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Dec 16 2011

Dismissal of Twitter Stalking Case Has Broad Implications for the Internet

In a decision that will resonate throughout cyberspace, Maryland Federal Judge Roger W. Titus has dismissed an indictment against a California man who was arrested for stalking a Maryland woman through blog posts and Twitter feeds. The case US v. William Lawrence Cassidy is also an example of how Federal Courts can use the intent of the Founding Fathers to meet the issues raised by today’s technological society.

Quick facts of the case: Defendant was a member of a Buddhist sect and quickly rose to briefly become its Chief Operating Officer. When the female spiritual head of the Buddhist Center (named in the opinion only as AZ) confronted the defendant about his Buddhist credentials, defendant left the center. Earlier, AZ had also turned down a marriage proposal from defendant. Upon leaving the center, the defendant began to tweet various items about AZ – calling her derogatory names, claiming she was a phony, even thinly threatening her through oddly worded posts. Cassidy also railed against the Center and AZ on a blog he started. He produced over 350 Anti-AZ tweets onto his Twitter account and several hundred anti AZ posts on his blog as well. After subpoenas to Google and Twitter revealed who the poster was, Cassidy was arrested by the FBI and charged under Section 2261A of Title 18, the Federal Penal Code. This section is an interstate stalking statute originally passed in 1996 as part of the “Violence against Women’s Act.” In 2006, to try and play catch up to the rapidly expanding use of the internet, the Act was amended and made much broader. Originally, the Act required that the stalking conduct had the intent to “kill, injure or place the victim in reasonable fear of serious bodily injury or death.” The amendment added that stalking could include an intent merely to “harass” a victim resulting in causing only “substantial emotional distress.” To further expand the statute’s reach, the stalking could occur through “any interactive computer service.” Previously the accused had to use the mail or a phone. So the intent required under the statute; the action required under the statute; and the mechanisms covered by the statute were greatly broadened by the 2006 amendment.

These amendments led to Cassidy’s arrest for his blog and Twitter posts. Bail was set which he could not make and he remained incarcerated while the criminal matter was pending. The judge had great difficulty with the law’s sweeping amendments and its application to the defendant. He noted that it is a very different thing to repeatedly call, mail or email a person because that person directly receives the communication without asking for it. Twitter and blogs he noted are much like the early bulletin board during the Colonial Era when the First Amendment was drafted:

Suppose that a Colonist erects a bulletin board in the front yard of his home to post announcements that might be of interest to others and other Colonists do the same. 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….Whether couched in terms of the Internet or Colonial bulletin boards, there is one consistent aspect of both eras. One does not have to walk over and look at another person’s bulletin board; nor does one Blog or Twitter user have to see what is posted on another person’s Blog or Twitter account. This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and
directed at another person, and that difference, as will be seen, is fundamental to the First Amendment analysis in this case.

Noting that the Founding Fathers relied on anonymous speech through leaflets, brochures and pamphlets, Judge Titus found that anonymous speech through Twitter and blogs is entitled to the highest protection afforded by the First Amendment. He basically stated that Thomas Paine, Alexander Hamilton and Thomas Jefferson were bloggers who used parchment paper instead of a computer screen. He quoted from various Supreme Court decisions that highlighted the value placed on such speech and how this value trumped the discomfort and even anger felt by those the speech targeted or discussed:

This is because anonymous speech allows individuals to express themselves freely without “fear of economic or official retaliation … [or] concern about social
ostracism.. . .[T]he Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern. This is because “in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate ‘breathing space’ to the freedoms protected by the
First Amendment.’

Judge Titus completed his First Amendment analysis by of course noting that not all speech is worthy of protection – actual threats of harm, obscenity, defamation, incitement to violence, and fraudulent content has never been given First Amendment protection, but none of those categories applied to the defendant’s posts (which mostly branded the Center as a sham or cult and which painted AZ in a bad light and wished her ill without actually threatening physical violence against her).

The court then stated what should be obvious but often isn’t to those demanding “strict construction” of the Constitution – that while the First Amendment was originally intended to protect billboards, pamphlets and leaflets it is part of a living breathing document applicable to today’s lives:

Even though the Internet is the newest medium for anonymous, uncomfortable expression touching on political or religious matters, online speech is equally protected under the First Amendment as there is “no basis for qualifying the level of First Amendment scrutiny that should be applied” to online speech…. Indeed whatever the challenges of applying the Constitution to ever-advancing technology, basic principles of freedom of speech and press, like the First Amendment’s command, do not vary when a new and different medium for communication appears.(citations omitted)

Finding that the defendant’s posts were on a public platform and were not any of the categories of unprotected speech, the court dismissed all charges against the defendant. Cassidy remains in custody until December 22 to allow time for the government to file an appeal and ask the appellate court to maintain Cassidy in detention. He will be likely be released on December 22 – after having spent approximately 10 months in Federal custody.

The Cassidy decision has far-reaching implications. Most importantly, it is the first decision that I am aware of that clearly limits the reach of the Federal stalking statute to communications sent directly to the alleged victim. Secondly, it protects anonymous speech about politics, religion and society and will likely prevent the forced disclosure of the anonymous poster’s identity. And finally, it makes clear that the internet’s public platforms deserve the same protection as the public square and more traditional speech platforms.

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