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.
Hans says:
Does a prominent blogger repeatedly criticizing a politician violate this statute if that causes the politician foreseeable emotional distress (such as when it exposes a gaffe or scandal by the politician)? If so, that seems an obvious First Amendment violation. Especially since the truthfulness of communications does not seem to be a defense under this statute.
I have criticized many politicians repeatedly in blog posts — for example, I’ve criticized Obama in hundreds of blog posts and dozens of letters to the editor:
http://www.openmarket.org/openmarketorg-search-results/?cx=010335643000068458611%3A1vzwx–0_li&cof=FORID%3A11&ie=UTF-8&q=Obama+Hans&siteurl=www.openmarket.org%2F#1653
Fortunately, I am not famous, and the President has probably never heard of me, so I can’t have caused him any real “emotional distress” by exercising my pesky free-speech rights.
But more prominent online critics might not be so lucky. It seems perverse that they could be prosecuted for criticizing public figures because they are more prominent and widely-read (and thus more easily accused of causing emotional distress because of the greater influence and reach of their speech, which could cause politicians distress by exposing their wrongdoing or gaffes).
Politicians do sometimes sue their critics over their speech after losing their races for reelection — like the ex-Ohio Congressman who is suing the Susan B. Anthony List for defamation for saying that the new “Obamacare” healthcare law he voted for will subsidize abortion, which he claims caused him to lose his race for reelection. (A federal judge let him sue over the claim, even though journalists like Timothy Carney of the Washington Examiner say that the healthcare law will indeed lead to subsidies for abortion, despite superficial appearances to the contrary).
This statute could be an additional, far more dangerous weapon against dissent.
August 27, 2011, 3:57 pmArthur Kirkland says:
Worth reading for that line alone.
August 27, 2011, 4:00 pmanon says:
Public trolling is now a federal crime? Of course.
August 27, 2011, 4:03 pmHans says:
“Anti-bullying” campaigns in the schools are infringing on students’ free speech and free association rights by defining “bullying” in a ridiculously broad way, to include not only violence but also things like “eye-rolling” and students feeling disadvantaged due to their peers’ “popularity” or perceived “power relationships”:
http://www.examiner.com/scotus-in-washington-dc/campaign-against-bullying-attacks-students-freedom-of-association
There are schools that now force parents to invite all students in their child’s class (or all students of the same sex) to the child’s birthday party, out of the misconception that free association that leaves some kids feeling left out is a form of bullying.
August 27, 2011, 4:12 pmHans says:
An October 2010 letter from education officials in the Obama Administration undermined free speech, and misstated the reach of existing federal harassment laws, in an effort to jump on the anti-bullying bandwagon:
http://www.openmarket.org/2011/03/22/obama-administration-undermines-free-speech-and-due-process-in-crusade-against-harassment-and-bullying/
August 27, 2011, 4:19 pmaeolius says:
EV
August 27, 2011, 4:22 pmThank you for your continued defense of freedom of speech.
However your pickets are too close to the camp.
The assault on the Bill of Rights started with the Patriot Act and the surrounding miasma of repression.
The is no National Security without the security for our nation of the Bill of Rights
You lament the fruits of the poisoned tree while still not going after the tree.
Any attack on the Patriot Act must come from the Right. Which does mean Libertarians like yourself.
Fub says:
In the late 1990s I saw a misdemeanor prosecution for a one-to-many communication, for violation of a no-contact order. One intended recipient of the communication was the protected person.
The defendant had responded to a usenet post by the protected person, quoting them and commenting on what they had written. This was a public communication, one-to-many. But defendant obviously intended communication to the protected person, as he had quoted their post and addressed them by name.
August 27, 2011, 4:35 pmGiant Frog says:
After Cassidy left, he started saying insulting things about Zeoli online, ultimately with over 8000 tweets over the span of several months.
What up with these Buddhists?
“A Superior Court judge in California has slapped New Age ‘Jetsunma’ Alyce Zeoli, also known as Akhon Lhamo Rinpoche, with a restraining order enforceable in all fifty states.
We are informed the order came in response to a cynical cyberstalking campaign — cynical, because it at times masqueraded as an “anti-cyberstalking” effort to “protect women,” but was in fact a systematic campaign of internet and other forms of harassment directed toward a woman: a Tibetan Buddhist nun formerly associated with the so-called Jetsunma Cult, Kunzang Palyul Choling (KPC).
