United States v. Christopher Osinger , 753 F.3d 939 ( 2014 )


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  •                    FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                No. 11-50338
    Plaintiff-Appellee,
    D.C. No.
    v.                   2:10-cr-00758-ODW-1
    CHRISTOPHER OSINGER,
    Defendant-Appellant.              OPINION
    Appeal from the United States District Court
    for the Central District of California
    Otis D. Wright, District Judge, Presiding
    Argued and Submitted
    July 10, 2013—Pasadena, California
    Filed June 4, 2014
    Before: Susan P. Graber, Johnnie B. Rawlinson,
    and Paul J. Watford, Circuit Judges.
    Opinion by Judge Rawlinson;
    Concurrence by Judge Watford
    2                  UNITED STATES V. OSINGER
    SUMMARY*
    Criminal Law
    The panel affirmed a conviction and sentence for stalking
    in violation of 18 U.S.C. § 2261A.
    The panel held that because § 2261A proscribes harassing
    and intimidating conduct, it is not facially invalid under the
    First Amendment. The panel rejected the defendant’s
    argument that the statute’s failure to define “harass” or
    “substantial emotional distress” renders it unconstitutionally
    vague.
    The panel also rejected the defendant’s contention that
    § 2261A was unconstitutionally applied to his protected
    speech, where the defendant engaged in a course of conduct,
    unmistakably proscribed by the statute, with the intent to
    harass and intimidate the victim and to cause her substantial
    emotional distress, and where any related speech was integral
    to the defendant’s criminal conduct and involved sexually
    explicit publications concerning a private individual.
    The panel held that the defendant was not entitled to a
    downward adjustment premised on acceptance of
    responsibility, and rejected a contention that a disparity with
    the sentence imposed on a defendant who pled guilty in a
    different stalking case rendered the sentence in this case
    unreasonable.
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. OSINGER                     3
    Concurring, Judge Watford wrote separately to add
    thoughts on why the as-applied challenge fails, including that
    the “speech integral to criminal conduct” exception to First
    Amendment protection surely applies when the defendant
    commits an offense by engaging in both speech and non-
    speech conduct, and the sole objective of the speech is to
    facilitate the defendant’s criminal behavior.
    COUNSEL
    Michael K. Cernyar, Long Beach, California, for Defendant-
    Appellant.
    André Birotte Jr., United States Attorney, Robert E. Dugdale,
    Chief Criminal Division, Ryan White (argued), Assistant
    United States Attorney, Los Angeles, California, for Plaintiff-
    Appellee.
    OPINION
    RAWLINSON, Circuit Judge:
    Appellant Christopher Osinger (Osinger) challenges his
    conviction for stalking in violation of 18 U.S.C. § 2261A.
    Osinger asserts a facial challenge to 18 U.S.C. § 2261A as
    unconstitutionally vague on its face and as applied to his
    conduct.
    Osinger also maintains that the district court’s sentence of
    46 months’ imprisonment was unreasonable because his
    acceptance of responsibility and a sentencing disparity
    4               UNITED STATES V. OSINGER
    warranted a more lenient sentence. We affirm Osinger’s
    conviction and sentence.
    I. BACKGROUND
    Osinger was indicted for engaging in a course of
    harassing and intimidating conduct in violation of 18 U.S.C.
    §§ 2261A(2)(A) and 2261(b)(5). The indictment alleged that
    Osinger sent several threatening and sexually explicit text
    messages, emails, and photographs of V.B., a former
    girlfriend, to V.B., as well as to her co-workers and friends.
    The indictment also alleged that Osinger “used the Internet to
    create a Facebook page in a name close to V.B.’s name” to
    post “suggestive and explicit photos of V.B.” and “demeaning
    statements, purportedly made by V.B. . . .”
    Prior to trial, Osinger sought dismissal of the indictment,
    asserting that 18 U.S.C. § 2261A(2)(A) was
    unconstitutionally vague. The district court ruled that
    18 U.S.C. § 2261A(2)(A) was not unconstitutionally vague
    and denied Osinger’s motion to dismiss the indictment.
    At trial, V.B. testified that she was introduced to Osinger
    through a mutual friend. Osinger subsequently became
    V.B.’s roommate and they became romantically involved.
    During their nine-month relationship, V.B. allowed Osinger
    to take nude photographs of her.
    Osinger told V.B. that he had divorced his wife in 2005.
    V.B. eventually moved out of the apartment she shared with
    Osinger and ended their relationship when she discovered that
    Osinger was still married. V.B. did not provide Osinger with
    her new address because she “didn’t want him to contact
    [her].” Osinger contacted V.B.’s sister-in-law and told her
    UNITED STATES V. OSINGER                     5
    that he knew where V.B. lived and that “he wanted to be with
    [V.B.].” According to V.B., Osinger “repossessed cars” and
    “could easily find addresses . . .” After Osinger spoke with
    V.B.’s sister-in-law, V.B. telephoned Osinger because she
    “wanted him to stop looking for [her] family or friends, and
    [she] wanted to hear what he had to say.”
    Osinger later came to V.B.’s new residence in an attempt
    at reconciliation. Osinger arrived in the “early hours of the
    morning, like 1, 2 in the morning.” V.B. did not answer
    when he knocked on her window or door because she “didn’t
    want to speak to him.” Osinger also “came to [her] work a
    few times.”
    When V.B. eventually agreed to meet with Osinger, he
    told her that he was getting a divorce. Osinger left copies of
    divorce papers in V.B.’s mailbox, but V.B. doubted their
    authenticity because they lacked the signature of Osinger’s
    wife or “any court stamps.” V.B. informed Osinger that she
    was not interested in continuing their relationship and moved
    in with her sister. V.B. did not tell Osinger that she was
    living with her sister and did not provide him with the
    address. Nevertheless, Osinger called and texted V.B. and
    eventually came to her sister’s home. V.B. informed him that
    she was not interested in reviving their relationship.
    After V.B. received an offer for a new position in
    California, she informed Osinger that she was leaving Illinois.
    Osinger told her that “he would do anything for [them] to be
    back together,” and was upset that V.B. left without saying
    goodbye. V.B. did not provide her California address to
    Osinger.
    6               UNITED STATES V. OSINGER
    Following her relocation to California, V.B. continued to
    receive text messages from Osinger, including messages that
    he wanted “one last chance.” V.B. contacted Osinger when
    he stated that he would move to California. V.B. told Osinger
    “to stop texting [her], to stop calling . . .”
    V.B. continued to receive text messages from Osinger
    despite her remonstrations. Considering the content of the
    messages, V.B. inferred that Osinger had sexually explicit
    videos of her. V.B. construed the text messages as “a threat.”
    She subsequently received a telephone call from an ex-
    boyfriend who informed her that “someone had posted a
    Facebook page with nude pictures of [V.B.] and horrible
    content . . .” When V.B. viewed the Facebook page, she
    recognized the photographs as ones that Osinger had taken of
    her. V.B. feared that her family might see the photographs,
    as one of her cousins had already accepted the Facebook
    posting.
    V.B. contacted Carlos Enriquez, her supervisor, to assist
    her in removing the Facebook page. V.B. was “crying
    hysterically” and “could not believe what [Osinger] had done,
    and [she] was just shocked.” Enriquez removed the Facebook
    page and informed V.B. that he had been contacted by
    another employee who had received “an e-mail through his
    [company] web e-mail with nude pictures of [V.B.].” V.B.
    received a telephone call from a former co-worker in Chicago
    that “he had also received an e-mail with nude pictures.”
    V.B. eventually reported the incidents to the Torrance
    Police Department because she “was scared. [She] did not
    know what else [Osinger] was going to try to do.” V.B.
    ultimately obtained a restraining order against Osinger.
    UNITED STATES V. OSINGER                    7
    Enriquez corroborated V.B.’s testimony regarding her
    emotional state and his assistance in removing the Facebook
    page. Enriquez stayed with V.B. because she “was really
    bad, still shaking and kind of . . . desperate.” Enriquez also
    received an email at work “with some pictures and with really
    bad content . . .” Enriquez contacted company headquarters
    to have the email blocked. When Enriquez informed V.B.
    about the email, she started to cry and shake.
    Jason Roberts, V.B.’s former co-worker in Chicago,
    testified that he “received some pretty disturbing e-mails” on
    his corporate account. Roberts informed V.B., who “was
    very, very disturbed, very upset. . . .”
    Darek Pawelek, V.B.’s ex-boyfriend, testified that he
    received a Facebook invite that he thought was from V.B.,
    although the name was spelled differently. When Pawelek
    informed V.B. of the Facebook page’s content, “[s]he got
    really upset. She started crying, saying things like [she
    didn’t] know why he is doing this. Why won’t he leave [her]
    alone. . . .”
    The jury found Osinger guilty of stalking in violation of
    18 U.S.C. §§ 2261A(2)(A) and 2261(b)(5) as alleged in count
    one of the indictment.
    At sentencing, Osinger objected to the recommendation
    from the probation officer that a downward departure for
    acceptance of responsibility was unwarranted. Osinger also
    asserted that a more lenient sentence was supported by the
    27-month sentence of another defendant convicted of
    violating 18 U.S.C. § 2261A. Osinger requested a six-month
    prison sentence and twelve months in a halfway house.
    8                UNITED STATES V. OSINGER
    The district court calculated a base offense level of 18, an
    adjusted offense level of 22, and a guidelines range of 46 to
    57 months’ imprisonment. The district court rejected
    Osinger’s request for a downward adjustment premised on
    acceptance of responsibility. After considering the requisite
    
