In the song, “Hello,” Adele sings as a jilted lover, calling “a thousand times… to tell you I’m sorry.” It became a hit song in 2015.

Contrast that with the facts of U.S. v. Hobgood, out of the Eighth Circuit, where the defendant had a brief romantic relationship with “KB,” who later rebuffed the defendant’s advances and moved out of town. Defendant Hobgood “began contacting her via e-mail, Facebook messages, and third-party text messages to demand that she apologize to him in person for her treatment of him.” [cue the Adele music]

When KB declined, Hobgood “created publicly accessible social media accounts in which he portrayed KB as an exotic dancer and prostitute. Hobgood also sent letters to KB’s employer through the mail and over the Internet claiming that KB was an exotic dancer and prostitute. Hobgood contacted KB and KB’s family by email, stating that unless she apologized to him, he would continue to make these representations.”

According to the opinion, Hobgood admitted to the communications and “told investigators that he would not stop contacting KB until he caused her to lose her job, or caused her to “repent” for the unspecified wrong that she committed against him.” Law enforcement was, on its own, able to corroborate that Hobgood had made the social media accounts.

Hobgood claims that the charge (interstate stalking) was a violation of his First Amendment rights. The panel disagreed based upon the following steps:

1. While content restrictions are permitted in few, limited areas, one exception is “speech integral to criminal conduct.”
2. Hobgood’s communications, which demanded an apology or else he would continue to spread the social media posts, was criminal extortion.
3. The demand for an apology was a “thing of value” under the extortion statute even though it was an intangible thing. He had no claim of right to the apology and the threat (I’ll spread these posts) was unrelated to that right.
4. Even though Hobgood was not charged with extortion, it overlapped with the statutory crime under which he had been charged.

A couple of take-aways:

• This “speech integral to criminal conduct” is a rarely invoked exception to First Amendment protection. It is not too far removed from the “true threat” exception which, not too long ago, received U.S. Supreme Court attention relative to an internet/social media case. (Elonis v. US). Of note, there is no “harassment exception” to the First Amendment (see Saxe v. State Coll. Area. Sch Dist.)
• Noticeably absent from the opinion is a clear indication of whether or not what he said was true (I’m not trying to impugn KB here). Under the exception, truth is not a defense. In the Giboney v. Empire Storage & Ice Co. case from 1949, a union picketed a business demanding that they not sell ice to non-union “ice peddlers,” which was a violation of a “restraint of trade” statute. The truth or falsity of the speech does not factor; it is whether the (otherwise protected speech) is “integral” to criminal conduct. In Giboney, it was speech trying to push Empire to retrain trade and, in Hobgood, it was speech compel an apology.
• According to Hobgood’s reply brief, the government’s primary argument had been that Hobgood’s speech was integral to criminal conduct because it was made with the intent to harass, intimidate, or cause distress. Apparently the district court did not agree so the government raised the extortion argument.
• For a deep dive into the “speech integral to criminal conduct,” check out Professor Eugene Volokh’s (pre-Elonis) article, The Speech Integral to Criminal Conduct Exception.
• For a deeper dive on the facts, see this news article.
• One cannot vouch for the accuracy of the facts in the following articles, but for some (unverified) information and a different spin, see this article with photos and screenshots and this (presumably non-lawyer) opinion.

Image credit: PxHere.com