Case Information
United States Court of Appeals for the Fifth Circuit ____________ United States Court of Appeals Fifth Circuit FILED June 4, 2025 ____________ Lyle W. Cayce Clerk United States of America, Plaintiff—Appellee , versus
Justin Gregory Jubert,
Defendant—Appellant . ______________________________ Appeal from the United States District Court for the Southern District of Mississippi USDC No. 1:23-CR-109-1 ______________________________ Before Stewart, Clement, and Willett, Circuit Judges .
Carl E. Stewart , Circuit Judge :
The First Amendment protects speech that provokes, disturbs, or even offends. That is, after all, “the theory of our Constitution.” [1] But speech that threatens real harm crosses a different line.
Justin Gregory Jubert pleaded guilty to cyberstalking under 18 U.S.C. § 2261A(2)(B), preserving his right to challenge that law under the First Amendment. He argues that the statute goes too far, punishing protected
_____________________
[1]
Abrams v. United States
,
We address two questions: (1) whether the statute is facially overbroad, and (2) whether Jubert’s own conduct qualifies as a true threat. We conclude that the statute is not overbroad and that his conduct lies beyond constitutional protection. For these reasons, we AFFIRM .
I Jubert was charged with one count of cyberstalking under 18 U.S.C. § 2261A(2)(B) and one count of transmitting a threatening communication in interstate commerce. The charges stemmed from a monthslong online campaign during which Jubert threatened, harassed, and intimidated the victim—referred to here as M.R.—as well as M.R.’s wife and their two minor daughters.
The history between the two stretched back decades. In 2002, M.R., then a camp director at a summer camp in Bay St. Louis, Mississippi, fired Jubert from his role as a camp counselor. Nearly twenty years later, Jubert resurfaced—this time online. Between late May and August 2023, he used six separate Facebook accounts to post threats, insults, and menacing messages directed at M.R., his wife, and their two minor daughters.
Jubert’s conduct escalated over time. Initially, he posted insults about M.R., calling him “trash,” “garbage,” a “POS,” a “beta,” and a “certified doucher.” He negatively reacted to M.R.’s Facebook posts, M.R.’s wife’s posts, and comments about them over 200 times. Each interaction triggered a notification to the victims.
Soon after, the campaign became more threatening. Jubert posted M.R.’s work address and personal photos, as well as photos of M.R.’s children. In one post, Jubert wrote, “Might just need to talk to these 2 LOL,” under a photo of M.R.’s minor daughters. He commented on M.R.’s professional headshot, saying, “if u [ sic ] see this POS, eeeexcuttttte him on site he is la basura . . .” In another, he warned, “I can’t wait to F you up. It’s coming soon. Your life will cease too.”
By August 2, 2023, Jubert intensified his threats, posting that “none of this will stop until the casket drops.” Later that month, he capped his campaign with a chilling post: “Now I have a pic of the family, PERFECT . . . tonight I really was thinking of taking up serial killing as a hobby, hope I keep taking my Bipolar 1 meds . . .” Jubert’s campaign to instill fear escalated when he began cyberstalking the facility where M.R.’s daughters played volleyball. Between August 20 and August 23, 2023, he interacted with a Facebook page that posted the locations where M.R.’s daughters would be playing during that period.
Throughout the course of this harassment, Jubert took steps to ensure that M.R. and his family would see his posts. He “shared” family photographs, reacted to their posts, and even commented directly on M.R.’s wife’s Facebook page, calling her a derogatory slur. As a result of his activity, the family felt compelled to take substantial security measures: they installed cameras, purchased a security system, equipped their daughters with a panic button, and eventually contacted both local police and the FBI .
Jubert moved to dismiss the charges, arguing that his posts were protected speech under the First Amendment and that § 2261A(2)(B) was unconstitutional both facially and as applied. The district court rejected the facial challenge but deferred the decision on the as-applied challenge, concluding that it raised factual disputes that were better addressed at trial.
