Tales of a Cyberstalker (Vol. 4 of 8)

Twitter’s Quandary: The Humpty Dumpty Twitter User and the First Amendment

As recently as February 2, 2011, a man was charged with cyberstalking a leader of a Buddhist organization on Twitter.[1] [2]  See U.S. v. Cassidy Case No. 8:11-cr-00091-RWT https://www.eff.org/cases/us-v-cassidy .  This case raised two issues:

1.            What happens if the victim was an eggshell[3] e.g. Humpty Dumpty?

2.            Does the First Amendment protect tweets on Twitter?

In Cassidy, William Lawrence Cassidy followed Alyce Zeoli, the leader of Kunzang Palyul Choling, a Maryland-based Buddhist organization.  Cassidy had represented to the leader and other members of the organization that he was a reincarnated Buddhist who suffered from lung cancer.  His love for Zeoli was unrequited and instead of quietly going away, he launched several attacks against her on Twitter and via blog.  This blog ironically is not going to discuss the blog entries, but instead will just focus on the Twitter entries as they relate to cyberstalking.  As an aside, by the time the case was brought to federal court, the victim was living in California and Cassidy was in Maryland.  Cassidy was charged under the federal anti-stalking statute, 18 U.S.C. §2261A and 18 U.S.C.  §2261B[4].  Electronic Frontier Foundation (“EFF”), a non-profit organization that seeks to defend digital rights, filed an amicus brief on behalf of Cassidy in which it raised the two issues mentioned above as the affirmative defense against the complaint filed against Cassidy.[5]  In the amicus brief, EFF claimed a victim could be too sensitive to the tweets and that the language in the tweets was so broad as to penalizes a defendant who may not have been aware of the impact that his words had on the victim.  In essence, EFF claims that Zeoli is an eggshell victim.  She was already sensitive and Cassidy should not be held responsible for her sensitive response to his tweets.  After a careful reading of federal and several state statutes (e.g. California, Florida, Massachusetts, West Virginia and Illinois) against cyberstalking it is clear that the standard for evaluating cyberstalking claims is reasonableness.  The language is “reasonable person” standard or “reasonable fear” that the perpetrator intends harm or death.    Keeping this in mind, take a look at the tweets posted by Cassidy from three different Twitter accounts to Zeoli.

Under Twitter Account aconlamho, the following was sent in May 2003, “late at night at the edge o da farm, something creepin int eh woods gonna do ya harm all ya gots 2 do 2 make it go away is pay pay pay”

Under Twitter Account,  “kpc_watch, ” the following tweets:

Sunday, May 23, 2010 “what do you expect from the unwanted daughter of a weekend prostitute?”

Sunday, May 23, 2010, “(Victim 1) is like a waterfront whore: her price goes down as the night wears on”.

Sunday, May 23, 2010, (Victim 1)’s attendants say she shits the bed regularly and pisses it when she’s drunk: at the moment of death such events are quite telling”.

From the Twitter Account “vajragurl,” come the following tweets:

Friday, June 25, 2010 – “(victim 1) you are a liar & a fraud & you corrupt Buddhism by your very presence: go kill yourself.”

Friday, July 9, 2010 “(Victim 1) is no dakini: shes a grossly overweight 61 year old burnt out freak with bad bowels & a lousy outlook …”

Tuesday, July 13, 2010 “attendees at NY Palyul annual retreat being told to avoid (Victim 1): being warned that she is delusional!” Just finding that out?”

Wednesday, July 14, 2012 “ho bitch (Victim 1) so ugly that when she was born the doctor slapper her mother #hobitch (Victim1)”.

Wednesday, July 14, 2010 “that ho bitch (Victim 1) so fat if she falls & breaks her leg gravy will spill  out”.

Wednesday, July 14, 2010 [Intentionally Omitted]

Sunday, July 25, 2010 “I have just one thing I want to say to (Victim 1), and its form the heart: do the world a favor and go kill yourself.  P.S. Have a nice day.”

Sunday, July 25, 2010 “(Victim 1) you called me a “sick low life pig” oh great Mandarava?  Go kill yourself.”

The post continued on this account through December 2010.

All excerpts were taken from the criminal complaint in U.S. v. Cassidy.[6]

If you received these tweets, would the posts seem harmless or cause you to fear serious bodily injury or death?  If you were Zeoli would you have sought criminal sanctions against Cassidy?  Maybe you would if, like Zeoli, you found that Cassidy had a criminal background including domestic violence.  In addition, during a visit, Cassidy restrained Zeoli by holding onto her arm.  Does it matter that the two parties were on opposite sides of the country separated by thousands of miles?  In the Cassidy case, Zeoli was afraid to the point that she did not leave her house for a number of months and hired armed guards for her protection.  But was she too sensitive? Without Cassidy’s past and prior restraint, Zeoli might have disregarded the tweets as just another psycho with a mobile phone, iPad or computer.

Cassidy looks real guilty right now in light of his past history, but what about his First Amendment defense.  Does the First Amendment, freedom of speech, serve as an adequate defense to Cassidy’s prosecution under Maryland’s cyberstalking laws?  Some would say yes.  Cassidy’s messages were posted on a public forum and not sent directly to Zeoli by e-mail, letter or phone calls which so far falls under the First Amendment defense.  Further, Zeoli, as a religious figure with over 20,000 followers on Twitter, she is a public figure.  The First Amendment also protects speech directed at a public figure in a public forum whose content is not false or malicious.  This may be an adequate defense, however, if Cassidy’s threats were sent via email, letter or phone the First Amendment would not be an issue.  In light of the new social forums, the First Amendment argument may have to be revisited by the courts and the legislature.

Since I am neither a judge nor a legislature, let’s wait and see where this case ends up.  Will the eggshell prevail or will the court decide the First Amendment issue?  Stay tuned for the resolution of the Twitter Quandary.

[1] See Somini Sengupta, Case of 8,000 Menacing Posts Tests Limits of Twitter Speech,” N.Y. Times (Aug. 28, 2011) http://www.nytimes.com/2011/08/27/technology/man-accused-of-stalking-via-twitter-claims-free-speech.html (last visited 11/9/11).

[2] Twitter is a website … which offers a social networking and microblogging service, enabling its users to send and read messages called tweets.  Tweets are text-based posts of up to 140 characters displayed on the user’s profile page.  Tweets are publicly visible by default, however senders subscribe to other users’ tweets.  This is known as following and subscribers are known as followers.  All users can send and receive tweets via the Twitter website. See U.S. v. Cassidy, Criminal Complaint https://www.eff.org/cases/us-v-cassidy

[3] The term “eggshell” is used to describe a victim who suffers from a pre-existing vulnerability or medical condition.  The plaintiff usually proves to be more vulnerable than a normal person.  The defendant under the “eggshell skull” doctrine is liable for any physical injury they cause, no matter how unforeseeable, once they inflict harm on a plaintiff’s body. Gibson v. County of Washoe, Nev., 290 F.3d 1175, 1192-93 (9th Cir. 2002)

[6] See U.S. v. Cassidy, Criminal Complaint https://www.eff.org/cases/us-v-cassidy


~ by sjohn7887 on November 10, 2011.

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