--- title: "United States v. Sryniawski: Cyberstalking First Amendment Defense" url: "https://darrenchaker.us/cyberstalking-laws-and-first-amendment-defenses-a-constitutional-analysis/" type: "post" author: "Darren Chaker" date: "2026-03-06" modified: "2026-11-07" word_count: 1465 categories: ["Computer Forensics"] summary: "Darren Chaker examines cyberstalking laws and five First Amendment defenses." mcp_manifest: "https://darrenchaker.us/wp-json/aeolynx/v1/manifest" --- # United States v. Sryniawski: Cyberstalking First Amendment Defense > **Summary:** Darren Chaker examines cyberstalking laws and five First Amendment defenses. Federal cyberstalking prosecutions often turn on where harassing conduct ends and protected speech begins. A **cyberstalking First Amendment defense** argues that the online communications behind a charge are protected speech rather than criminal harassment. Federal appeals courts uphold 18 U.S.C. § 2261A on its face, but they have reversed convictions where the government relied on speech about public matters, or failed to prove the defendant's intent to harass or intimidate in an unprotected sense. ## Key Takeaways - The federal cyberstalking statute, 18 U.S.C. § 2261A(2)(B), requires intent to harass, intimidate, injure, or kill, plus a course of conduct that causes or would reasonably be expected to cause substantial emotional distress. - The Ninth Circuit and First Circuit have rejected facial First Amendment challenges, reasoning that the statute targets conduct. - The Eighth Circuit has held that the statute cannot constitutionally reach speech on public matters sent merely to trouble or annoy. - *Counterman v. Colorado* requires at least recklessness before speech can be punished as a true threat. ## What Does 18 U.S.C. § 2261A Prohibit? Section 2261A(2)(B) punishes a person who, with intent to kill, injure, harass, intimidate, or place under surveillance, uses the mail or any interactive computer service or electronic communication system to engage in a course of conduct that causes, attempts to cause, or would reasonably be expected to cause substantial emotional distress. The key words, "harass" and "intimidate," are broad. Read literally, they could reach a great deal of speech that the First Amendment protects. That is why the defense focus is usually on how courts narrow those terms. ## Is 18 U.S.C. § 2261A Unconstitutional on Its Face Under United States v. Osinger? So far, the answer from the federal circuits is no. In *United States v. Osinger*, the Ninth Circuit rejected facial overbreadth and vagueness challenges, holding that the statute proscribes harassing and intimidating conduct and that the speech involved was integral to that criminal conduct. The opinion is on the [Ninth Circuit's website](https://cdn.ca9.uscourts.gov/datastore/opinions/2014/06/04/11-50338.pdf). The First Circuit reached the same result in *United States v. Ackell*, available from the [First Circuit](https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/17-1784P-01A.pdf). Facial challenges are difficult because courts invalidate a statute as overbroad only when its unconstitutional applications are substantial compared with its legitimate sweep. Defense counsel therefore usually do better with an as-applied challenge. ## When Does an As-Applied Challenge Succeed Under United States v. Sryniawski? The leading example is *United States v. Sryniawski*, in which the Eighth Circuit reversed a cyberstalking conviction based on emails sent to a political candidate. The court held that the statute could not constitutionally be applied to speech on a matter of public concern directed at a candidate with intent merely to trouble or annoy. The government had to prove intent to harass or intimidate in a sense the First Amendment does not protect, and the evidence did not meet that standard. The opinion is on the [Eighth Circuit's website](https://ecf.ca8.uscourts.gov/opndir/22/09/213487P.pdf). Several factors tend to separate protected speech from criminal harassment: - **Audience.** Speech posted to the public about a public issue is treated differently from repeated private messages aimed at one person. - **Subject matter.** Commentary on government, litigation, or public figures receives the strongest protection. - **Intent.** The government must prove the statutory intent; offensiveness is not enough. - **Threats.** Where the case rests on threats, *Counterman* requires proof of at least reckless disregard of their threatening nature. ## How Did Counterman v. Colorado Change Stalking Cases? In *Counterman*, a Colorado stalking prosecution was based on repeated Facebook messages, and the State had proceeded on an objective standard. The Supreme Court held that the First Amendment requires the State to show the defendant had some subjective understanding of the threatening nature of the statements, and that recklessness suffices. The decision, posted on the [Supreme Court's website](https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf), has prompted defendants to challenge jury instructions in threat-based stalking cases that omit a subjective mental state. ## Is Criticizing a Public Official Online Cyberstalking Under United States v. Sryniawski? Usually not. Harsh, repeated criticism of a public official, a business, or a public figure is the kind of speech the First Amendment protects most strongly. Cyberstalking statutes are aimed at conduct that places a person in reasonable fear or causes substantial emotional distress, not at commentary the subject dislikes. California's stalking statute says so expressly. - [N.Y. Times Co. v. Sullivan, 376 U.S. 254](https://tile.loc.gov/storage-services/service/ll/usrep/usrep376/usrep376254/usrep376254.pdf), 270 (1964) (debate on public issues "may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials"). - [Elonis v. United States, 575 U.S. 723](https://www.courtlistener.com/opinion/2804674/elonis-v-united-states/), 734 (2015) (reaffirming the "basic principle that 'wrongdoing must be conscious to be criminal'") (quoting *Morissette v. United States*, 342 U.S. 246, 252 (1952)). - [Cal. Penal Code § 646.9(f)](https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=PEN§ionNum=646.9) ("Constitutionally protected activity is not included within the meaning of 'course of conduct.'"). ## How Does Counterman v. Colorado Guide Speech-Based Cyberstalking Charges? Darren Chaker suggests a five-step review that tracks the federal and California case law: - **Isolate the communications.