Jubert thereafter pleaded guilty to the cyberstalking charge, reserving his right to appeal the denial of his motion to dismiss. The district court sentenced him to 27 months’ imprisonment followed by three years of supervised release. Jubert filed a timely notice of appeal.
II We have jurisdiction under 18 U.S.C. § 3742 and 28 U.S.C. § 1291, which confer jurisdiction on the courts of appeals from final decisions of the district courts. Jubert entered a conditional guilty plea under a plea agreement and specifically reserved his right to appeal the denial of his motion to dismiss.
We review the district court’s denial of the motion to dismiss the
indictment
de novo
; we also review constitutional claims
de novo
.
United States
v. Ollison
,
Regarding § 2261A(2)(B), Congress enacted it in 2006 and expanded it in 2013. Under the statute:
1. The defendant must use “the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce” at least twice. 18 U.S.C. § 2261A(2); see also id. § 2266(2).
2. He must have acted “with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person.” § 2261A(2). 3. Finally, he must “engage in a course of conduct that . . . causes, attempts to cause or . . . would be reasonably expected to cause substantial emotional distress.” § 2261A(2)(B).
As amended, the statute brands a defendant a cyber-stalker if he checks all three boxes.
III
“A facial challenge is really just a claim that the law or policy at issue
is unconstitutional in all its applications.”
Bucklew v. Precythe
,
A We consider whether § 2261A(2)(B), as applied to Jubert, violates the First Amendment. Jubert argues that the statute crosses a constitutional line. In his view, it punishes speech, not conduct; ideas, not actions. He faults the district court for treating the statute as a regulation of conduct alone—a framing, he contends, that sidesteps strict scrutiny. Because the statute turns on what he said, not how he said it or to whom, Jubert maintains that it imposes a content-based restriction.
Jubert also denies that his posts fall within the “true threats” exception to the First Amendment. He identifies three features that he claims our precedent requires: a specific target, a defined method, and direct communication. His posts, he argues, met none. They were conditional, vague, and impersonal. He named no time, no place, and no plan. He voiced no intent to act. On that view, he believes that the indictment must fall. He is wrong.
The government may not restrict speech simply “because of its
message, its ideas, its subject matter, or its content.”
See Ashcroft v. ACLU
,
535 U.S. 564, 573 (2002) (internal quotations omitted). But the First
Amendment does not protect all expression. Its guarantees yield to “the few
historic and traditional categories of expression long familiar to the bar.”
United States v. Alvarez
,
“True threats are serious expressions conveying that a speaker means
to commit an act of unlawful violence.”
Counterman v. Colorado
, 600 U.S.
66, 74 (2023) (cleaned up);
see also Virginia v. Black
,
“Speech is a true threat and therefore unprotected if an objectively
reasonable person would interpret the speech as a serious expression of an
intent to cause a present or future harm.”
Porter v. Ascension Par. Sch. Bd.
,
393 F.3d 608, 616 (5th Cir. 2004) (cleaned up). “The speaker need not
actually
intend to carry out the threat.”
Black
, 538 U.S. at
359–60. “Importantly, whether a speaker intended to communicate a
potential threat is a threshold issue, and a finding of no intent to communicate
obviates the need to assess whether the speech constitutes a true threat.”
Porter
,
True threats are unprotected because they have relatively low value and restricting them “protects individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.” R.A.V. v. City of St. Paul , 505 U.S. 377, 388 (1992) (cleaned up). “None of those factors turns on whether a speaker names individuals or merely places them where those individuals are likely to be.” United States v. Perez , 43 F.4th 437, 444 (5th Cir. 2022) (holding that Facebook posts in which the speaker falsely claimed that he had paid a person infected with the COVID-19 virus to lick everything in two specific grocery stores in San Antonio were true threats). Whether the threat describes future events is not dispositive to this court’s inquiry. Id. at 443 (citing United States v. Reynolds , 381 F.3d 404, 406 (5th Cir. 2004) (concluding in a different context that threats may refer to past conduct)).
In this case, Jubert’s as-applied challenge fails. We assume without deciding that § 2261A(2)(B), as enforced here, targets Jubert’s speech. Even so, his speech contained true threats.