    18 U.S.C. § 3553
    (a) factors, the district court sentenced
    Osinger to 46 months’ imprisonment, at the low end of the
    guidelines range, and three years of supervised release.
    Osinger filed a timely notice of appeal.
    II. STANDARDS OF REVIEW
    “A challenge to the constitutionality of a statute is
    reviewed de novo.” United States v. Berry, 
    683 F.3d 1015
    ,
    1020 (9th Cir. 2012) (citation omitted). “We also review de
    novo when a criminal statute is challenged for vagueness.”
    
    Id.
     (citation omitted).
    “We review a sentence for both procedural error and
    substantive reasonableness. . . .” United States v. Joseph,
    
    716 F.3d 1273
    , 1276 (9th Cir. 2013) (citation omitted). “We
    review for clear error the district court’s finding that
    [Osinger] did not accept responsibility for his crime.” United
    States v. Ramos-Medina, 
    706 F.3d 932
    , 936 (9th Cir.), as
    amended, cert. denied, 
    134 S.Ct. 64
     (2013) (citation omitted).
    UNITED STATES V. OSINGER                            9
    III.      DISCUSSION
    A. Constitutionality of 18 U.S.C. § 2261A1,2
    1. Facial Challenge
    Osinger contends that 18 U.S.C. § 2261A is facially
    unconstitutional because it prohibits speech protected by the
    1
    18 U.S.C. § 2261A(2)(A) provides:
    Whoever . . . (2) with the intent — (A) to kill, injure,
    harass, or place under surveillance with intent to kill,
    injure, harass, or intimidate, or cause substantial
    emotional distress to a person in another State or tribal
    jurisdiction or within the special maritime and
    territorial jurisdiction of the United States . . . shall be
    punished as provided in section 2261(b) of this title.
    2
    
    18 U.S.C. § 2261
    (b) provides:
    A person who violates this section or section 2261A
    shall be fined under this title, imprisoned — (1) for life
    or any term of years, if death of the victim results;
    (2) for not more than 20 years if permanent
    disfigurement or life threatening bodily injury to the
    victim results; (3) for not more than 10 years, if serious
    bodily injury to the victim results or if the offender uses
    a dangerous weapon during the offense; (4) as provided
    for the applicable conduct under chapter 109A if the
    offense would constitute an offense under chapter 109A
    (without regard to whether the offense was committed
    in the special maritime and territorial jurisdiction of the
    United States or in a Federal prison); and (5) for not
    more than 5 years, in any other case, (6) Whoever
    commits the crime of stalking in violation of a
    temporary or permanent civil or criminal injunction,
    restraining order, no-contact order, or other order
    described in section 2266 of title 18, United States
    Code, shall be punished by imprisonment for not less
    than 1 year.
    10                   UNITED STATES V. OSINGER
    First Amendment. Osinger also argues that 18 U.S.C.
    § 2261A(2)(A) is overly broad because it does not define
    “substantial emotional distress” or “harassment.”3
    “In a facial challenge, a statute is unconstitutionally vague
    if it fails to provide a person of ordinary intelligence fair
    notice of what is prohibited, or is so standardless that it
    authorizes or encourages seriously discriminatory
    enforcement. . . .” United States v. Harris, 
    705 F.3d 929
    , 932
    (9th Cir.), as amended, cert. denied, 
    133 S.Ct. 1510
     (2013)
    (citation and internal quotation marks omitted). Although we
    have not extensively addressed the First Amendment
    implications of 18 U.S.C. § 2261A(2)(A), other circuits have
    rejected similar facial challenges.
    For example, in United States v. Petrovic, 
    701 F.3d 849
    (8th Cir. 2012), the Eighth Circuit observed that “[a]n
    overbreadth challenge . . . will rarely succeed against a law or
    regulation that is not specifically addressed to speech or to
    conduct necessarily associated with speech (such as picketing
    or demonstrating).” 
    Id. at 856
     (citation, alterations, and
    3
    In conclusory fashion, Osinger also asserts that “the Indictment filed
    in this case must be dismissed because it fails to state an offense.”
    However, Osinger has waived any challenge to the sufficiency of the
    indictment as he provided no argument in support of this issue in his
    opening brief. See Autotel v. Nev. Bell Tel. Co., 
    697 F.3d 846
    , 857 n.9
    (9th Cir. 2012), cert. denied, 
    133 S.Ct. 1250
     (2013) (“[T]he conclusory
    statement in [the defendant’s] opening brief, unaccompanied by argument
    or citation to the record, is insufficient to preserve the issue for appeal, and
    we do not address it.”) (citations omitted). In any event, the indictment
    sufficiently alleged the requisite elements to charge a violation of
    18 U.S.C. § 2261A. See United States v. Rojas-Pedroza, 
    716 F.3d 1253
    ,
    1261 (9th Cir. 2013) (“Generally, an indictment is sufficient so long as it
    sets forth all the elements necessary to constitute the offense. . . .”)
    (citation omitted).
    UNITED STATES V. OSINGER                    11
    internal quotation marks omitted). “Section 2261A(2)(A) is
    directed toward courses of conduct, not speech, and the
    conduct it proscribes is not necessarily associated with
    speech. . . .” 
    Id.
     (alteration and internal quotation marks
    omitted). “Most, if not all, of the statute’s legal applications
    are to conduct that is not protected by the First Amendment.”
    
