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United States v. Yung, 2022 WL 2112794 (3rd Cir. 2022)
The U.S. Supreme Court has consistently classified outrageous, insulting and offensive speech as protected under the First Amendment: “In public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide adequate breathing space to the freedoms protected by the First Amendment” (Madsen v. Women’s Health Center, Inc., 512 U.S. 753 (1994)).
This principle often clashes with statutes banning cyberstalking that target speech aimed to harass, intimidate, torment or embarrass another person. The Yung case explores the application of the federal cyberstalking law (18 U.S.C. §§ 2261A(2)(B) & 2261(b)).
Ho Ka Terence Yung was a brilliant native of Hong Kong, educated in the United States – at age six, he was already performing as a concert pianist. After graduating from the University of Houston with twin degrees in English and Music, Yung applied to law schools, including Georgetown University School of Law. Georgetown Law invited Yung to interview with an alumnus, a common practice for many prestigious universities. The interview did not go well; Yung thought his interviewer was rude. Georgetown subsequently rejected Yung’s application – and that stung Yung.
Not long after learning he was denied admission, Yung put his prodigious web skills to work. He created fake obituaries for the interviewer’s wife and son; fabricated social media profiles littered with Ku Klux Klan content in the interviewer’s name; and posed as the interviewer in thousands of blog posts where he bragged about raping women, a boy and an eight-year-old girl. One internet commenter posted: “Someone is really out to nail this guy to a cross.”
Next, Yung filed a false report on a law school web forum accusing the interviewer of groping, bigotry and threatening professional retaliation; made reports to the Better Business Bureau accusing the interviewer of sexually assaulting a female associate and berating prospective employees; and wrote that the interviewer’s employer should “fire this dirty old man.”
Yung then targeted the interviewer’s wife, impersonating her in an online ad seeking a sex slave. The interviewer’s family received hundreds of phone calls from men seeking sex. Yung’s posts encouraged sexual violence against the wife, writing that she “liked it when a man puts his hand around her throat and threatens her with a knife and gun before forcing her to have sex.” Police found suspicious men lurking outside the interviewer’s home late at night. The family was terrified that every strange visitor sought to “rape and murder” them. Georgetown University added security measures because the interviewer’s son attended school there.
The interviewer hired private cyber-investigators who, working with the FBI, traced the harassment to Yung, who was charged with cyberstalking under the federal statute. He unsuccessfully challenged, claiming the law is overbroad under the First Amendment and punishes speech that is potentially constitutionally protected, and reserved his right to appeal. Yung was sentenced to four years in prison, followed by probation, and ordered to pay restitution for the interviewer’s investigative costs and Georgetown University’s security measures.
The appellate court affirmed Yung’s conviction. To violate the federal cyberstalking statute (many states have similar laws), a suspect must meet three elements. First, the suspect must communicate using the U.S. mail, any interactive computer service or electronic communication service, or any system or other facility of interstate or foreign commerce at least twice. Second, there must be evidence the suspect acted “with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person.” Third, the victim must be put in “reasonable fear of death or serious bodily injury,” or the communication must “cause, attempt to cause, or be reasonably expected to cause substantial emotional distress.”
Yung was charged and convicted under the theory that he caused or attempted to cause substantial emotional distress. He asserted it was his speech, which he believed was subject to First Amendment protection, that caused the emotional distress. The court rejected his appeal, holding it was possible to apply a very narrow reading of the statute’s intent element to “criminal harassment, which is unprotected because it constitutes true threats or speech that is integral to proscribable criminal conduct.” Thus, as applied to Yung, the statute was not constitutionally overbroad.
The glaring lesson for officers is that investigation of cyberstalking, or any stalking based on communications (“speech”), should start with a visit to the appropriate prosecutor for guidance on the constitutional guardrails in the collision of free speech with criminal speech.