August 27, 2011, 4:41 pm…
In addition to the typical content of restraining orders, the judge has additionally ordered Zeoli to dismantle the ten (10) hate-filled blog sites that she maintains, and to cease all further hostilities. Failure to do so could result in additional criminal charges being filed against Zeoli, and quite possibly others. However, even after being served with the court’s order, one of Zeoli’s sites posted a bizarre call for her followers to arm themselves with Glocks. …”
Sarcastro's Little Brother says:
Wow, this provision is in the Patriot Act?
So everything truly all is George W. Bush’s fault, even laws that were passed before he became President, like this one.
He’s more Svengali than I ever thought. He must have used his magic powers as Governor of Texas to invade Bill Clinton’s body to sign this into law.
August 27, 2011, 4:51 pmGiant Frog says:
Turns out that was from one of Cassidy’s sites, and I’m pretty sure it’s all fake; it’s too late to delete the post, so it can serve as an example of the insulting blog posts.
August 27, 2011, 4:56 pmTruffle says:
I think it should be pointed out that an American court has already gone much farther than what has been done in this “insulting tweets” case. I am referring to the prosecution of Raphael Golb, in retaliation for publishing pseudonymous blogs critical of a popular museum exhibit and for making fun of a well-known NYU department chair in what was obviously a satirical email spoof. See the text of the blogs and emails which are reproduced along with Ronald Kuby’s appeal brief on this site.
Note: An entire section of Mr. Kuby’s brief is devoted to the charges of “harassment” that were an integral part of the case. These charges were premised on the idea that Mr. Golb’s emails were “annoying.” Here we are far beyond discussion of threats, true or otherwise. A simple “annoyance,” in the form of anonymous communications and biting satire sent to university professors and museums and intended to “influence a debate” about an ongoing controversy, has been met with a massive criminal trial and a 6-month sentence at the dangerous Rikers Island prison.
Also note: as reported on various websites, the department chair in question resigned from NYU shortly after the trial, but I have been unable to find any statement made by NYU about the case.
The trial transcripts (which are posted along with the appeal brief that I linked above) feature the prosecutor’s admonition that Golb is a “menace” because he “knows how to use words to stir up dispute,” and the judge’s declaration that his “parody crossed the line.” I have studied the transcripts at length, and cannot find any clear statement of where this “line” is located. What does seem clear to me is that this case will predictably open the door to further assaults on free speech, free debate, and anonymous Internet blogging in America.
August 27, 2011, 4:57 pmGhastly Stuff says:
The internet makes(rather assists) certain, rational people into doing things they would normally eschew. A very prominent psychologist made some interesting observations about certain “personality types”(usually paranoid and antisocial), that love the anonymity of the internet to ply their deviant and often sadistic trade. While in the community, they display a seemingly normal, placid well adjusted presentaion to their family, friends and colleagues. Than, a Jekyll and Hyde “metamorphosis” takes place when they slide behind the “veil of the internet”. Cyberspace is just one more way for twisted, (often bitter) people, to get themselves into all kinds of mischief and crazymaking.
August 27, 2011, 5:02 pmJ. Aldridge says:
Sounds like another law that defines the abuse of the freedom that has a long history of being defined by laws of the peoples representatives who feel such laws are needed.
If a federal law then it is clearly unconstitutional since no power over speech was delegated to the central govt.
August 27, 2011, 5:43 pmOrenWithAnE says:
Eugene, while I agree with you, allow me to play devil’s advocate. A prosecutor could reasonably contend that:
(1) A tweet that mentions a person (@EugeneVolokh) is analogous to a voicemail in that it naturally brings the target’s awareness to it.
AND
(2) That, where the complainant blocks the instigator (therefore no longer receiving those tweets) and the instigator repeatedly creates more Twitter identities in order to evade the blocks, this represents a concerted attempt to harass that particular individual.
That is, the speech could be “one to one” in addition to being one to many and that it does not offend the 1A to require the speaker to respect (by not creating sock-puppets to evade the block) the desire of the complainant not to have this speech brought to her attention.
August 27, 2011, 5:57 pmaeolius says:
Sarcastro’s Little Brother:
Wow, this provision is in the Patriot Act?
So everything truly all is George W. Bush’s fault, even laws that were passed before he became President, like this one.
He’s more Svengali than I ever thought. He must have used his magic powers as Governor of Texas to invade Bill Clinton’s body to sign this into law.
Thank you for your concrete response. If I am correct, the thing that bothered EV was the spread of interpretation from one to one now one to many.