True threats are “serious expressions” of an intent to commit
unlawful violence.
Counterman
,
The record shows escalation. He began with insults—calling M.R. “garbage.” Then came the threats. Jubert called for M.R.’s “execution,” warned, “I cant wait to FFFFFF u up, its coming soon, ur life will cease to……” He continued: “None of this will stop until the casket drops.” He tracked the daily movements of M.R.’s minor daughters. He closed with a post invoking serial killing. This was not spontaneous venting. It was targeted, sustained, and deliberate. The record shows more than awareness—it shows intent. Jubert ensured that his victims saw the posts. He shared their photos, followed their pages, commented on M.R.’s wife’s account. The government did not infer fear. Jubert manufactured it.
The victims’ responses confirm this point. M.R. installed cameras. He bought a security system. His children received a panic button. The family changed their routines. M.R. went to local police, then to the FBI . Fear, standing alone, may not be dispositive. But here, it was the predictable result of deliberate conduct. Jubert’s suggestion that the family failed to block him misses the mark. He used at least six separate Facebook accounts to bypass those efforts. That is not exculpatory; it is aggravating.
Nor do his cited cases offer his argument refuge. In
Bailey v. Iles
, the
defendant’s social media post referenced “the infected” and included a
hashtag invoking a movie character.
Taken together, the evidence points in one direction. Jubert’s statements were true threats. He knew what he said. His targets understood what he meant. The First Amendment does not protect that. Because Jubert’s posts were true threats, we hold that § 2261A(2)(B), as applied here, is constitutional, and it does not violate Jubert’s right to freedom of speech.
B
Considering that Jubert’s as-applied challenge fails, we turn to his
facial claim.
See Buchanan
,
Jubert concedes that Yung rejected an overbreadth challenge, but notes that the court invoked a limiting construction to avoid invalidation. He criticizes that approach as inconsistent with overbreadth doctrine, which seeks to invalidate statutes that chill protected expression before narrowing constructions become necessary. See Dombrowski v. Pfister , 380 U.S. 479, 486–87 (1965).
Jubert also disputes that the statute’s intent requirement cures the alleged overbreadth. Intent to “harass” or “intimidate,” he argues, does not sufficiently cabin the statute’s reach. The terms are undefined. Their scope is uncertain. And their application, he claims, risks criminalizing speech merely because it annoys, disturbs, or offends. Again, we disagree with Jubert’s theory and conclude that the statute is not overbroad.
“The overbreadth doctrine prohibits the Government from banning
unprotected speech if a substantial amount of protected speech is prohibited
or chilled in the process.”
Ashcroft v. Free Speech Coal.
, 535 U.S. 234, 255
(2002). This doctrine “is strong medicine” that should be employed “only
as a last resort.”
L.A. Police Dep’t v. United Reporting Pub. Corp.
,
This doctrine, however, is an oddity within constitutional jurisprudence. Litigants rarely have Article III standing to challenge laws merely because they “may conceivably be applied unconstitutionally to others.” Broadrick v. Oklahoma , 413 U.S. 601, 610 (1973). As Professor Richard Fallon explains, “[o]utside the First Amendment context,” that kind of facial challenge is understood as a matter of third-party standing or jus tertii . Richard H. Fallon, Jr., Making Sense of Overbreadth , 100 Yale L.J. 853, 859 (1991) (cleaned up). The general rule holds that unless the challenger stands in a relationship that makes the rights of others dependent on their own, one party cannot invoke hypothetical applications to avoid a lawful one.
Courts have relaxed this standing requirement in overbreadth cases
concerning the First Amendment because “statutes attempting to restrict or
burden the exercise of First Amendment rights must be narrowly drawn and
represent a considered legislative judgment that a particular mode of
expression has to give way to other compelling needs of society.”
Broadrick
,
In determining whether a statute sweeps too broadly, “we must first
determine what it covers.”
United States v. Hansen
,
Turning to the statute at issue, every federal court of appeals that has
addressed a
facial attack
to § 2261A(2)(B) has upheld
its
constitutionality.