    Id.
     (citation and alteration omitted). Additionally, “[t]he rare
    application of the statute that offends the First Amendment
    can still be remedied through as-applied litigation.” 
    Id.
    (citation and internal quotation marks omitted). “Because a
    substantial number of the statute’s applications will not be
    unconstitutional, [the Eighth Circuit] decline[d] to use the
    strong medicine of overbreadth to invalidate the entire
    statute.” 
    Id.
     (citations, alteration, and internal quotation
    marks omitted).
    We agree with the Eighth Circuit’s rationale that, because
    18 U.S.C. § 2261A proscribes harassing and intimidating
    conduct, the statute is not facially invalid under the First
    Amendment. In particular, 18 U.S.C. § 2261A specifically
    criminalizes “a course of conduct that . . . causes . . .
    substantial emotional distress to [the harassee].” 18 U.S.C.
    § 2261A(2)(B) (emphasis added). Additionally, 
    18 U.S.C. § 2266
    (2) provides that “[t]he term ‘course of conduct’ means
    a pattern of conduct composed of 2 or more acts, evidencing
    a continuity of purpose.” Thus, the proscribed acts are
    tethered to the underlying criminal conduct and not to speech.
    Moreover, we concur in the Eighth Circuit’s reasoning that,
    “[b]ecause the statute requires both malicious intent on the
    part of the defendant and substantial harm to the victim, it
    is difficult to imagine what constitutionally-protected
    speech would fall under these statutory prohibitions.”
    Petrovic, 701 F.3d at 856 (alterations and internal quotation
    marks omitted); see also United States v. Sayer, No. 12-2489,
    12                  UNITED STATES V. OSINGER
    – F.3d –, 
    2014 WL 1758453
    , at *7–*8 (1st Cir. May 2, 2014)
    (rejecting facial challenge to 18 U.S.C. § 2261A(2)(A) on
    similar grounds).4
    Osinger’s argument that 18 U.S.C. § 2261A(2)(A) is
    unconstitutionally vague because it does not define “harass”
    or “substantial emotional distress” is equally unavailing.
    “Vague statutes are invalidated for three reasons: (1) to avoid
    punishing people for behavior that they could not have known
    was illegal; (2) to avoid subjective enforcement of laws based
    on arbitrary and discriminatory enforcement by government
    officers; and (3) to avoid any chilling effect on the exercise
    of First Amendment freedoms. . . .” United States v.
    Kilbride, 
    584 F.3d 1240
    , 1256 (9th Cir. 2009) (citation and
    internal quotation marks omitted). None of these reasons
    applies here.
    Contrary to Osinger’s argument, “harass” and “substantial
    emotional distress” are not esoteric or complicated terms
    devoid of common understanding. See, e.g., Adams v. Ford
    Motor Co., 
    653 F.3d 299
    , 307 (3d Cir. 2011) (“Black’s
    Dictionary [784 (9th ed. 2009)] defines harassment as ‘words,
    conduct, or action (usu. repeated or persistent) that, being
    4
    Our decision in United States v. Bagdasarian, 
    652 F.3d 1113
     (9th Cir.
    2011), is not to the contrary. In that case, we held that, “[i]n order to
    affirm a conviction under any threat statute that criminalizes pure speech,
    we must find sufficient evidence that the speech at issue constitutes a true
    threat . . .” 
    Id. at 1117
     (internal quotation marks omitted). As the Eighth
    Circuit properly concluded in Petrovic, 18 U.S.C. § 2261A is targeted at
    a course of conduct, not speech. See Petrovic, 701 F.3d at 856 (“Section
    2261A(2)(A) is directed toward courses of conduct, not speech, and the
    conduct it proscribes is not necessarily associated with speech. . . .”)
    (alteration and internal quotation marks omitted). Bagdasarian, therefore,
    is inapplicable to our analysis of 18 U.S.C. § 2261A.
    UNITED STATES V. OSINGER                     13
    directed at a specific person, annoys, alarms, or causes
    substantial emotional distress in that person and serves no
    legitimate purpose. . . .’”); see also Veile v. Martinson,
    