Thrush is a fungus often present in the mouth and is rarely fatal.
However when Immune System is radically compromised as by Chemotherapy, or more often from HIV AIDS, then thrush can spread into various parts of the body and be fatal.
Laws like this Clinton era one have always been around. But the general health of our national immune system kept them in check.
August 27, 2011, 6:13 pmWhen that system was radically compromised by the political and Media hysteria following an audacious raid and blow to our national pride. When this was allowed by almost all, Right and Left, to trump and trample on the Bill of Rights,
then the opportunistic diseased entities EV alludes to, were and are able to easily spread through our body politic.
Obama who is an opportunistic Chicago Pol, has taken the Bush-era laws as a given. And he proceeds from there. And given a chance the Palin/Backmann/Perry types will happily narrow our rights even further.
As the poet said “the worst of us are filled with passionate intensity”.
Well the sun is over the yardarm
Sarcastro's Little Brother says:
[aeolius,
As I mentioned, and you seem to acknowledge, the law in question was passed during the Clinton Administration. While you may have complaints about the Patriot Act in particular, and George W. Bush in general, your attack on the Patriot Act based on a criminal prosecution for a law that was passed BEFORE the enactment of the Patriot Act seems more than a little bit overwrought.)
August 27, 2011, 6:24 pmTruffle says:
There seems to be a great deal of hysteria about online speech, when the appropriate reaction is to realize that it’s only speech. The American Association of University Professors has an interesting statement on this:
See also Montesquieu’s famous discussion of speech, included in the Founders’ Constitution:
Sadly, our hysteria about the Internet is leading prosecutors down the wrong road, encouraged by what seems to be a general atmosphere of apathy and shoulder-shrugging in the legal and academic communities.
August 27, 2011, 6:25 pmHans says:
Eugene notes the issue of whether the First Amendment protects speech that is of private, rather than public, concern.
The First Amendment does protect speech that is of purely private concern, although to a lesser degree (for example, government agencies acting in a proprietary capacity can ban speech by their own employees that is of private concern).
Even on public property, speech by those who are not merely the government’s own employees have First Amendment protection for their private-concern speech, see Judge Walker’s opinion for the Second Circuit Court of Appeals in Garcia v. State University of New York, 280 F.3d 98, 105-07 (2d Cir. 2001) (graduate students need not show their speech is on a matter of public concern)
August 27, 2011, 6:56 pmGhastly Stuff says:
Aids, thrush, oral fungus? Uhhh, I kinda lost the analogy with “freedom of speech”, but I gotta hand it to sarcasto, ooooh niiiice…
August 27, 2011, 7:40 pmTed S. says:
My thought was to wonder what gave the Buddhists cause not to doubt Zeoli’s reincarnation credentials.
August 27, 2011, 7:50 pmanonymous says:
Burlington Cops Defend Arrest Of Obama Critic
http://www.rense.com/general83/burl.htm
Conviction for Disorderly Conduct Based on Angry Political Speech Reversed
http://volokh.com/2011/02/21/conviction-for-disorderly-conduct-based-on-angry-political-speech-reversed/
Fun with Free Speech
August 27, 2011, 8:05 pmhttp://scovlegal.blogspot.com/2011/03/fun-with-free-speech.html
Anderson says:
Am I reading this right? The guy posted on his OWN Twitter account, and that’s a crime?
I could see harassment from flooding someone’s inbox with unwanted e-mails, or posting 100 comments a day at someone’s blog; but if it’s your microphone, then … uh, this is America. Or used to be.
August 27, 2011, 8:57 pmNickM says:
The prosecutor responsible for this travesty is Rod J. Rosenstein, U.S. Attorney for the District of Maryland.
I am very tempted to start an organized effort to give his name the same meaning as “Santorum” on Google searches.
Nick
August 27, 2011, 9:09 pmOwen H says:
The thing about Twitter is that it if someone mentions you, @yournamehere, it shows up in your feed. So by doing so they are in fact sending it to you.
August 27, 2011, 9:09 pmAnderson says:
No, really, someone explain this to my non-Tweeting self.
Is it like his tweets all show up on the target’s Twitter page when she looks at it? Or are they just “out there” for her to find if she’s looking?
August 27, 2011, 9:13 pmAnderson says:
Ahhhhh … thanks, Owen.
That makes the prosecution a tad less bizarre, but only a tad.
Twitter is not on a par with the telephone or e-mail, which might be argued are indispensable (and which aren’t confined to a unique provider). Choosing to have a Twitter account, it seems, is like choosing to live in a glass house — you’ve opted to use a medium that will bring every bad thing someone says about you to your immediate attention.
