Recent 11th Circuit Case Discusses the Line Between Offensive Speech and Criminal Wrongdoing

January 25, 2022 Criminal Defense

Recent 11th Circuit Case Discusses the Line Between Offensive Speech and Criminal Wrongdoing

General Overview

On December 16, 2021, the United States Court of Appeals for the 11th Circuit decided case United States v. Fleury. This case was an appeal from the United States District Court for the Southern District of Florida. There, Brandon Fleury was convicted by a jury on three counts of cyberstalking and one count of transmitting interstate threats. He was sentenced to 60 months in prison for counts one through three and six months in prison for count four. In his appeal, Fleury challenges the constitutionality of 18 U.S.C. § 2261A(2)(B), the sufficiency of the evidence and indictment, the instructions given to the jury, and the use of expert testimony. This case is intertwined with the horrific events of the February 14, 2018, shooting at Marjory Stoneman Douglas High School in Parkland, Florida.


How is Fleury involved in this horrible event, and why has his legal action come three years after the events occurring on February 14th? Fleury’s lower court conviction comes from messages sent and posts made on Instagram. Online, Fleury was posing as various serial killers and mass murderers, like Nikolas Cruz, the Parkland shooter, and Ted Bundy, infamous serial killer. He harassed three people, Jesse Guttenberg, Alexis Sealy, and Max Schachter – individuals who all lost loved ones in the Parkland shooting.

Specifically, between December 22, 2018, and January 11, 2019, Fleury created accounts called “nikolas.killed.your.sis-ter,” “the.douglas.shooter,” and “Teddykillspeople” in order to harass families of those who were murdered by Cruz. Schachter’s fourteen-year-old son, Alex, was killed during the Parkland shooting and in response, Schachter started a scholarship fund to honor his late son and also advocated for school safety. In December of 2018, he began receiving threatening messages on his Instagram such as “I killed Alex and it was fun” and “they had their whole lives ahead of them and I f**king stole it from them.” Schachter even received imminent threats, such as “I’m your abductor I’m kidnapping you fool.” Guttenberg’s younger sister Jamie was also killed in the Parkland shooting. On December 22, 2018, Guttenberg was a senior in high school and woke up to many messages on his Instagram account, like “I’m a murderer,” and “[t]hey had their whole lives ahead of them and I f**king stole it from them.” Similar to Schachter, Guttenberg received a threat, stating “I’m your abductor I’m kidnapping you fool,” and “with the power of my AR-15 you all die.” Guttenberg’s parents contacted law enforcement who then surveyed his house during winter break of that year. In mid-December, Sealy likewise began receiving harassment on Instagram. Sealy’s best friend had died during the shooting, and she received messages stating “with the power of my AR-15 I erased their existence. Your grief is my joy,” and the same messages as the others: “I’m your abductor and I’m kidnapping you fool.”

Fleury then admitted to his mistakes stating that he “took it way too far with [his] trolling” in a private message to another Parkland shooting survivor, Cameron Kasky.

Law enforcement eventually obtained Fleury’s IP address from the Instagram accounts. Fleury admitted to sending the messages in a post-Miranda statement and said that he did it because he was attracted to “aggressive people with violent tendencies.”

Fleury’s Constitutional Challenge

Fleury argued that the convictions violated his First Amendment right to free speech. Specifically, during trial he moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, stating that the messages were not “true threats” and were therefore protected by the First Amendment. The government contended that they had proven that Fleury sent the obviously threatening messages, used the names of known killers, and wrote the threatening messages in the present tense, indicating an imminent or ongoing threat to those receiving the messages. The district court denied Fleury’s motion.

During his appeal he again challenged the constitutionality of 18 U.S.C. § 2261A(2)(B), arguing that the statute is unconstitutionally overbroad and encompasses First Amendment protected speech. He also argued that the statute is unconstitutional as applied to himself because it is a “content-based restriction, limiting speech on the basis of whether that speech is emotionally distressing.” Fleury further stated that the speech “was also on a matter of public concern and thus was entitled to special protection.”

The government contended that the statute contained “critical statutory elements including criminal intent” and is not unconstitutional as applied to Fleury because “true threats – like the messages Fleury sent to the victims – are entitled to no First Amendment protections and the messages did not address a matter of public concern.”

How Did the Court Rule?

The 11th Circuit upheld Fleury’s convictions and sentence because his messages were not protected under the First Amendment of the United States Constitution. Despite Fleury’s contentions, he was not discussing matters of “public concern” and was instead “focused only on exacerbating the victims’ grief.” Furthermore, the messages sent by Fleury “indicated a serious expression of an intent to commit an unlawful act of violence toward each victim.”

Tallahassee Criminal Defense Attorney

If you or a loved one has been charged with a Florida crime, contact a qualified Tallahassee criminal defense attorney today. Don Pumphrey and the members of the legal team of Pumphrey Law Firm have decades of experience defending Floridians against state criminal charges and will ensure that you or your loved one are afforded a complete and rigorous defense. Contact Pumphrey Law Firm today at (850) 681-7777 or send an online message to discuss your case during an open and free consultation with an attorney in our legal team.

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