    258 F.3d 1180
    , 1189 (10th Cir. 2001) (describing “substantial
    emotional distress” to be “understood by persons of common
    intelligence” to mean “mental distress, mental suffering, or
    mental anguish, and includes depression, dejection, shame,
    humiliation, mortification, shock, indignity, embarrassment,
    grief, anxiety, worry, fright, disappointment, nausea, and
    nervousness, as well as physical pain” in the context of a state
    stalking statute) (citations omitted). As the Fourth Circuit
    observed in United States v. Shrader, 
    675 F.3d 300
     (4th Cir.),
    cert. denied, 
    133 S.Ct. 757
     (2012), “[w]hatever other
    definitions one might hypothesize for the meaning of harass
    or intimidate, there can be little doubt that [the defendant’s]
    stalking falls within the conduct the statute is intended to
    proscribe. [The defendant’s] own words evince his intent to
    cause substantial emotional distress. . . . In short, we reject
    [the defendant’s] contention that his stalking convictions
    must be overturned on vagueness grounds.” 
    Id. at 312
    (citation, alteration, footnote reference, and internal quotation
    marks omitted).
    Moreover, 18 U.S.C. § 2261A requires that the defendant
    act with the intent to harass, intimidate, or cause substantial
    emotional distress. See 18 U.S.C. § 2261A(2)(A). This
    scienter requirement, which the jury found had been proven
    beyond a reasonable doubt, thoroughly undermines Osinger’s
    contention that he was unable to discern that his harassment
    of V.B. was proscribed by 18 U.S.C. § 2261A. See United
    States v. Jae Gab Kim, 
    449 F.3d 933
    , 943 (9th Cir. 2006), as
    amended (“[A] scienter requirement may mitigate a law’s
    vagueness, especially with respect to the adequacy of notice
    14                  UNITED STATES V. OSINGER
    to the complainant that his conduct is proscribed. . . .”)
    (citation omitted).
    Osinger’s threats, creation of a false Facebook page with
    sexually explicit photographs of V.B., and emails to V.B.’s
    co-workers and friends containing explicit photographs
    evinced Osinger’s “intent to . . . cause substantial emotional
    distress . . .” 18 U.S.C. § 2261A(2). Thus, Osinger’s
    unrelenting harassment and intimidation of V.B. was not
    based on conduct that he “could not have known was illegal.”
    Kilbride, 
    584 F.3d at 1256
    .5
    5
    Osinger contends that pending legislation to amend 18 U.S.C.
    § 2261A(2)(A) bolsters his vagueness challenge. Osinger relies on a
    proposed bill entitled “Simplifying The Ambiguous Law, Keeping
    Everyone Reliably Safe Act of 2011.” H.R. 196, 112th Cong. (2011).
    Notably, even if the proposed amendments were otherwise relevant to our
    analysis, which we doubt, those proposals would not eliminate the terms
    that Osinger challenges as vague. Indeed, if any implication can be
    drawn, it is that the drafters did not consider the challenged terms “harass”
    and “emotional distress” to be ambiguous. The proposed bill provides:
    (a) Whoever, with intent to kill, physically injure,
    harass, or intimidate a person, or place under
    surveillance with the intent to kill, physically injure,
    harass, or intimidate a person, travels in interstate or
    foreign commerce or within the special maritime and
    territorial jurisdiction of the United States, or enters or
    leaves Indian country, and in the course of, or as a
    result of, such travel- (1) causes or attempts to cause
    bodily injury or serious emotional distress to a person
    other than the person engaging in the conduct; or
    (2) engages in conduct that would be reasonably
    expected to cause the other person serious emotional
    distress; shall be punished as provided in subsection
    (c).
    UNITED STATES V. OSINGER                          15
    2. As-Applied Challenge
    Osinger next contends that 18 U.S.C. § 2261A(2)(A) was
    unconstitutionally applied to his protected speech.
    “In an as-applied challenge, a statute is unconstitutionally
    vague if it fails to put a defendant on notice that his conduct
    was criminal. For statutes involving criminal sanctions the
    requirement for clarity is enhanced.” Harris, 705 F.3d at 932
    (citations, alterations, and internal quotation marks omitted).
    Osinger’s as-applied challenge is unpersuasive given the
    nature of the implicated speech. “The First Amendment
    prohibits any law abridging the freedom of speech. However,
    the Supreme Court has carved out some limited categories of
    unprotected speech, including obscenity, defamation, fraud,
    incitement, and speech integral to criminal conduct.” United
    States v. Meredith, 
    685 F.3d 814
    , 819 (9th Cir.), cert. denied,
    
    133 S.Ct. 536
     (2012) sub. nom. Giordano v. United States
    (citations, alteration, and internal quotation marks omitted).
    “At issue here is the First Amendment exception that allows
    the government to regulate speech that is integral to criminal
    conduct. . . .” 
    Id.
     at 819–20.
    In Meredith, we considered whether the defendants’
    convictions for advocacy of tax evasion violated the First
    Amendment. See 
    id. at 817
    . In addition to selling books
    explaining how to avoid taxes, the defendants sold a
    
    Id.
     (emphases added). Although the bill utilizes the term “serious
    emotional distress” in lieu of “substantial emotional distress,” the
    proposed legislation does not support Osinger’s vagueness challenge
    given that Osinger’s proscribed course of conduct in threatening and
    intimidating V.B. caused both serious and substantial emotional distress.
    16              UNITED STATES V. OSINGER
    particular type of financial trust “which they claimed was
    exempt from taxes. . . .” 
    Id. at 818
    . The defendants were
    charged “with conspiring to defraud the United States by
    impeding, impairing, obstructing, and defeating the lawful
    functions of the IRS in the ascertainment, computation,
    assessment, and collection of federal taxes, in violation of 
    18 U.S.C. § 371
    . . . .” 
    Id.
     In rejecting the defendants’ First
    Amendment argument, we observed that “in those instances,
    where speech becomes an integral part of the crime, a First
    Amendment defense is foreclosed even if the prosecution
    rests on words alone.” 
    Id. at 820
     (citation, alteration, and
    footnote reference omitted). Because the defendants’ conduct
    “involved far more than mere advocacy of tax evasion,” the
    First Amendment was not implicated by the defendants’
    “speech integral to criminal conduct.” 
    Id. at 819, 823
    (citation omitted).
    Although Meredith implicitly undermines Osinger’s
    argument that he engaged in protected speech, other circuits
    have explicitly rejected as-applied challenges to 18 U.S.C.
    § 2261A(2)(A). In Petrovic, the defendant sent the victim
    text messages stating that he had sexually explicit images of
    her, which the defendant subsequently mailed as postcards to
    the victim’s family and workplace. See Petrovic, 701 F.3d at
    852–53. The defendant also designed a website containing
    links to the images. See id. at 853. In rejecting the
    defendant’s as-applied challenge, the Eighth Circuit reasoned
    that the defendant’s “communications fall outside the First
    Amendment’s protection” because “[t]he communications for
    which [the defendant] was convicted under § 2261A(2)(A)
    were integral to this criminal conduct as they constituted the
    means of carrying out his extortionate threats. . . .” Id. at
    854–55 (citation omitted).
    UNITED STATES V. OSINGER                     17
    In Shrader, the Fourth Circuit similarly rejected the
    defendant’s as-applied challenge. In that case, the defendant
    made a series of harassing phone calls to the victim and her
    family. See Shrader, 
    675 F.3d at 304
    . The Fourth Circuit
    observed that “[t]he statute contains three important elements.
    First, the defendant must possess either the intent to kill,
    injure, harass, or place under surveillance with intent to kill,
    injure, harass, or intimidate, or cause substantial emotional
    distress to a person in another State . . .” 
    Id.
     at 309–10
    (citation and internal quotation marks omitted). “Second, the
    defendant must pursue that intention through a course of
    conduct, defined as a pattern of conduct composed of 2 or
    more acts, evidencing a continuity of purpose, that makes use
    of a facility of interstate commerce[.]” 
    Id. at 310
     (citations
    and internal quotation marks omitted). “Finally, the
    defendant’s conduct must in fact cause substantial emotional
    distress to the intended victim or place that person in
    reasonable fear of the death of, or serious bodily injury . . .”
    