It seems like an issue between the target and Twitter, not a basis for a federal prosecution.
(Can she turn off the feed function so that every mention of her name does NOT pop into her feed?)
August 27, 2011, 9:20 pmJ. Aldridge says:
Only thing it protects is seditious laws that criminalize public discussion of govt affairs. All else is subject to laws that define the abuse.
August 27, 2011, 9:26 pmAnderson says:
Only thing it protects is seditious laws that criminalize public discussion of govt affairs.
Worth bookmarking as the quintessential J. Aldridge comment, particularly for those who find themselves tempted to debate constitutional law with J. Aldridge.
August 27, 2011, 9:30 pm“Do the world a favor and go kill yourself. P.S. Have a nice day.” | Blog says:
[...] Volokh explains here why 18 U.S.C. § 2261A, used to prosecute Cassidy, is unconstitutional. [...]
August 27, 2011, 9:33 pmgeokstr says:
Only 8,000 despicable, disgusting, disingenuous and dishonest tweets and he’s getting prosecuted?
Hell, under that paltry test, half the Democratic Party, all the Socialist Party and the CPUSA, should be coming up for trial any day now just for tweets like that on Palin alone. And all of the leftist bloggers and websites, most of the non-profit “non-partisan” “public interest” groups and nearly all the self-proclaimed “objective” “unbiased” “journalists” have each probably authored and/or published that many entire 2,000 word posts and/or articles just as libelous against her, let alone tiny 140 character tweets.
A number of the commenters here must be nudging up against that level by now, too.
This guy must have donated $10 to the Republican Party or some similar heinous act.
August 27, 2011, 9:36 pmreadery says:
Some of the sample tweets at least arguably appear to be threatening, whether or not they were true threats. I think the issue is mostly overbreadth, prosecuting for harassment rather than threatening when the broader harassment definition includes protected conduct.
August 27, 2011, 10:28 pmRex Judicata says:
“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).”
This is not directly on point with the above, but the Fourth Circuit’s recent decision in Kowalski v. Berkeley County Sch. Dist. does feature commentary from the court focused on the one-to-many aspect of harassing student speech. See http://pacer.ca4.uscourts.gov/opinion.pdf/101098.P.pdf.
August 27, 2011, 10:56 pmA. Zarkov says:
If this is true, and I find it hard to believe that this actually happens, then we are in some kind of end-stage liberalism. The liberals (or at least some of them) have literally become insane. I like to document this and send it to the Smithsonian as an example of how the 21 Century American mind disintegrated.
The parents need to defy the school and dare them to do something.
August 27, 2011, 11:57 pmCareless says:
I’m guessing stalking laws would be a bit different if you could end stalking by clicking “ignore user”
August 28, 2011, 12:05 amDavid Schwartz says:
I would say the law would be Constitutional as applied if there’s evidence that he engaged in conduct solely intended to bring his posts to the attention of the person he is accused of harassing. For example, if he created new Twitter accounts because she had blocked him, that in no way facilitates his one-to-many communication but only makes it harder for her to stop listening to him. Your freedom of speech does not include shouting in my ears.
You can’t mention someone in a Twitter feed without getting that person’s attention. So mentioning someone is an unavoidable one-to-one aspect. But if he created additional Twitter accounts so that he could mention her and evade her block, that serves no communicative purpose but does serve a harassing one.
The as-applied challenge should prevail if there’s no evidence the speaker continued to aim his speech at its subject in such a way intentionally calculated to prevent the subject from ignoring the speech if she chose to.
August 28, 2011, 12:17 amMJW says:
If you meet the Buddha on the ‘Net, flame him.
August 28, 2011, 1:10 amJ. Aldridge says:
There is a difference between constitutional law and judicial activism over what the law should be.
August 28, 2011, 1:40 amLaura(southernxyl) says:
Back when my daughter was in first grade, in ’93, I wanted to send birthday party invitations to her school, for her female classmates. The teacher said I could do so, if I invited every girl in her classs. It would not have occurred to me to send the invites to school if I were leaving out girls in her class, but evidently it had to others, since they had that policy.
If the rule is that invitations that are given out in class, in front of everyone, cannot exclude anybody, I think that is reasonable. If you want to exclude folks, you can find a less public way to do it.
August 28, 2011, 8:24 amAnderson says:
MJW FTW.
