• Creepy Tweeters Have Speech Rights Too
  • January 11, 2012 | Author: Rachel Wilkes Barchie
  • Law Firm: Greenberg Glusker Fields Claman & Machtinger LLP - Los Angeles Office
  • If our dear readers look at my past blog posts, you might think I’m vying for a Bloggie Award* for “Most Posts Related to Social Media.”  As someone who personally spends a fair amount of time keeping up with my friends/news outlets/favorite restaurants through social media, many of the legal disputes that catch my eye examine the intersection of free speech and social media — after all, it’s good to know where the line between lawful and actionable is drawn, even though I don’t think I’m likely to step over it.  (Plus, I think I’m now allowed to bill my workplace Facebook/Twitter time as “researching blog post.”)

    Usually, when something goes legally haywire with social media, it’s because Courtney Love defamed someone on Twitter again.  Last month, though, a Maryland federal court has shined a (27-page) light on the criminal law of cyberstalking.  Under a semi-obscure provision of the Violence Against Women Act — codified at 18 U.S.C. § 2261A for you legal eagles out there — federal law makes it a crime when an individual “uses the mail, any interactive computer service, or any facility of interstate or foreign commerce to engage in a course of conduct that causes substantial emotional distress” to someone “with the intent to kill, injure, harass, or place under surveillance with intent to kill, injure, harass, or intimidate, or cause substantial emotional distress to a person in another State.”

    This law may have come as some surprise to defendant William Lawrence Cassidy, who was charged with cyberstalking based on his more than 8,000 posts on blogs and Twitter about Alyce Zeoli, a Buddhist leader (and quite the avid Tweeter herself).  The court’s recitation of facts describes Alyce Zeoli, or “A.Z.” as a “reincarnate llama,” but I’m pretty sure the court really meant lama (as in Tibetan teacher of the Dharma) rather than llama (as in South American camelid).  In any event (actually, probably especially if she is, indeed, an alpaca), Ms. Zeoli — the so-called “Buddha from Brooklyn” — is already quite the controversial figure.

    Cassidy’s posts and Tweets ranged from threatening comments (“ya like haiku?  Here’s one for ya: ‘Long, Limb, Sharp Saw, Hard Drop’ ROFLMAO”**) to criticism of Zeoli as a religious figure (“[A.Z.] is a demonic force who tries to destroy Buddhism”) to just vague creepiness (“owl and raven feathers separate....tick tock tick tock tick tock tick tock tick tock”).  Cassidy moved to dismiss the charges against him, and on December 15, the court granted his motion, holding that Cassidy’s speech was protected by the First Amendment and that the restriction didn’t pass scrutiny and dismissed the charges against him.

    So what lessons can you take from Cassidy’s case the next time you’re ready to dive into the Twitterverse?

    Is Twitter Akin to a Direct Message?

    Before tackling the substantive contents of the posts, the court first analyzed how Twitter and blogs might have been viewed (other than with fear, confusion, and fascination with all those pretty flashing lights on the computer) by the drafters of the Constitution.  The court concluded that blogs are comparable to a bulletin board erected by a Colonist in his front yard (obviously):  “A blog is like a bulletin board, except that it is erected in cyberspace rather than in one’s front yard.  If one Colonist wants to see what is on another’s bulletin board, he would need to walk over to his neighbor’s yard and look at what is posted, or hire someone else to do so.  Now, one can inspect a neighbor’s Blog by simply turning on a computer.”  (I’ll leave to your imagination what our founding fathers would have blogged about.)  With respect to Twitter, according to the court, “Twitter allows the bulletin board system to function so that what is posted on Colonist No. 1’s bulletin board is automatically posted on Colonist No. 2’s bulletin board for Colonist No. 2 to see . . . .  It is entirely up to the two Colonists whether their bulletin boards will be interconnected in such a manner.”  Based on this description, the court concluded that “one Blog or Twitter user [does not] have to see what is posted on another person’s Blog or Twitter account,” which is “in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed to another person.”

    In other words, the court found that unlike a letter, phone call, or email, a Twitter post is not a “direct message — a distinction the court held was “fundamental to the First

    Amendment analysis” because the government’s legitimate interest in limiting harassing conduct (and its constitutional leeway to do so) is lessened in the context of public speech in which the “harassed” party is not forced to actually receive and read the offending messages.

    While I’m fairly impressed with the court’s willingness to learn so much about Twitter in the first place (let alone to explain the whole thing in language the constitutional framers might have understood), this blogger respectfully submits that the court’s conclusion about Twitter missed the mark, perhaps because the court didn’t know quite enough about Twitter.