    Id.
     (citation, alterations, and internal quotation marks
    omitted).      Based on the defendant’s harassing and
    intimidating conduct, the Fourth Circuit held that “the statute
    clearly proscribed [the defendant’s] particular conduct in this
    case. There can be little doubt that [the defendant’s] conduct
    was harassing and intimidating . . .” 
    Id. at 312
    . As a result,
    the defendant’s “own words evince his intent to cause
    substantial emotional distress . . .” 
    Id.
     (citation and internal
    quotation marks omitted).
    We reach a similar conclusion in this case. Pursuant to
    18 U.S.C. § 2261A(2)(A), Osinger engaged in a course of
    conduct “with the intent . . . to . . . harass, or intimidate, or
    cause substantial emotional distress to” V.B. V.B. told
    Osinger repeatedly that she no longer wanted to be contacted
    by him. Nonetheless, Osinger was unrelenting in his pursuit
    18                  UNITED STATES V. OSINGER
    and harassment of her, including threatening text messages.
    Osinger designed a false Facebook page and sent emails to
    V.B.’s co-workers containing nude photographs of V.B. 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. Meredith,
    685 F.3d at 819–20. Pursuant to 18 U.S.C. § 2261A(2)(A),
    Osinger was on notice that his harassing and intimidating
    conduct “was criminal.” Harris, 705 F.3d at 932.6
    In the limited context of 18 U.S.C. § 2261A, Osinger’s
    speech is not afforded First Amendment protection for the
    6
    In United States v. Cassidy, 
    814 F. Supp. 2d 574
    , 588 (D. Md. 2011),
    the district court granted a motion to dismiss the indictment because
    18 U.S.C. § 2261A(2)(A) was unconstitutional as applied to the defendant.
    However, Cassidy is entirely distinguishable from the present appeal. In
    that case, the district court held that 18 U.S.C. § 2261A contravened the
    First Amendment as applied because the victim was “a well-known
    religious figure” and the defendant’s “Tweets and Blog posts about [the
    victim] challenge[d] her character and qualifications as a religious leader.”
    Id. at 583 (citation omitted). “And, while [the defendant’s] speech may
    have inflicted substantial emotional distress, the Government’s Indictment
    . . . [was] directed squarely at protected speech: anonymous,
    uncomfortable Internet speech addressing religious matters. . . .” Id.
    Other district courts have distinguished Cassidy in rejecting similar
    constitutional challenges to 18 U.S.C. § 2261A. See, e.g., United States
    v. Sayer, Nos. 2:11-CR-113-DBH, 2:11-CR-47-DBH, 
    2012 WL 1714746
    ,
    at *2–*3 (D. Me. May 15, 2012) (distinguishing Cassidy and concluding
    that the defendants’ online posting of sexually explicit material and
    harassment of the victim was not protected speech); United States v.
    Shepard, No. CR 10-1032-TUC-CKJ, 
    2012 WL 1580609
    , at *5, (D. Ariz.
    May 4, 2012) (holding that Cassidy was inapposite because the
    defendant’s use of the internet to stalk the victim was not protected
    speech).
    UNITED STATES V. OSINGER                    19
    additional reason that it involved sexually explicit
    publications concerning a private individual. In Petrovic, the
    Eighth Circuit observed that the victim was “a private
    individual” and that the defendant’s “communications
    revealed intensely private information about [the victim].”
    701 F.3d at 855 (citation omitted). The Eighth Circuit opined
    that “the interstate stalking statute is viewpoint neutral. It
    proscribes stalking and harassing conduct without making the
    further content discrimination of proscribing only certain
    forms of that conduct.” Id. at 855–56 (citation omitted).
    “[T]he intimately private facts and photographs revealed by
    [the defendant] were never in the public domain before [the
    defendant] began his campaign to humiliate [the victim].” Id.
    at 856. Additionally, “the public has no legitimate interest in
    the private sexual activities of [the victim] or in the
    embarrassing facts revealed about her life,” and “the
    information [the defendant] publicized to the community was
    highly offensive.”        Id. (citations omitted).       “The
    communications for which [the defendant] was convicted
    under § 2261A(2)(A) may be proscribed consistent with the
    First Amendment. The statute is not unconstitutional as
    applied to [the defendant].” Id.
    Osinger’s as-applied challenge is similarly unavailing
    given his intent to harass and intimidate a private individual
    by circulating sexually explicit publications that were never
    in the public domain. Applying the logic of Petrovic and
    Shrader, we reject Osinger’s as-applied challenge to
    18 U.S.C. § 2261A.
    20               UNITED STATES V. OSINGER
    B. Osinger’s Sentence
    1. Acceptance of Responsibility
    Osinger asserts that the district court erred in denying his
    request for a downward departure premised on acceptance of
    responsibility. According to Osinger, he intended to plead
    guilty and proceeded to trial only to preserve his
    constitutional challenge to 18 U.S.C. § 2261A.
    “The Sentencing Guidelines allow district courts to grant
    a two-level downward adjustment to a defendant who clearly
    demonstrates acceptance of responsibility for his offense.”
    Ramos-Medina, 706 F.3d at 940 (citation and internal
    quotation marks omitted). “The defendant bears the burden
    of showing that he has accepted responsibility for his
    actions.” Id. (citation omitted).
    At trial, Osinger did not simply pursue his First
    Amendment challenge to 18 U.S.C. § 2261A. Instead,
    Osinger asserted that his actions were the legal equivalent of
    “being prosecuted for ripping the label off a mattress. . . .”
    His counsel argued that Osinger was “charged with stalking
    in the absence of evidence to prove it. There is no history of
    any violence. There is no history of any threat of violence.
    There is no history that he ever waited outside her house.
    There is no history that he ever visited her in Los Angeles.”
    His counsel maintained that “[w]hat the government is asking
    in this case is that the conviction rest solely on the fact that
    somebody hurt somebody else’s feelings really, really badly.”
    Osinger also challenged the jurisdictional basis for the
    charges by arguing that he thought that he was
    communicating only with individuals in Chicago where
    Osinger resided. Osinger asserted that there was no evidence
    UNITED STATES V. OSINGER                      21
    of any threats and that he did not direct the e-mails to V.B.,
    as he sent them only to her co-workers. Osinger argued that
    there was “[n]o evidence of repetitious conduct and no
    evidence of malice. A love obsession is not malice. . . .”
    Finally, Osinger maintained that he was not guilty of stalking
    because he did not contact V.B. after sending the pictures.
    “On this record, the district court did not clearly err in finding
    that [Osinger’s] actions were inconsistent with acceptance of
    responsibility. . . .” Ramos-Medina, 706 F.3d at 942.
    In addition to challenging his guilt at trial, Osinger failed
    to demonstrate the requisite contrition to warrant a downward
    adjustment for acceptance of responsibility. See United
    States v. Dhingra, 
    371 F.3d 557
    , 568 (9th Cir. 2004), as
    amended (holding that the defendant “did not meet his burden
    of demonstrating ‘genuine contrition for his acts’”) (citation
    omitted). Osinger expressed that he “deeply regret[ted] his
    conduct.” However, he conveyed his regrets in the context
    that “as in many breakups things were said and done that
    people regret. Here, Mr. Osinger said and did things out of
    anger. . . .” Rather than directly accepting responsibility for
    his conduct, Osinger intimated that his actions stemmed from
    V.B.’s refusal to reconcile. Such equivocal expressions of
    contrition “did not meet [the defendant’s] burden of
    demonstrating genuine contrition for his acts,” and “it was not
    clearly erroneous for the district court to deny downward
    adjustment for acceptance of responsibility.” Dhingra,
    
