When does tweeting about a person qualify as cyberstalking? A federal judge in Maryland ruled yesterday that the First Amendment applied to tweets and called into question the scope of the federal cyberstalking law.
The federal law against cyberstalking originally dealt just with serious threats of violence. But the law was expanded in 2006 to criminalize using the internet to “harass and cause substantial emotional distress to a person in another state.”
William Cassidy was charged with cyberstalking Alyce Zeoli, a Buddhist religious leader, based on his tweets, such as “Do the world a favor and go kill yourself. P.S. Have a nice day.” Zeoli asserted that the tweets made her so fear for her safety that she had not left her house for a year and a half, except to see her psychiatrist.
In assessing our rights in the digital age, Judge Roger Titus analogized to the colonial era in order to determine whether the U.S. Constitution applies to tweets and blogs:
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… 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. The automatic postings from one Colonist to another can be turned on or off by the owners of the bulletin boards.
Judge Titus saw no relevant difference between today’s digital communications and the Colonists’ quill pen missives: “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.”
The judge ruled in favor of Cassidy, finding that the statute was unconstitutionally applied to him. Cassidy’s tweets were, in the judge’s view, protected speech criticizing the conduct of a public figure.
The judge was influenced by the distinction between a direct contact with a purported victim (such as through a harassing phone call) and a Twitter post. In terms of the Colonists’ analogy, a person can turn off the receipt of Twitter posts (similar to not visiting a neighbor’s bulletin board), but a person cannot stop direct communications.
But the battle over the reach of cyberharassment laws will not end here. In Minnesota, a court is determining whether encouraging someone to commit suicide over the web is protected by the First Amendment. And other cases are assessing whether people who are defamed on a website can force the website to remove the defamatory material.
Because of the nature of digital communications, though, Judge Titus’s distinction between public tweets and direct communications with the victim may not hold up in future cases. Much of the cyberharassment of women does not involve a direct threat from one person to another. Instead, rivals, ex-boyfriends and jealous colleagues have posted a woman’s name and a Google map to her house on Craigslist and other websites claiming the woman has a rape fantasy and suggesting that men should rape her. Should this be protected speech on the grounds that the threat is not directly broadcast to her?
Let me know what you think the law should do. When do tweets go from legal to lethal?
Lori is a law professor and the author of I KNOW WHO YOU ARE AND I SAW WHAT YOU DID: SOCIAL NETWORKS AND THE DEATH OF PRIVACY.
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