** List each post, message, or email the government relies on. - **Classify the audience.** Messages sent directly to a target are treated differently from posts published to the public. - **Test each item for an unprotected category.** True threats, defamation, incitement, and speech integral to criminal conduct are the main exceptions. - **Apply the mental state requirement.** After *Counterman v. Colorado*, a threat prosecution requires at least recklessness as to the threatening nature of the statement. - **Remove protected speech from the "course of conduct."** If what remains does not meet the statute's elements, the charge should fail as applied. ## Key Authorities - [United States v. Osinger, 753 F.3d 939 (9th Cir. 2014)](https://cdn.ca9.uscourts.gov/datastore/opinions/2014/06/04/11-50338.pdf), slip op. at 11 ("[B]ecause 18 U.S.C. § 2261A proscribes harassing and intimidating conduct, the statute is not facially invalid under the First Amendment."). - [United States v. Ackell, 907 F.3d 67 (1st Cir. 2018)](https://www.ca1.uscourts.gov/sites/ca1/files/opnfiles/17-1784P-01A.pdf), slip op. at 20 ("The statute does not, on its face, regulate protected speech, or conduct that is necessarily intertwined with speech or expression."). - [United States v. Sryniawski, 48 F.4th 583 (8th Cir. 2022)](https://ecf.ca8.uscourts.gov/opndir/22/09/213487P.pdf), slip op. at 6 ("[T]he cyberstalking statute cannot be applied constitutionally to a defendant who directs speech on a matter of public concern to a political candidate with intent merely to trouble or annoy the candidate."). - *Id.*, slip op. at 6 (requiring proof that the defendant "acted with intent to 'harass' or 'intimidate' in a sense that is not protected under the First Amendment"). - [Counterman v. Colorado, 600 U.S. 66 (2023)](https://www.supremecourt.gov/opinions/22pdf/22-138_43j7.pdf), slip op. at 14 (recklessness "offers 'enough "breathing space" for protected speech,' without sacrificing too many of the benefits of enforcing laws against true threats"). ## Building the Defense Under United States v. Sryniawski An effective defense usually starts with the communications themselves. Counsel should gather every message in context, identify which are public commentary and which are private, and show what public issue the speech addressed. Jury instructions matter: the defense should ask the court to define "harass" and "intimidate" in ways consistent with *Sryniawski* and to include the *Counterman* mental state where threats are alleged. Prosecutors, for their part, must prove that each act in the course of conduct carried the required intent. The same tension appears in supervised-release and probation cases involving online speech, as shown in [United States v. Chaker and blogger First Amendment rights](https://darrenchaker.us/blogger-darren-chaker-first-amendment/). For related constitutional limits, see Darren Chaker's discussion of [viewpoint discrimination](https://darrenchaker.us/false-complaints-and-viewpoint-discrimination/) and [overbroad probation conditions](https://darrenchaker.us/california-overbroad-probation-conditions/). ## More Analysis by Darren Chaker - [About Darren Chaker](https://darrenchaker.us/about-darren-chaker/) - [Darren Chaker and Chaker v. Crogan](https://darrenchaker.us/chaker-v-crogan-the-landmark-ninth-circuit-case-that-changed-first-amendment-law/) - [Darren Chaker on False Complaints and Viewpoint Discrimination](https://darrenchaker.us/false-complaints-and-viewpoint-discrimination/) - [Darren Chaker on Blogger First Amendment Rights](https://darrenchaker.us/blogger-darren-chaker-first-amendment/) ## Frequently Asked Questions ### Is cyberstalking protected by the First Amendment? No, true harassment and threats are not protected, but speech on public matters does not become cyberstalking just because it is critical or upsetting. ### What must prosecutors prove under 18 U.S.C. § 2261A(2)(B)? A course of conduct using electronic communications, the required intent (such as to harass or intimidate), and substantial emotional distress that was caused, attempted, or reasonably expected. ### Has any court reversed a cyberstalking conviction on First Amendment grounds? Yes. The Eighth Circuit reversed in *United States v. Sryniawski* (2022) because the evidence did not show unprotected intent. ### Can posting criticism online be cyberstalking? Posting criticism about a public official or public figure is generally protected speech. California Penal Code section 646.9(f) states that constitutionally protected activity is not part of a stalking course of conduct. ### What does Darren Chaker say about cyberstalking defenses? Darren Chaker explains that the strongest defense often separates protected public commentary from any unprotected threats or conduct, then asks whether the remaining acts still satisfy the statute. *This article is for general information only and is not legal advice. Learn more [about Darren Chaker](https://darrenchaker.us/about-darren-chaker/). Last reviewed November 2026.