    371 F.3d at 568
     (citation and internal quotation marks
    omitted).
    2. Sentencing Disparity
    Finally, Osinger contends that his sentence was
    unreasonable because another defendant received a more
    22              UNITED STATES V. OSINGER
    lenient sentence despite engaging in more extensive and
    intrusive stalking. However, Osinger was not similarly
    situated to the defendant who received a more lenient
    sentence after pleading guilty in a different case. See United
    States v. Espinoza-Baza, 
    647 F.3d 1182
    , 1195 (9th Cir. 2011)
    (“It does not matter for the purposes of § 3553(a) that [the
    defendant] can point to other criminal defendants who may
    have received lighter sentences under materially different
    circumstances. . . .”) (citation, alterations, and internal
    quotation marks omitted). Osinger’s sentencing disparity
    argument is undermined by his more extensive criminal
    history. See id. (observing that the defendant was not
    similarly situated to other defendants because “[t]here is
    nothing in the record suggesting that these other defendants
    had comparable criminal histories”) (citation omitted).
    Moreover, Osinger’s sentence was at the low end of the
    guidelines range. See United States v. Green, 
    592 F.3d 1057
    ,
    1072 (9th Cir. 2010) (“We have trouble imagining why a
    sentence within the Guidelines range would create a disparity,
    since it represents the sentence that most similarly situated
    defendants are likely to receive.”) (citation and alteration
    omitted). We hold that Osinger’s sentence was procedurally
    and substantively reasonable.
    IV.    CONCLUSION
    We adopt the reasoning articulated by the Eighth and
    Fourth Circuits in Petrovic and Shrader and hold that
    Osinger’s facial and as-applied challenges to 18 U.S.C.
    § 2261A are unavailing. Osinger’s threatening messages to
    V.B. and his sending of sexually explicit photographs to
    V.B.’s co-workers and friends unquestionably evinced
    Osinger’s intent to harass and intimidate V.B. and to cause
    substantial emotional distress. Osinger’s course of conduct
    UNITED STATES V. OSINGER                    23
    was unmistakably proscribed by 18 U.S.C. § 2261A, and any
    related speech was not afforded First Amendment protection,
    as it was integral to Osinger’s criminal conduct and involved
    sexually explicit publications concerning a private individual.
    The district court’s sentence of 46 months’ imprisonment,
    at the low end of the guidelines range, was reasonable
    because Osinger was not entitled to any downward
    adjustment premised on acceptance of responsibility or on
    sentencing disparity.
    AFFIRMED.
    WATFORD, Circuit Judge, concurring:
    I agree with my colleagues that Christopher Osinger’s
    conviction and sentence for violating 18 U.S.C. § 2261A
    should be affirmed, notwithstanding his First Amendment
    objections. I write separately to add a few additional
    thoughts on why Osinger’s as-applied challenge fails.
    I
    I agree with the court that Osinger’s speech isn’t entitled
    to First Amendment protection because it was “speech
    integral to criminal conduct.” See United States v. Stevens,
    
    559 U.S. 460
    , 468 (2010); Giboney v. Empire Storage & Ice
    Co., 
    336 U.S. 490
    , 502 (1949). This exception to the First
    Amendment has been and remains controversial; its
    boundaries and underlying rationale have not been clearly
    defined, leaving the precise scope of the exception unsettled.
    See Eugene Volokh, Speech as Conduct: Generally
    24               UNITED STATES V. OSINGER
    Applicable Laws, Illegal Courses of Conduct, “Situation-
    Altering Utterances,” and the Uncharted Zones, 
    90 Cornell L. Rev. 1277
    , 1311–26 (2005). But whatever difficulties may
    arise from application of the exception in other contexts, it
    surely applies when the defendant commits an offense by
    engaging in both speech and non-speech conduct, and the sole
    objective of the speech is to facilitate the defendant’s criminal
    behavior. In those circumstances, the defendant’s speech
    loses whatever First Amendment protection it might
    otherwise have enjoyed, even if the speech, considered in
    isolation, would be fully protected.
    That, in my view, is the proper reading of Giboney.
    There, a labor union engaged in non-speech conduct that
    amounted to, as the Court later put it, “a secondary boycott
    which a State had validly outlawed.” New York v. Ferber,
    
    458 U.S. 747
    , 762 n.14 (1982). Specifically, the union
    orchestrated a series of agreements among Kansas City ice
    distributors under which they pledged not to sell ice to non-
    union peddlers, conduct that violated Missouri’s anti-trade-
    restraint law. Giboney, 
    336 U.S. at 492
    . When the lone
    holdout distributor (Empire) refused to join the boycott, the
    union “informed Empire that it would use other means at its
    disposal to force Empire to come around to the union view.”
    
