Threatening messages sent to family members of victims of Marjory Stoneman Douglas shooting were not protected speech.

Brandon Fleury was posting and messaging on Instagram posing as mass murderer Nikolas Cruz, the perpetrator of the shooting at Marjory Stoneman Douglas High School (MSD), which took place on February 14, 2018, when Cruz brought a AR-15 style semi-automatic rifle into the school located in Parkland, Florida, and murdered seventeen students and faculty members. Between December 22, 2018 and January 9, 2019, Fleury used aliases like nikolas.killed.your.sister, the.douglas.shooter, and Teddykillspeople (referencing Ted Bundy) and sent victims’ family members and friends taunting and harassing messages that put them in fear for their own lives.  After the messages were traced to Fleury, he was charged in federal court in the Southern District of Florida with transmitting interstate threats and cyberstalking.  His charges were based on posts and messages sent to three individuals who lost loved ones in the MSD shooting. Following a jury trial, he was convicted.

In his appeal Fleury argued that the cyberstalking statute he was charged under was unconstitutionally overbroad because it encompasses a wide-ranging sweep of protected speech, including a substantial amount of speech on matters of public policy, simply for causing an emotional reaction.  He also argued that the statute is unconstitutional as applied to his conduct because it amounts to a content-based restriction limiting speech on the basis of whether that speech is emotionally distressing.  Fleury also argued the speech at issue was on a matter of public concern and therefor entitled to special protection.

The federal court of appeals did not see it the same way as Fleury.  It found he did not meet his burden of demonstrating the statutes is unconstitutional. As to Fleury’s facially overbroad argument it found that he ignored key statutory elements of the statute that narrow the conduct it applies to, including for example proof that the defendant acted with intent to kill, injure, harass, or intimidate and evidence that the defendant engaged in a course of conduct consisting of two or more acts evidencing a continuity of purpose.  The mere fact that the defendant can conceive of some impermissible applications of a statute is not sufficient to render it susceptible to an overbreadth challenge.  While Fleury can present limited instances in which the statute could apply to constitutionally protected speech, his case is not one of them.

His speech did not concern a matter of public concern and the statute did not restrict the content of his speech.  When viewing Fleury’s messages within the context of his entire course of conduct, including the sheer number and frequency of the messages, they created the visual of an anonymous persistent tormenter who desires to harm the victims.  This is precisely the type of fear that the “true threats” doctrine is intended to prevent.  The trial court correctly found that Fleury’s messages amounted to true threats and were not afforded protection under the First Amendment.

The court of appeals rejected Fleury’s sufficiency of the evidence argument finding that the evidence presented to the jury was sufficient evidence of Fleury’s subjective intent to threaten.  The court found no error in allowing the government to call as a witness an expert in forensic psychiatry who evaluated Fleury and explained that Fleury’s attraction to the domineering and taunting characteristics of serial killers motivated him to send intimidating messages and that he could appreciate the emotional impact of his messages on his victims.