Federal Government Prosecuting Man for Writing Many Insulting Tweets and Blog Posts About Religious Leader

Somini Sengupta at the New York Times wrote today about this case, in which William Lawrence Cassidy is charged with violating the federal antistalking statute, 18 U.S.C. § 2261A by “with the intent to harass and cause substantial emotional distress to a person … us[ing] an interactive computer service … to engage in a course of conduct that caused emotional distress to that person, to wit: the posting of messages on www.twitter.com and other Internet websites concerning [Alyce Zeoli].” (For details about Cassidy’s tweets and post, see the criminal complaint [UPDATE: fixed link].)

Here’s the backstory:

Born in Canarsie, Brooklyn, Ms. Zeoli is considered to be a reincarnated master in the Tibetan Buddhist religious tradition, and is known to her followers as Jetsunma Ahkon Lhamo. She is an avid Twitter user, with 23,000 followers. A representative for Ms. Zeoli said she declined to be interviewed for this article.

According to the F.B.I. and Ms. Zeoli’s lawyer, Mr. Cassidy also claimed to be a reincarnated Buddhist when he joined Ms. Zeoli’s organization, Kunzang Palyul Choling, in 2007. He signed up using a false name and claimed to have had lung cancer, they said. Ms. Zeoli’s organization cared for him and, briefly, even appointed him to its executive team [as Chief Operating Officer]. The relationship soured after they came to doubt his reincarnation credentials and found that his claims of cancer were false. Mr. Cassidy left.

After Cassidy left, he started saying insulting things about Zeoli online, ultimately with over 8000 tweets over the span of several months. A few could be seen as potentially threatening, e.g., “ya like haiku? Here’s one for ya: ‘Long, Limb, Sharp Saw, Hard Drop’ ROFLMAO.” But the complaint isn’t limited to those, or even mostly focused on them; it also includes statemento like, “[Zeoli] is a demonic force who tries to destroy Buddhism,” “[Zeoli]: somebody throw a couple shots of gin in the bitch & get her back on twitter: shes fun 2 play with,” and “[Zeoli] is no dakini: shes a grossly overweight 61 yer old burnt out freak with bad bowels & a lousy outlook: her ‘crown’ is a joke.” And the statute under which Cassidy is prosecuted is by no means limited to threats — the relevant provisions generally ban

engag[ing] in a course of conduct [using the mail or interactive computer services] that causes substantial emotional distress to [a] person” “with the intent to … harass … or cause substantial emotional distress to [that] person.”

This, it seems to me unconstitutional. Speech doesn’t lose its First Amendment protection just because it intentionally causes emotional distress to a person (see Snyder v. Phelps and Hustler v. Falwell), even when there’s a “course of conduct” consisting of two or more incidents of speech rather than just one. If Larry Flynt had published several nasty criticisms of Jerry Falwell rather than just the one in Hustler v. Falwell, his speech would have remained protected. So this portion of the statute is overbroad on its face.

And the statute is in any event unconstitutional as applied to Cassidy. To be sure, he badmouthed Zeoli a lot, but the First Amendment protects frequent speech as well as occasional speech. Someone who makes it his mission to repeatedly criticize a religious leader, whether Jerry Falwell or a leading Scientologist or Ms. Zeoli remains constitutionally protected, just as a newspaper is constitutionally protected even when it goes on a campaign of repeatedly criticizing some government official (unless the speech constitutes a true threat or libel, which are traditional exceptions to First Amendment protection).

And while Snyder leaves open the possibility that speech can lead to civil liability under the intentional infliction of emotional distress tort if it’s on a matter of merely “private concern” (though see the contrary view as to a criminal law in the United States v. Stevens “serious value” discussion), here many of the statements were on a matter of public concern — the moral and spiritual qualifications of a relatively prominent religious leader (again, compare the add in Hustler v. Falwell). For a sense of the prominence of Zeoli (also known as Catharine Burroughs), note that she was the subject of this somewhat critical biography by a Washington Post writer. (For more on the First Amendment overbreadth and as-applied challenges, see Cassidy’s motion to dismiss the indictment, which strikes me as largely correct on these points.)