    Id.
     Union members began picketing Empire with placards
    protesting its willingness to deal with non-union peddlers.
    The “avowed immediate purpose of the picketing was to
    compel Empire to agree to stop selling ice to nonunion
    peddlers”—an agreement that would have been punishable as
    a felony under Missouri law. 
    Id.
     Empire sought an
    injunction prohibiting the picketing.
    Although the union was engaged in peaceful picketing
    that “publicize[d] truthful facts about a labor dispute”—
    UNITED STATES V. OSINGER                   25
    speech which, standing on its own, would have been fully
    protected under the First Amendment—the Court held that
    the union’s speech could not be “treated in isolation.” 
    Id. at 498
    . The union’s speech lost whatever First Amendment
    protection it might otherwise have enjoyed, the Court
    concluded, because it was “used as an integral part of conduct
    in violation of a valid criminal statute,” and its “sole
    immediate object” was to facilitate the union’s commission
    of that offense. 
    Id.
     That the union’s unlawful course of
    conduct “was in part initiated, evidenced, or carried out by
    means of language” mattered not for First Amendment
    purposes. 
    Id. at 502
    .
    Osinger’s case fits comfortably within this formulation of
    the exception for speech integral to criminal conduct. As in
    Giboney, we’re dealing with a valid criminal statute: No one
    disputes that, as a general matter, Congress has the power to
    punish those who engage in interstate stalking. And the court
    properly rejects Osinger’s facial challenge to the particular
    variant of that crime at issue here—engaging in a course of
    conduct intending to harass or inflict substantial emotional
    distress on a person in another State.             18 U.S.C.
    § 2261A(2)(A). As I’ll sketch out below, Osinger committed
    the crime of interstate stalking by engaging in a course of
    conduct that consisted of both speech and non-speech
    conduct. True, Osinger engaged in some speech that,
    considered in isolation, might have been entitled to First
    Amendment protection. But as the court correctly holds, that
    speech lost whatever protection it might have enjoyed
    because its “sole immediate object” was to facilitate his
    commission of the stalking offense. Giboney, 
    336 U.S. at 498
    .
    26              UNITED STATES V. OSINGER
    II
    Like many stalking offenses, this one began with a failed
    relationship. The victim in this case, V.B., broke up with
    Osinger when she discovered that he was married to another
    woman. A few months after V.B. ended their relationship,
    Osinger began showing up uninvited at V.B.’s home. On
    multiple occasions, he arrived around 1:00 or 2:00 a.m. and
    telephoned her or knocked at her window or door. V.B.
    refused to speak with him, but Osinger continued to make
    unwanted visits to her home anyway. He also appeared
    several times at the restaurant where V.B. worked. After
    these encounters, V.B. moved to another neighborhood,
    hoping that Osinger’s unwanted visits to her home, at least,
    would stop.
    They didn’t. As a repossession agent, Osinger could
    easily get addresses for people he wanted to find, and he
    successfully tracked V.B. down at her new home. The two
    briefly reconciled, but that ended when V.B. concluded that
    Osinger had given her fraudulent divorce papers and was
    seeing other women. After ending their relationship for the
    final time, V.B. moved in with her sister, hoping Osinger
    wouldn’t be able to find her there. But despite V.B.’s
    decision to conceal her new address from Osinger, he
    surprised her by showing up at her sister’s apartment. He
    also called her and sent her text messages. V.B. responded by
    telling Osinger their relationship was over.
    After a year of dealing with Osinger’s harassing behavior,
    V.B. moved from Illinois to California, in part to get away
    from him. She didn’t tell Osinger where she was moving,
    and she didn’t give him her new address. For months, she
    had no direct contact with him. V.B. appeared to have made
    UNITED STATES V. OSINGER                      27
    a clean break: She had a new job, a new home, and what she
    believed was a fresh start with Osinger out of her life.
    Then, out of the blue, Osinger started contacting V.B.
    again. Over the course of two days, she received
    approximately 40 text messages from him. The messages
    started out with declarations of love, but they quickly turned
    nasty—e.g., “You truly are the Devil.. I hate you I HATE
    U.”—when V.B. made it clear that she would not give him
    another chance. From there, Osinger’s messages took on a
    threatening tone:
    •   Trust me after this weeknd ur going to feel like I ass
    FUKD U.
    •   Am going to make sure u fucking hate me. After this
    weeknd.
    •   So buckle up. This ride isn’t over just yet!!! . . .
    •   If I was you I get a big bottle. To drink. Ur going to
    need it.
    •   So enjoy... What’s to come.
    •   [A]m about to pull the rug from rite under ur sexxy lil
    feet!!!
    That weekend, Osinger made good on his threats. V.B.
    got a call from an ex-boyfriend who told her that he had
    received a “friend” request from what appeared to be a fake
    Facebook account set up under her name (with a minor
    spelling error). When V.B. accessed the Facebook page, she
    was horrified by what she saw. Someone—Osinger, it turned
    28              UNITED STATES V. OSINGER
    out—had posted over 30 photos of V.B., many of them
    sexually explicit, organized into two albums titled “WHORE”
    and “WHORE2.” Some of the photos showed V.B. topless or
    bottomless. Others showed her partially or fully nude and
    masturbating. Still others showed her performing oral sex.
    The statements posted on the page, purportedly made by
    V.B., included: “I like to go out and be the whore I am I uslly
    get a job and fuck my bosses rite now I work for [company
    name redacted] look me up pass my pix around . . . I just
    move to [city redacted],” and “if you want video,, just send
    me ur email.” Osinger sent “friend” requests to V.B.’s family
    members and friends to encourage them to view the Facebook
    page.
    V.B. immediately called her boss to enlist his help in
    taking the Facebook page down before any more of her
    friends or family members saw it. During that call, V.B.’s
    boss told her that one of her co-workers, who also happened
    to be V.B.’s roommate, had just received a disturbing email
    sent to his company account. The email, sent by Osinger,
    stated that he knew the recipient was working with V.B.,
    offered supposed “tips” on what to do if the recipient wanted
    to sleep with V.B., and ended by saying, “if you want video
    send a mesg back I got tons.” The email attached some of the
    photos Osinger had posted on the Facebook page, depicting
    V.B. partially or fully nude and performing oral sex. Osinger
    later sent the same email, lewd photos included, to V.B.’s
    boss and one of V.B.’s former co-workers in Chicago, before
    the company’s IT department blocked Osinger’s email
    address.
    After learning about the fake Facebook page and the
    disturbing emails Osinger had sent to her co-workers, V.B.
    was understandably distraught. As she testified at trial, “I
    UNITED STATES V. OSINGER                    29
    was scared. I did not know what else he was going to try to
    do.” V.B. quickly sought and received a restraining order
    against Osinger.
    III
    As these facts show, Osinger engaged in a course of
    conduct that amounted to interstate stalking. It began in
    Illinois when he harassed V.B. by repeatedly showing up at
    her home and workplace, despite her efforts to avoid him. It
    continued after she moved to California, initially through a
    string of unwelcome and implicitly threatening text messages,
    and then through a fake Facebook page and emails sent to
    V.B.’s co-workers.
    The text messages, emails, and Facebook page constitute
    speech that, considered in isolation, might have been entitled
    to First Amendment protection. I say “might” because the
    notion that any of Osinger’s speech should receive full First
    Amendment protection is certainly debatable. The text
    messages quoted above were sent only to V.B., an unwilling
    listener, with no apparent purpose other than to harass or
    frighten her. See Eugene Volokh, One-to-One Speech vs.
    One-to-Many Speech, Criminal Harassment Laws, and
    “Cyberstalking,” 
    107 Nw. U. L. Rev. 731
    , 742–43 (2013).
    They formed part of the basis for Osinger’s prosecution not
    because of any expressive idea they communicated, see Saxe
    v. State Coll. Area Sch. Dist., 
    240 F.3d 200
    , 208 (3d Cir.
    2001), but rather because of the “implicit threat of conduct”
    they contained. Rodriguez v. Maricopa Cnty. Cmty. Coll.
    Dist., 
    605 F.3d 703
    , 710 (9th Cir. 2010). Still, there is no
    categorical exception to the First Amendment for harassing
    or offensive speech, 
    id. at 708
    , and it’s hard to say that the
    text messages rise to the level of “true threats” under Virginia
    30               UNITED STATES V. OSINGER
    v. Black, 
    538 U.S. 343
    , 359 (2003), the closest recognized
    exception, given their content and the absence of any history
    of violence between Osinger and V.B. With respect to the
    emails and Facebook page, they don’t fall within any
    currently recognized exception either; the Supreme Court has
    left unresolved whether the First Amendment protects
    unauthorized disclosure of intensely private facts about a
    purely private figure. See Time, Inc. v. Hill, 
    385 U.S. 374
    ,
    383 n.7 (1967); cf. Snyder v. Phelps, 
    131 S. Ct. 1207
    , 1217
    (2011) (suggesting that highly offensive speech on matters of
    purely private concern might not be insulated from civil
    liability). All of this is simply a long way of saying that we
    have to assume Osinger engaged in at least some speech that
    could be constitutionally protected.
    None of that speech is entitled to constitutional protection
    here, however, because all of it falls within the exception for
    speech integral to criminal conduct. Osinger used the text
    messages, emails, and Facebook page “as an integral part of
    conduct in violation of a valid criminal statute,” Giboney,
    
