under 18 USC 875(c) and cyberstalking under 18 USC 2261A(2)(B). Fleury had created various social media accounts with aliases such as Ted Bundy and Nikolas Cruz (the school shooter from Parkland, Florida) and sent harassing and threatening messages to members of the victims’ families.
On appeal, Fleury challenged his convictions under the First Amendment, arguing that the cyberstalking statute was facially overbroad since it covered expressive speech and unconstitutional as applied because his messages were not “true threats.”
The Eleventh Circuit rejected these challenges. First, the Court held the cyberstalking statute was not unconstitutionally overbroad, as the elements did not target a “substantial amount of protected speech” but rather unprotected “course of conduct” coupled with the requisite intent to kill, threaten, or cause substantial emotional distress. The Court noted it was not the first circuit to address an overbroad challenge to the statute, joining the First, Eighth, and Ninth Circuits in rejecting that challenge.
The Court also rejected Fleury’s as-applied challenge, holding that his speech did not involve a “matter of public concern” but rather “purely private matters.” While the school shooting itself was certainly a matter of public concern, the messages did not address any public topics of discussion, but instead included private threats and was directed at the victims’ families’ grief, a “purely private matter.” Nor were the messages an unconstitutional regulation of his speech’s content, though the Court conceded it was a “content-based restriction.” The restriction was valid, the Court explained, because his messages were “true threats.” A true threat is a statement “where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”
The Court also rejected challenges to the sufficiency of the indictment, the sufficiency of the evidence, the admission of evidence that Fleury was attracted to serial killers, and the cyberstalking jury instruction.
On appeal from the Southern District of Florida
Opinion by Wilson, joined by Rosenbaum and Hull
Click here to read the opinion.