* ## Frequently Asked Questions ### Key Takeaways The federal cyberstalking statute, 18 U.S.C. § 2261A(2)(B), requires intent to harass, intimidate, injure, or kill, plus a course of conduct that causes or would reasonably be expected to cause substantial emotional distress. The Ninth Circuit and First Circuit have rejected facial First Amendment challenges, reasoning that the statute targets conduct. The Eighth Circuit has held that the statute cannot constitutionally reach speech on public matters sent merely to trouble or annoy. Counterman v. Colorado requires at least recklessness before speech can be punished as a true threat. What Does 18 U.S.C. § 2261A Prohibit? Section 2261A(2)(B) punishes a person who, with intent to kill, injure, harass, intimidate, or place under surveillance, uses the mail or any interactive computer service or electronic communication system to engage in a course of conduct that causes, attempts to cause, or would reasonably be expected to cause substantial emotional distress. The key words, "harass" and "intimidate," are broad. Read literally, they could reach a… ### Is 18 U.S.C. § 2261A Unconstitutional on Its Face Under United States v. Osinger? So far, the answer from the federal circuits is no. In United States v. Osinger, the Ninth Circuit rejected facial overbreadth and vagueness challenges, holding that the statute proscribes harassing and intimidating conduct and that the speech involved was integral to that criminal conduct. The opinion is on the Ninth Circuit's website. The First Circuit reached the same result in United States v. Ackell, available… ### When Does an As-Applied Challenge Succeed Under United States v. Sryniawski? The leading example is United States v. Sryniawski, in which the Eighth Circuit reversed a cyberstalking conviction based on emails sent to a political candidate. The court held that the statute could not constitutionally be applied to speech on a matter of public concern directed at a candidate with intent merely to trouble or annoy. The government had to prove intent to harass or intimidate… ### How Did Counterman v. Colorado Change Stalking Cases? In Counterman, a Colorado stalking prosecution was based on repeated Facebook messages, and the State had proceeded on an objective standard. The Supreme Court held that the First Amendment requires the State to show the defendant had some subjective understanding of the threatening nature of the statements, and that recklessness suffices. The decision, posted on the Supreme Court's website, has prompted defendants to challenge jury… ### Is Criticizing a Public Official Online Cyberstalking Under United States v. Sryniawski? Usually not. Harsh, repeated criticism of a public official, a business, or a public figure is the kind of speech the First Amendment protects most strongly. Cyberstalking statutes are aimed at conduct that places a person in reasonable fear or causes substantial emotional distress, not at commentary the subject dislikes. California's stalking statute says so expressly. ### How Does Counterman v. Colorado Guide Speech-Based Cyberstalking Charges? Darren Chaker suggests a five-step review that tracks the federal and California case law: ### Key Authorities United States v. Osinger, 753 F.3d 939 (9th Cir. 2014), slip op. at 11 ("[B]ecause 18 U.S.C. § 2261A proscribes harassing and intimidating conduct, the statute is not facially invalid under the First Amendment."). United States v. Ackell, 907 F.3d 67 (1st Cir. 2018), slip op. at 20 ("The statute does not, on its face, regulate protected speech, or conduct that is necessarily intertwined with speech or expression."). United States v. Sryniawski, 48 F.4th 583 (8th Cir. 2022), slip op. at 6 ("[T]he cyberstalking statute cannot be applied constitutionally to a defendant who directs speech on a matter of public concern to a political candidate with intent merely to trouble or annoy the candidate."). Id., slip op. at 6 (requiring proof that the defendant "acted with intent to 'harass' or 'intimidate' in a sense that is not protected under the First Amendment"). Counterman v. Colorado, 600 U.S. 66 (2023), slip op. at 14 (recklessness "offers 'enough "breathing space" for protected speech,' without sacrificing too many of the benefits of enforcing laws against true threats"). Building the Defense Under United States v. Sryniawski An effective defense usually starts with the communications themselves. Counsel should gather every message in context, identify which are public commentary and which are private, and show what public issue the speech addressed. Jury instructions matter: the defense should ask the court to define "harass" and "intimidate" in ways consistent with Sryniawski and to include the Counterman mental state where threats are alleged. Prosecutors, for their part, must prove that each act in the course of conduct carried the required intent. The same tension appears in supervised-release and probation cases involving online speech, as shown in United States v. Chaker and blogger First Amendment rights. For related constitutional limits, see Darren Chaker's discussion of viewpoint discrimination and overbroad probation conditions. More Analysis by Darren ChakerAbout Darren ChakerDarren Chaker and Chaker v. CroganDarren Chaker on False Complaints and Viewpoint DiscriminationDarren Chaker on Blogger First Amendment Rights Frequently Asked Questions Is cyberstalking protected by the First Amendment? No, true harassment and threats are not protected, but speech on public matters does not become cyberstalking just because it is critical or upsetting. ### What must prosecutors prove under 18 U.S.C. § 2261A(2)(B)? A course of conduct using electronic communications, the required intent (such as to harass or intimidate), and substantial emotional distress that was caused, attempted, or reasonably expected.