    336 U.S. at
    498—namely, his ongoing campaign to harass
    V.B. through repeated unwanted contacts. Unable to harass
    her in person after she left Illinois, he used speech to continue
    the campaign. See John B. Major, Note, Cyberstalking,
    Twitter, and the Captive Audience: A First Amendment
    Analysis of 18 U.S.C. § 2261A(2), 
    86 S. Cal. L. Rev. 117
    , 126
    (2012). Because the “sole immediate object” of Osinger’s
    speech was to facilitate his commission of the interstate
    stalking offense, that speech isn’t entitled to constitutional
    protection. Giboney, 
    336 U.S. at 498
    .
    What makes this a straightforward case is the fact that
    Osinger committed the offense by engaging in both speech
    and unprotected non-speech conduct. For the speech-
    UNITED STATES V. OSINGER                   31
    integral-to-criminal-conduct exception to apply, the conduct
    need not have been criminal on its own; it’s enough if the
    conduct and speech together “constituted a single and
    integrated course of conduct, which was in violation of [a]
    valid law.” 
    Id.
     Here, the non-speech conduct consisted of in-
    person harassment, which, together with the text messages,
    emails, and Facebook page, violated § 2261A(2). In other
    cases the non-speech conduct might consist of categorically
    unprotected speech, like the extortionate threats in United
    States v. Petrovic, 
    701 F.3d 847
    , 855 (8th Cir. 2012), or non-
    communicative aspects of speech, like repeated unwanted
    telephone calls that are harassing due to their sheer number
    and frequency. See Gormley v. Dir., Conn. State Dep’t of
    Probation, 
    632 F.2d 938
    , 941–42 (2d Cir. 1980).
    Cases in which the defendant’s harassing “course of
    conduct” consists entirely of speech that would otherwise be
    entitled to First Amendment protection are less
    straightforward. The Court in Giboney made clear that the
    union’s picketing lost its First Amendment protection only
    because the union was “doing more than exercising a right of
    free speech or press.” 
    336 U.S. at 503
    . If a defendant is
    doing nothing but exercising a right of free speech, without
    engaging in any non-speech conduct, the exception for speech
    integral to criminal conduct shouldn’t apply. Instead, when
    pure speech is involved, the Court has suggested that the
    government’s ability “to shut off discourse solely to protect
    others from hearing it” depends on “a showing that
    substantial privacy interests are being invaded in an
    essentially intolerable manner.” Cohen v. California,
    
    403 U.S. 15
    , 21 (1971). It’s unclear whether this standard
    would apply in a § 2261A prosecution in which the defendant
    caused someone substantial emotional distress by engaging
    32             UNITED STATES V. OSINGER
    only in otherwise protected speech. That is a question whose
    resolution we wisely leave for another day.
    

Document Info

Docket Number: 11-50338

Citation Numbers: 753 F.3d 939

Judges: Graber, Johnnie, Paul, Rawlinson, Susan, Watford

Filed Date: 6/4/2014

Precedential Status: Precedential

Modified Date: 8/31/2023

Authorities (20)

david-m-veile-veile-mortuary-inc-plaintiffs-counter-v-gordon-d , 258 F.3d 1180 ( 2001 )

Mary Gormley v. Director, Connecticut State Department of ... , 632 F.2d 938 ( 1980 )

United States v. Jae Gab Kim , 449 F.3d 933 ( 2006 )

United States v. Shrader , 675 F.3d 300 ( 2012 )

Adams v. Ford Motor Co. , 653 F.3d 299 ( 2011 )

david-warren-saxe-student-doe-1-by-and-through-his-next-friend-david , 240 F.3d 200 ( 2001 )

Snyder v. Phelps , 131 S. Ct. 1207 ( 2011 )

United States v. Green , 592 F.3d 1057 ( 2010 )

United States v. Bagdasarian , 652 F.3d 1113 ( 2011 )

Rodriguez v. MARICOPA CTY. COMMUNITY COLLEGE DIST. , 605 F.3d 703 ( 2010 )

United States v. Kilbride , 584 F.3d 1240 ( 2009 )

United States v. Espinoza-Baza , 647 F.3d 1182 ( 2011 )

United States v. Rakesh Dhingra , 371 F.3d 557 ( 2004 )

United States v. Cassidy , 814 F. Supp. 2d 574 ( 2011 )

New York v. Ferber , 102 S. Ct. 3348 ( 1982 )

Giboney v. Empire Storage & Ice Co. , 69 S. Ct. 684 ( 1949 )

Time, Inc. v. Hill , 87 S. Ct. 534 ( 1967 )

Cohen v. California , 91 S. Ct. 1780 ( 1971 )

Virginia v. Black , 123 S. Ct. 1536 ( 2003 )

United States v. Stevens , 130 S. Ct. 1577 ( 2010 )

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