Zen and the Constitutionality of Twitter 'Cyberstalking'

By Justin Silverman William Lawrence Cassidy joined Kunzang Palyul Choling (KPC), a Maryland-based Buddhist organization, in 1997, claiming to be a reincarnated Buddhist and to be suffering from lung cancer. According to The New York Times, he accepted medical assistance from the group, briefly worked in its executive ranks, and developed a close relationship with the group's leader, Alyce Zeoli. His relationship with Zeoli and other members, however, soon unraveled. Colleagues found out that Cassidy didn't have cancer as he claimed and they began questioning his credentials. According to the FBI, Zeoli, who spent time with and confided in Cassidy, frequently rebuked his sexual advances. Ultimately, Cassidy left the group, moved from Maryland, and settled in Lucerene Valley, California. From his new home, Cassidy began lashing out at Zeoli and KPC on Twitter. Apparently ignoring such basic Buddhist tenants as showing compassion and avoiding gossip, Cassidy tweeted about Zeoli's alleged sexual promiscuity ("…reputed ex-prostitute…"), impugned her leadership ("…a demonic force who tries to destroy Buddhism"), and called for Zeoli to kill herself. He also attempted haiku ("Long limb, sharp saw, hard drop") and made fat jokes that even third-graders would dismiss as lame ("…so fat if she falls & breaks her leg gravy will spill out"). His tweets – all 8,000 of them – ranged from morbid to juvenile, outrageous to odd. Because of those tweets, Cassidy is now being prosecuted under the federal anti-stalking statute, a law criticized as being, among other things, unconstitutionally vague. A provision of the statute makes speech a crime if it causes "substantial emotional distress" to another person. It does not require a consideration of the speech's content, but can be violated based solely on the effect it has on the listener. Further, the statute appears to broaden the scope of previous anti-stalking laws from speech directed to a specific individual to words spoken to the public at large. In other words, it doesn't distinguish between making a harassing phone call to a person and conveying the same message publicly on a Twitter account. The anti-stalking statute, 18 U.S.C. § 2261A, criminalizes anyone who, (2) with the intent- (A) 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 or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States… 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 that person… (emphasis added) Notice that an intent to kill, injure, or harass is not required. An individual can violate this statute by intentionally causing "substantial emotional distress" with nothing more. Whether or not this occurs is completely dependent on the sensibilities of the listener, not the message of the speaker. No true threat is required, no actual harassment. There only needs to be a distraught listener. "It is nearly impossible for a speaker to anticipate what distress his tweets might prompt in any specific listener or group of listeners," wrote the Electronic Frontier Foundation in an amicus brief filed in Cassidy's defense. "Nor can a Twitter user know or control who is reading his tweets or what their particular sensitivities may be." Compare this to the Massachusetts anti-stalking statute, for example. (Other state anti-stalking statutes can be found here.) Under M.G.L. c. 265 § 43, Whoever (1) willfully and maliciously engages in a knowing pattern of conduct or series of acts over a period of time directed at a specific person which seriously alarms or annoys that person and would cause a reasonable person to suffer substantial emotional distress, and(2) makes a threat with the intent to place the person in imminent fear of death or bodily injury, shall be guilty of the crime of stalking… (emphasis added) In addition to requiring "substantial emotional distress," Massachusetts considers the content of the speech and whether a threat has been made. This seems to be a far more reasonable standard because the crime is not solely contingent on how the listener responds to the speech. As the EFF explained, "intimidation or harassment statutes that have survived constitutional scrutiny have been limited to situations involving speech and conduct encompassing 'true threats'." The complaint against Cassidy lists two provisions of the federal anti-stalking law, the second coming closer to the standard adopted in Massachusetts. 18 U.S.C. § 2261A(2)(B) considers whether the speaker placed a person in "reasonable fear" of death or serious bodily injury. While this language implies that a threat is made by the speaker, however, it doesn't explicitly say so or require such a threat. The content of the speech is still secondary to the response of the person listening to that speech. This is particularly problematic when the listener is a public figure, such as Zeoli. According to the EFF, Zeoli "leads an ongoing public conversation on religion, addressing Internet users on a frequent basis… [and] has produced dozens of publicly accessible online video teachings…" Citing Hustler Magazine v. Falwell, the EFF noted that even if Cassidy did intend to inflict emotional distress, such expression is constitutionally protected. The U.S. Supreme Court in that case referred to its "longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact on the audience." Hustler, 485 U.S. 46, 55. The situation would be different had the FBI focused on those tweets by Cassidy that could constitute actual threats against Zeoli. Instead, the complaint lists a sampling of 68 tweets that include not only the menacing ("Got a wonderful Pearl Harbor Day surprise for KPC…") but also the banal ("…a hearty fuck you in the general direction of Maryland"). Because of the anti-stalking statute, this case can proceed regardless of whether Cassidy's speech is threatening. His tweets could be considered threats, but that's not what the law requires and that was not the focus of the FBI's complaint. Substantial emotional distress suffered by the listener is sufficient. Another concern, as explained by professor Eugene Volokh, is that the federal anti-stalking law doesn't distinguish between the intrusiveness of one-to-one speech, and speaking about someone to the public.According to Volokh: Narrow speech restrictions, such as restrictions on telephone harassment, stalking, and other unwanted contact, are now being broadened from essentially one-to-one contact (an insulting phone call, coming up to someone to berate them, sending continued unwanted mail or e-mail) to one-to-many contact (blog posts, tweets, messages readable by everyone in a chat room or on a discussion list, and so on). Cassidy's comments are equally insulting whether made to only Zeoli or tweeted to the public. But speaking about a person to the public "is much more constitutionally valuable, precisely because it can reach potentially willing listeners," Volokh wrote. "And suppressing it unconstitutionally blocks communication to such potentially willing listeners." The federal anti-stalking law doesn't seem to take this distinction into account like, for example, Massachusetts. That state's statute requires that the defendant's conduct be "directed at a specific person." Cassidy broadcast his torrent of tweets to the entire world and did not direct them specifically to Zeoli. This is an important difference between Cassidy's conduct and the one-to-one contact of a traditional stalker. Even if his actions are just as disturbing. Justin graduated from Suffolk University Law School in 2011 and served as founding president of Suffolk Media Law. He is currently a law clerk at the Boston firm Prince Lobel & Tye and also contributes to the Citizen Media Law Project, where this post first appeared. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @MediaLawMatters. (Image courtesy of Flickr user nicolasnova licensed under a Creative Commons license.) Share this: Twitter Like this: Be the first to like this post.

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