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Threats, Tweets and the First Amendment

The Case of the Alleged Twitter Stalker

by JULIE HILDEN

On December 15, U.S. District Judge Roger W. Titus, of the U.S. District Court for the District of Maryland, dismissed an indictment against William Lawrence Cassidy.  The indictment had been issued pursuant to a federal stalking statute that is an amended version of part of the Violence Against Women Act (VAWA).

In this column, I’ll comment on Judge Titus’s opinion.

The Basis for the Indictment Against Cassidy

The indictment against Cassidy was based upon a long series of tweets and blog entries that he allegedly posted, regarding Buddhist religious leader Alyce Zeoli.  (Judge Titus’s opinion, on pages 2–4, explains exactly how Twitter and blogs work.  For purposes of this column, I’ll assume readers know this information; those who don’t may want to consult the judge’s opinion, via the link above.)

The criminal statute at issue—which applies where, as here, the victim and the alleged harasser live in different states—requires (1) that the tweets and blog postings described in the indictment must have caused Zeoli “substantial emotional distress”; and (2) that Cassidy must have possessed the intent to “harass and cause substantial emotional distress” when he made the postings.

It seems likely, given the nature of the tweets and blog postings at issue—which are collected in Appendix A of the court’s opinion—that Zeoli did indeed, as she says she did, suffer substantial emotional distress as a result of these postings, some of which seem quite threatening.

It also seems likely, based on the postings’ hostile content, that Cassidy—assuming that he was indeed the one responsible for the postings—wanted to harass Zeoli and to cause her substantial emotional distress, as the statute also requires.

Having read the postings, I think it’s likely that a jury would find for the prosecution on each of these questions, and thus find that these requirements of the federal statute at issue were fulfilled.

Accordingly, the only real question here was, arguably, whether the First
Amendment should bar this prosecution from going forward.  The judge’s answer was yes.

The Context and the Facts

To see why the facts here seem to fit the statute’s requirements, some context is necessary.

Long before the tweets were sent or the blog entries posted, Cassidy and Zeoli spent time together in person.  During that time, according to an FBI agent’s affidavit, Cassidy (then known as William Sanderson) allegedly lied to Zeoli by falsely claiming to hold a certain status within Buddhism, that of “tulku.” Cassidy also, according the FBI agent’s affidavit, offered out of the blue to kill Zeoli’s ex-husband; she declined.

The two parted ways in 2008, but Zeoli later learned of a number of Twitter postings on various different accounts that she believed targeted her, often under the initials “A.Z.”  With a series of subpoenas, Zeoli traced the postings to Cassidy.  She then did the same with a blog she had suspected was Cassidy’s, and in fact, proved to be his.

Zeoli says that as a result of the tweets and blog entries that Cassidy allegedly directed at her, she fears for her safety and that of fellow members of her Buddhist group, KPC.  Indeed, she alleges that she has not left her house for a year-and-a-half now, except to see her psychiatrist.

Notably, too, Judge Titus characterized one set of postings that Cassidy made as “Threats.”  Listed on page 22 and 23 of the court’s opinion, these 18 postings are indeed threatening towards Zeoli and/or KPC, and could easily have inspired fear in Zeoli.  However, each of these statements is vague and/or unclear—which is what made this case a difficult one from a First Amendment standpoint.

The First Amendment Issue, and How the Court Resolved It

In his opinion, Judge Titus noted that Supreme Court precedent makes clear that the First Amendment provides protection for anonymous speech.  Moreover, he concluded that the speech at issue in the Cassidy/Zeoli case did not fit within already-recognized First Amendment exceptions, such as the exception for what are called “true threats.”

On that point, however, I think reasonable minds can differ.  Some might see as the postings as, indeed, true threats, when they insinuate that violence against Zeoli may somehow occur, someday soon.  I’ll be interested to see how the appeals court comes down on the “true threats” issue, if the government appeals this ruling, as I think it likely will.

Having rejected the contention that the postings were “true threats,” Judge Titus went on to note that the government had targeted the postings based on their content.  It’s acceptable, of course, to punish a true threat for its content; its content is the very thing that makes it dangerous.  However, in most other contexts, content-based restrictions on speech are highly disfavored, and that was the case here.

Thus, Judge Titus noted that the high bar for content-based restrictions on speech had to be cleared if the federal statute at issue were to survive judicial review.  Only a compelling state interest could sustain the statute’s application to Cassidy, the judge reasoned—especially since, as he pointed out, Cassidy was not sending the tweets and blog posts to Zeoli, nor was he compelling her to read them.  Instead, it seems she discovered them on her own.

Judge Titus saw a sharp distinction between tweets and blog posts, on one hand, and harassing telephone calls or emails, on the other.  In particular, he analogized tweets and blog posts to old-time bulletin boards, which he pointed out could even have been used by early American colonists.  The common element is this:  You look at a bulletin board, or follow a Twitter user, or read a blog only if you want to.  If you don’t like what you see, you can stop reading.  To use a tort law analogy, you don’t have to “come to the nuisance.”

Judge Titus also suggests in his opinion—as did the Electronic Frontier Foundation (EFF), which filed an amicus brief in the case—that Zeoli’s status as a religious leader and teacher who frequently writes and teaches, means that she ought to be accorded less protection from unwelcome speech than an ordinary person.  (By comparison, a public figure—even a limited-purpose public figure—receives less protection from defamation litigation than a private person would.)

In the end, Judge Titus held that the statute at issue was invalid as applied to Zeoli, without reaching the question whether it is also facially invalid—that is, whether it is invalid generally, because the lion’s share of its applications are unconstitutional.

That question, for now, has been left to another day.

Judge Titus’s Opinion Should Have Taken Search Engines More Fully Into Account

Finally, although Judge Titus’s bulletin board analogy was interesting and insightful, I believe it was not quite fair to alleged harassment victims such as Zeoli.  That’s because it didn’t take into account search engines, and the common practice of periodically searching on one’s own name, or that of one’s organization (for Zeoli, that was KPC).

One can argue, as Judge Titus did, that a given blog or Twitter account is like a lone bulletin board, which you can choose whether to visit.  But if you have a practice, as many people do, of searching on your name every so often, then you may inevitably encounter negative postings that you’d rather not have read, and that may even be harassing toward you.

If so, then—given how universal the use of search engines is now—you might argue that you didn’t “come to the nuisance,” as you might when visiting a blog the nature of which you knew and were prepared for.  Instead, via ordinary search engine use, the nuisance, in a sense, came to you.

In sum, Internet technology, which has already affected so many legal questions, may also affect our definitions of what counts as online harassment, and what counts as First Amendment-protected speech online.  Judge Titus’s decision is thus likely to be just one in a string of decisions that strive to resolve this tricky issue.

JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.

This column originally appeared in Justia‘s Verdict.