    As my fellow Twitter users know, if I post a Tweet “@lawlawlandblog,” my post will show up on Law Law Land’s feed (without Law Law Land affirmatively seeking it out), and the whole world can see that the comment was directed to Law Law Land.  While it’s true that Law Law Land could block my posts if it deemed them offensive, there would be nothing to stop me from creating 100 new Twitter accounts and bombarding Law Law Land with Tweets from those accounts, which Law Law Land would wind up seeing directly on its feed.  (Indeed, that seems to be basically what Cassidy did to Zeoli.)

    If the offensive messages wind up coming directly to their intended recipient, it seems to erase the distinction the court created between Twitter and “direct” messages, and therefore shift the First Amendment analysis in the government’s favor.  The court would then have to argue that unlike the phone, letter or email, it’s unnecessary to use Twitter at all.  But in our social media age, where so many use Twitter as their regular platform, that distinction can’t realistically stand up.  (I mean, it’s hard enough to do important things like promote your new book or check out your friend’s baby photos when your office blocks Facebook or Twitter, right?)

    (That being said, let’s all now take a moment of silence to mourn the fact that we live in a world in which important constitutional decisions may turn on a judge’s understanding [or lack thereof] of @ signals and hashtags.  #godhelpusall.)

    Was Cassidy’s Speech Protected?

    Having concluded that they are more akin to public statements than private harassing messages, the court — perhaps a bit euphemistically — characterized Cassidy’s posts as “anonymous, uncomfortable Internet speech addressing religious matters.”  The court explained that this category of speech remains protected unless it falls into one of the following limited categories:  (a) obscenity, (b) defamation, (c) fraud, (d) incitement, (e) true threats to another’s physical safety, and (f) speech integral to criminal conduct.  The court found that Cassidy’s speech did not fall within any exception and so remained protected by the First Amendment.

    I know what you’re thinking (just kidding, or am I?) — aren’t the posts, which the court itself actually categorizes as threats, “true threats?”  In a footnote, the court addressed that argument, noting the government’s indictment did not allege that Cassidy used the Internet to put Zeoli in reasonable fear of death or serious bodily harm.  Were that the argument, the indictment may have fared better.  Still, requiring that heightened showing would gut the congressional intent behind the statute, which was amended in 2006 to protect against harassment and emotional distress that can be created even without a criminal threat.  In other words, while the law might be characterized as a “anti-cyberstalking law,” by this court’s interpretation, there’s little the law can actually do about cyberstalking, as it’s generally understood.  This seems generally consistent with the usual level of clarity and efficacy in modern legislation around the Internet.

    So because Cassidy’s speech would otherwise be protected, any “content-based” restriction would need to pass the most stringent constitutional test, known as “strict scrutiny” — and yes, in this case, creepy “haikus” and unnerving clock sounds count as “content.”  A restriction is content-based if it limits speech based on the effect the speech has on its audience.  The court found that the portion of the cyberstalking statute referenced in Cassidy’s indictment was content-based because it would limit speech based on whether it caused emotional distress to Zeoli, and therefore the restriction must pass strict scrutiny — in other words, the government must show that the restriction is “necessary to serve a compelling state interest.”  The court found the government’s “interest in criminalizing speech that inflicts emotional distress” was not compelling.

    First, the court once again compared Twitter to a bulletin board, and referenced prior court rulings upholding a federal telephone harassment statute, but striking down a statute that made it a criminal offense to assemble and be “annoying” to a passerby.  The court further found that even if the governmental interest were sufficient, the government did not meet its burden of showing that the restriction the statute places upon speech is no greater than is “essential to furtherance of that interest,” particularly in light of the fact that Zeoli is a public figure that leads a religious sect, and many of Cassidy’s posts (you know, those that weren’t vaguely menacing her in more generic fashion) targeted Zeoli’s qualities as a leader.  This kind of speech has consistently been protected, but is not carved out of the statute.  Therefore, as applied to Cassidy’s speech about Zeoli, court concluded that the statute was unconstitutional.

    Of course, don’t expect this to be the end of the discussion about this law.  Because the court found that the anti-cyberstalking statute was unconstitutional as applied to Cassidy’s case, it hasn’t been struck down on its face, and is therefore still on the books.  Sooner or later (probably sooner), someone (probably Courtney Love) is going to get all up in a non-public figure’s Internet grill on Twitter, and a new court will have to decide whether private individuals enjoy great protection from harassing and distressing e-speech under the statute than their public figure counterparts.

    Until then, creepy Tweeters of the world — and their targets — stay tuned.

    * Our fabulous editorial staff recently presented us (and each other) with “Bloggie Awards”—in the style of The Office’s “Dundies” — in honor of our tireless dedication to delivering our awesomely bad humor month after month.

    ** The court dropped a specific footnote to enlighten us that “ROFLMAO is Internet slang for Rolling on Floor Laughing My A** Off.”  Aren’t you glad you have federal judges around to tell you these things?  Somehow, though, the court managed to resist the urge to point out that Cassidy’s so-called haiku doesn’t follow the requite 5/7/5 syllable scheme.  Tragic.