See Yung
,
Because we have not directly addressed this issue, it is one of first
impression in this court.
See United States v. Conlan
,
Section 2261A(2)(B) is not facially overbroad. It prohibits repeated
harassment. It targets conduct, not commentary. It punishes actions, not
viewpoints. And it does so within well-established constitutional bounds. In
deciding this issue, we start with what § 2261A(2)(B) covers.
See Hansen
, 599
U.S. at 770. In doing so, we begin with the text.
See Oklahoma v. Castro-
Huerta
,
Section 2261A(2)(B)’s text tells us that it only applies to “a course of
conduct.” Specifically, the defendant must use “the mail, any interactive
computer service or electronic communication service or []system of
interstate commerce, or any other facility of interstate or foreign commerce”
at least twice. 18 U.S.C. § 2261A(2);
see also id.
§ 2266(2) (defining “course
of conduct” as a “pattern of conduct composed of 2 or more acts, evidencing
a continuity of purpose”). That narrows its reach. It excludes isolated
statements and accidental communication. And it focuses the statute on
persistent behavior aimed at “another person.”
Id.
§ 2261A(2). In
Ackell
, the
First Circuit illustrated the statute’s reach with examples far removed from
protected speech: “[A] defendant could send envelopes of unknown white
powder to the victim in the mail; he could send the victim nude photographs
of herself; . . . he could open unwanted on-line dating profiles under the
victim’s identity.”
Moreover, a statute is not facially invalid unless it prohibits a
substantial amount of protected speech judged in relation to the statute’s
plainly legitimate sweep.
See United States v. Williams
, 553 U.S. 285, 292
(2008) (“[W]e have vigorously enforced the requirement that a statute’s
overbreadth be
substantial
, not only in an absolute sense, but also relative to
the statute’s plainly legitimate sweep.”). This one does not. So we see no
reason to depart from the reasoning of our sister circuits.
See Alfaro
, 349 F.3d
at 229;
Graves
,
Moving on to the result element, substantial emotional distress , it too does not render the statute overbroad. The common law has defined this phrase for centuries. It is not standardless. “Emotional distress passes under various names,” the Restatement explains, “such as mental suffering, mental anguish, [and] mental or nervous shock.” Restatement (Second) of Torts § 46 cmt. j (1965). But even in tort law, “there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge.” This standard applies equally in the criminal context. See Uhlenbrock , 67 F.4th at 224. The statute’s use of this term ensures that only serious, foreseeable harm qualifies. It excludes imagined fear, idiosyncratic sensitivities, and emotional overreaction. That constraint makes the statute narrower, not broader.
Jubert responds that even deeply offensive speech may be protected.
And he is right—but only to a point. As the Supreme Court has held, the First
Amendment shields “even hurtful speech on public issues to ensure that we
do not stifle public debate.”
Snyder v. Phelps
, 562 U.S. 443, 461 (2011). It
protects parody, even vulgar parody, of public figures.
See Hustler Mag., Inc.
v. Falwell
,
Context matters. Section 2261A(2)(B) applies to crusades of private
harassment or intimidation. Of course, the First Amendment protects
insults; it does not protect intimidation. “Intimidation in the constitutionally
proscribable sense of the word is a type of true threat, where a speaker directs
a threat to a person or group of persons with the intent of placing the victim
in fear of bodily harm or death.”
Black
,
The statute’s mens rea element equally limits the statute’s scope. The
defendant must act “with the intent to . . .
harass[] [or] intimidate
.” 18
U.S.C. § 2261A(2)(B) (emphasis added). That requirement does real work.
“ In the vast majority of its applications, [the] statute raises no constitutional
problems whatever .”
Williams
,
While the cyberstalking statute here does not define “harass” and
“intimidate,” that does not mean those terms are without meaning. The
Third Circuit has held that “intimidate” means “a defendant must put the
victim in fear of death or bodily injury.”
Yung
,
IV
For the reasons stated herein, we AFFIRM .