August 28, 2011, 8:32 amPersonFromPorlock says:
I take your point, but when dealing with a federal government that can define a shoestring as a machine gun (as it did between 2004 and 2007), it’s prudent to interpret constitutional protections as broadly as possible. Otherwise we’re likely to discover that our “public discussion of govt affairs” is their “hate speech.”
August 28, 2011, 9:03 amVoluntaryism or Coercion: There Is No Middle Ground (and other news…) » ReasonAndJest.com says:
[...] Eugene Volokh: Federal Government Prosecuting Man for Writing Many Insulting Tweets and Blog Posts About a Religiou… [...]
August 28, 2011, 9:27 amFree speech is not for sociopaths says:
Professor Volokh:
Obviously, I’m not going to defend an amorphous definition of bullying that includes “not inviting the Smelly Kid to your birthday party”. I can see how that would chill speech and associational freedom.
But there are more accurate and operational definitions of bullying that arise out of scientific study of workplace behaviors that destroy careers and lead to PTSD.
Even post-Snyder, the idea that one private individual can ruin the quality of life of another private individual by gleefully spreading the most obscene defamation or delusional opinions that are emotionally harmful and socially hurtful is senseless. It ignores that our laws are for people who respect law, not for sociopaths and psychopaths. A religious figure is a public figure like a politician, but some guy at the bus stop, or another college student at your college, is not a public figure. The idea that sociopaths have free reign to terrorize and abuse so long as they stop short of outright violence or sustained false imprisonment is a license — literally — for sociopaths and psychopaths to drive other people to absenteeism, alcoholism and suicide. The idea that the behavior that constitutes bullying that leads to mobbing, especially in workplaces or educational settings, is not conduct, but only speech, is really an indefensible concept, even if you are a First Amendment absolutist.
August 28, 2011, 9:47 amtemple of doom says:
We can all play this game. Just sign up for Reputation Defender or use any other search tool that finds and reports negative stuff said about you online. Then announce this fact on your website, blog posts, emails, etc.: “Warning: I use technology that enables me to read anything you post about me online. So if you say it, just know that I’ll read it. And if it upsets me, I may just send the feds after you.”
In honor of those who inspired it, we could call it the false incarnation defense.
August 28, 2011, 10:57 amperlhaqr says:
Ah, yes. John Gabriel’s Greater Internet Fuckwad Theory: http://www.penny-arcade.com/comic/2004/3/19/
August 28, 2011, 12:05 pmFub says:
From your link to worktrauma.org:
Assuming arguendo that relieving sociopaths and psychopaths of First Amendment protection could be reliably accomplished, it appears that doing so would hardly make a dent in the “terror and abuse”.
August 28, 2011, 12:33 pmanonymous says:
William L. Cassidy was a one-time aide to Las Vegas mayor Oscar Goodman and has written some interesting books.
August 28, 2011, 12:54 pmFree speech is not for sociopaths says:
My point was not that sociopaths and psychopaths should be relieved of First Amendment protection. My point was that their motives are not in doubt, because they are psychological types who are defined by in fact having those motives and knowing what they are doing. In other words, sociopaths and psychopaths know that what they are doing is not speech; it is behavior. It is a doing for them; not a saying.
Also, many people copy sociopaths and psychopaths without knowing that is who they are copying.
Lastly, many people bully because it is tolerated. If the rules are changed, they stop. Sociopaths and psychopaths will not stop, no matter what the rules are.
August 28, 2011, 12:55 pmMarkie Mark says:
As long as Jerry Falwell is the target (or George Bush for that matter), any manner of insult and vile assertion is Free Speech. But when you start insulting Buddhists… well, that’s a different matter entirely. That’s just sick.
August 28, 2011, 1:16 pmfss says:
“ya like haiku? Here’s one for ya: ‘Long, Limb, Sharp Saw, Hard Drop’ ROFLMAO.”
That’s not a haiku.
August 28, 2011, 1:27 pmFree speech is not for sociopaths says:
lol
August 28, 2011, 1:36 pmGhastly Stuff says:
The behavioral scientist who discussed this pathology, leading to deviance and internet sociopathy, is a board certified psychotherpaist and one of this hemispheres leading authorities on BPD and antisocial personality disorder. The observable manifestaion of “social deviance” has become more apparent with the advent of the ‘net.