Naturally, if the prosecution was brought under a statute that banned threats, and the prosecution was focused on those tweets and blog posts that might be seen as true threats, which are emotionally distressing because they are threatening, then the prosecution would be constitutionally permissible. The First Amendment doesn’t protect true threats. But this prosecution appears to go far beyond the threatening statements.

What’s happening — in this case and in some others, such as the abortive Renton prosecution related to videos that mocked certain police officers — is something that I warned about in this 1996 University of Chicago Legal Forum article: 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).

The old narrow restrictions might well be constitutional (see, e.g., Rowan v. U.S. Post Office Department), but precisely because they deal with essentially one-to-one speech — restricting such unwanted speech to an unwilling listener leaves the speaker free to keep talking to other, potentially willing listeners. But they are now being expanded to cover not just insults said to a person, but also insults said about the person to the public at large. To be sure, such one-to-many speech can be just as offensive as one-to-one speech (and perhaps sometimes more so). But it is much more constitutionally valuable, precisely because it can reach potentially willing listeners. And suppressing it unconstitutionally blocks communication to such potentially willing listeners.

And of course this case is yet another illustration that the various proposed anti-bullying bans, which — like the federal statute — on their face apply to a wide range of speech will indeed often be applied to speech about government officials (consider the Berea, Renton, and Hawthorne incidents discussed here) and other public figures (consider the Berea incident as well as this one). I think even speech on matters of private concern should generally be constitutionally protected. But these laws can apply to speech on matters of public concern as well, and are indeed being so applied.

UPDATE: Some commenters suggest that Cassidy might be reasonably prosecuted because he deliberately copied Zeoli on his tweets, by including the text @ZeoliUserName feature, which would lead those tweets to show up in Zeoli’s @Mentions tab. This, the theory goes, makes that decision (to include the @ sign followed by Zeoli’s user name) into an instance of one-to-one speech sent to Zeoli as well as one-to-many speech about Zeoli.

But I don’t think this is the government’s theory. The indictment doesn’t refer to sending messages to Zeoli; it says Cassidy is guilty for “us[ing] an interactive computer service … to engage in a course of conduct that caused emotional distress to that person, to wit: the posting of messages on www.twitter.com and other Internet websites concerning [Alyce Zeoli]” (emphasis added). The criminal complaint filed by the FBI agent doesn’t note any use of the @ feature by Cassidy; indeed, it lists Cassidy’s anti-Zeoli blog posts alongside his Twitter messages — blog posts, of course, don’t have an analog to the @ feature. And the statute under which Cassidy is being prosecuted doesn’t impose any such limitation.

Perhaps a specific statute that bars the deliberate sending of one-to-one messages to a person who has asked that the messages stop, or who would otherwise clearly be substantially distressed by the messages, might be constitutional. But I know of nothing either in the text of the statute or the caselaw interpreting the statute that suggests that this statute is so limited.

By way of analogy, consider Cohen v. California (1971), which reversed Cohen’s conviction for “disturbing the peace” by wearing a jacket that said “Fuck the Draft” in a courthouse. It’s possible that such speech in a courthouse could be banned by a suitably narrow law (on the theory that this would be a reasonable and viewpoint-neutral restriction on speech in what First Amendment law labels a “nonpublic forum”). But the Court held that this possibility couldn’t save the prosecution: “Cohen was tried under a statute applicable throughout the entire State. Any attempt to support this conviction on the ground that the statute seeks to preserve an appropriately decorous atmosphere in the courthouse where Cohen was arrested must fail in the absence of any language in the statute that would have put appellant on notice that certain kinds of otherwise permissible speech or conduct would nevertheless, under California law, not be tolerated in certain places. No fair reading of the phrase ‘offensive conduct’ can be said sufficiently to inform the ordinary person that distinctions between certain locations are thereby created.”

Likewise, a fair reading of the statute in the Cassidy case wouldn’t have informed an ordinary person that using the Twitter @ tag is prohibited by the statute but other insulting tweets are not. And certainly the government’s own theory, with its reference to blog posts as well as tweets, makes clear that the government doesn’t see the statute as being thus limited.