Defining True Threats in Cyberstalking Law: Upholding § 2261A(2)(B) Against First Amendment Challenges

Introduction

This commentary examines the Fifth Circuit’s decision in United States v. Jubert (5th Cir. 2025), which addressed key First Amendment challenges to the federal cyberstalking statute, 18 U.S.C. § 2261A(2)(B). The defendant, Justin Gregory Jubert, conducted a sustained online campaign of harassment and threats against his former employer, M.R., M.R.’s wife, and their two minor daughters. Jubert pleaded guilty to cyberstalking but preserved his right to challenge the statute both on facial grounds (overbreadth) and as applied to his conduct (true-threat exception). The Fifth Circuit affirmed, holding that (1) Jubert’s messages constituted “true threats” unprotected by the First Amendment, and (2) § 2261A(2)(B) is neither overbroad nor constitutionally infirm in its ordinary applications.

Summary of the Judgment

The Fifth Circuit was asked two primary questions:

Is § 2261A(2)(B) facially overbroad under the First Amendment?
Did Jubert’s online harassment qualify as a “true threat,” thus falling outside First Amendment protection?

The court answered both in the negative, and accordingly affirmed the district court’s denial of Jubert’s motion to dismiss:

As‐Applied Challenge: Jubert’s sustained harassment—including explicit calls to “execute” M.R., posts of the family’s photos, tracking of his daughters’ activities, and statements about “serial killing”—met the two-pronged test for true threats: (a) an objectively reasonable person would interpret the speech as a serious expression of intent to do harm, and (b) the speaker was subjectively aware of its threatening nature. True threats are categorically unprotected speech.
Facial Overbreadth Challenge: Section 2261A(2)(B) targets a “course of conduct” (two or more acts) intended to harass, intimidate, injure, or kill and causing substantial emotional distress. Such a statute is directed at conduct, not ideas or viewpoints. Because its legitimate applications vastly outweigh any arguable chilling effect on protected speech, it is not overbroad.

Analysis

1. Precedents Cited

Abrams v. United States (1919): Emphasized that the First Amendment protects speech that “provokes, disturbs, or offends.”
Virginia v. Black (2003) & Counterman v. Colorado (2023): Defined “true threats” as serious expressions of intent to commit violence, unprotected by the First Amendment.
Elonis v. United States (2015): Held that the threatening nature of a statement is judged by its effect on the recipient, not solely the speaker’s subjective intent to threaten.
Porter v. Ascension Parish School Board (2004): Established the objective‐reasonable‐listener standard for true threats.
Ashcroft v. ACLU (2002) & United States v. Alvarez (2012): Explained that the First Amendment does not protect narrow “historic and traditional categories” of unprotected speech, including true threats.
Bucklew v. Precythe (2019) & Buchanan v. Alexander (2019): Clarified facial vs. as‐applied challenges and advised that courts first address the narrower as‐applied question.
Yung (3d Cir. 2022), Fleury (11th Cir. 2021), Ackell (1st Cir. 2018): All held § 2261A(2)(B) not overbroad or void for vagueness, often employing limiting constructions.

2. Legal Reasoning

The Fifth Circuit’s reasoning unfolds in two steps:

a. True-Threat, As-Applied Inquiry

Objective Prong: Would a reasonable recipient interpret Jubert’s repeated posts as a serious intent to harm? Yes—examples included explicit calls to kill, sharing private photos, and tracking minor children’s locations.
Subjective Prong: Was Jubert aware that his statements were threatening? Yes—he took deliberate measures (multiple Facebook accounts, comments designed to reach the victims) to instill fear.
Result: Speech meeting these criteria is categorically excluded from First Amendment protection.

b. Overbreadth, Facial Inquiry

A statute is overbroad only if it prohibits a substantial amount of protected speech relative to its legitimate sweep. The court observed:

Textual Limits: § 2261A(2)(B) requires (1) at least two communications, (2) intent to harass/intimidate/injure/kill, and (3) substantial emotional distress. It targets a “course of conduct,” not isolated utterances.
Conduct vs. Speech: The statute criminalizes abusive behavior, not mere expression of unpopular ideas. Intimidation and harassment are synonyms for true threats—already unprotected speech.
Mens Rea: The requirement of specific intent to harass or intimidate further confines the statute to purposeful wrongdoing, excluding accidental or innocuous messages.
Common-Law Anchoring: “Substantial emotional distress” has a well-defined tort meaning, limiting the statute to serious harms.

Given its clear focus on harmful conduct, any potential sweep is minimal and does not warrant invalidation.

3. Impact

This decision reaffirms the federal government’s ability to prosecute serious online harassment under § 2261A(2)(B) without running afoul of the First Amendment. Key takeaways for future cases:

Courts will apply the two-pronged “true threat” test faithfully, protecting recipients from fear-inducing online conduct.
Broad facial challenges to cyberstalking laws will face an uphill battle unless challengers can show a substantial chilling effect on protected speech.
Statutory elements (course of conduct, intent to harass/intimidate, substantial emotional distress) are robust safeguards against overreach.
Other circuits’ limiting constructions enjoyed wide acceptance, and the Fifth Circuit’s alignment reduces the risk of a multi-circuit split.

Complex Concepts Simplified

True Threat: A serious expression of intent to commit violence, judged by how a reasonable person receives it, not by whether the speaker actually intends to carry it out.
Facial vs. As-Applied Challenge:
- Facial: Attacking a law as unconstitutional in every or most applications.
- As-Applied: Attacking a law’s constitutionality in the specific circumstances of the defendant’s conduct.
Overbreadth Doctrine: Allows pre-enforcement challenges if a law’s legitimate applications are outweighed by its potential to chill protected speech. It is “strong medicine” used sparingly.
Course of Conduct: A pattern of two or more acts showing continuity of purpose—distinguishes repeated harassment from isolated speech.
Substantial Emotional Distress: Recognized in tort law as serious mental anguish or fear, not mere annoyance or upset.

Conclusion

United States v. Jubert solidifies the principle that federal cyberstalking prosecutions under 18 U.S.C. § 2261A(2)(B) are consistent with the First Amendment when they target true threats and sustained campaigns of harassment. By confirming that (1) true threats are unprotected and (2) the statute’s text, mens rea requirement, and course-of-conduct focus confine it to unprotected conduct, the Fifth Circuit ensures that legitimate free-speech interests remain intact while addressing evolving forms of online violence. This decision will guide both lower courts and lawmakers in balancing robust free-speech protections against the need to shield individuals and families from the fear and disruption caused by digital intimidation.