August 28, 2011, 3:09 pmanteus says:
The Maryland US Attoney should be prosecuted by the Criminal Section of the Justice Department’s civil Rights Division for violating 18 USC 242
August 28, 2011, 5:25 pmOrenWithAnE says:
Indeed, is it really that hard to believe that the 1A prohibits you from doing both (1) @tagging someone and (2) repeatedly making new accounts when that individual filters you out of their feed?
It’s like the difference between publishing annoying letters in the newspaper and sending them in the mail directly to your recipient.
But she would like to receive mentions of her name from all the other individuals, just as an individual who opts to have a telephone wants to receive calls from non-stalkers.
The key was that she blocked him individually but he continued to make more accounts (that she would have to subsequently ban individually). Twitter does not make it easy to block an individual, for obvious technical reasons.
Did you guys even read the case? She did! He continued to make more accounts to get around her obviously-expressed wish not to receive communication from him.
August 28, 2011, 5:46 pmIs Twitter part of free speech? « Hot Air says:
[...] much, much more from Eugene [...]
August 28, 2011, 7:01 pmTruffle says:
It is most certainly not a crime to send an “annoying” letter in the mail to a recipient. The letter would have to be threatening, and the threat would have to be a true threat. But, of course, lower court judges can be found who routinely disregard the law. This has led to a two-tier system in this country, in which parallel “justice” is exacted by zealous prosecutors whenever it suits their whim — a system that allows government officials to silence people and take years from their lives until, if they are lucky, the appellate courts throw the cases out.
But, even if “annoying” speech could be criminalized, there is a small inconsistency in Dr. Volokh’s article which is perhaps worth pointing out. The second-to-last paragraph speaks of “insults said about the person to the public at large,” a form of speech which is “more constitutionally valuable… because it can reach potentially willing listeners.” The final paragraph, however, refers no longer to the “the public at large,” but merely to “speech on matters of public concern.”
There is, of course, quite a large area in-between, in which speech about matters of public concern is addressed, say via email, to a specific group of individuals, but not to the “public at large.” In other words, the author of the speech creates his own “public” because he believes some of the members of this particular audience may be “willing listeners.” Perhaps we should directly address the point, as many courts have, and make it clear that speech to third parties, concerning matters of public concern, is constitutionally protected. One case that made this clear is the “Mendlowitz” affair discussed by Dr. Volokh here. Other cases are discussed by Ronald Kuby in the above-mentioned Raphael Golb appeal brief.
August 28, 2011, 7:21 pmAnon says:
My point was not that sociopaths and psychopaths should be relieved of First Amendment protection. My point was that their motives are not in doubt, because
they are psychological types who are defined by in fact having those motives and knowing what they are doing. In other words, sociopaths and psychopaths
know that what they are doing is not speech; it is behavior. It is a doing for them; not a saying.
This doesn’t make sense. the constitutionally significant boundary between speech and conduct is not what the perpetrator subjectively believes or intends but society’s perception of the communicative impact.
Even conduct may be “speech” for First Amendment purposes when the government targets otherwise proscribable conduct for its communicative impact.
A law forbidding bullying by any means in a manner intended to stir up resentment, anger or disorder is still directed at speech regardless of the defendant’s subjective motive.
August 28, 2011, 8:51 pmElliot says:
I think the law has jumped the shark.
August 28, 2011, 8:52 pmFree speech is not for sociopaths says:
That’s a generalization that is unwarranted given my actual post. Part of my point is that the beliefs and actions of sociopaths and psychopaths are not generalizable to those of normal people, and our constitutional doctrine, fashioned to guide the behavior of normal people, permits psychopaths and sociopaths too much leeway. I already stated above that “our laws are for people who respect laws, not sociopaths and psychopaths,” so I anticipated your argument. Furthermore, the difference between psychopaths/sociopaths and normal people is not just in their brains; what sociopaths do when they bully actually works and that is their intent. They are not normal people who are speaking and accidentally causing harm. They are people who have no empathy for the pain of others who are intentionally behaving in ways that cause others pain severe enough to trigger PTSD. Your implication — that psychopaths/sociopaths are people who behave like the rest of us, but think differently, is wrong. As I noted earlier, when the rules are changed, normal people conform. Sociopaths/psychopaths keep terrorizing others because it is what they love to do.
August 28, 2011, 11:00 pmGhastly Stuff says:
Actually, most people who suffer from ASPD eventually adapt, cool off and find ways to assimilate into the fabric of society. All the while leaving a small wake of destruction behind them. Often the victim strewn path isn’t severe enough to warrant legal or punitive intervention, as their indiscretions and less than wonderful behavior is not always, or often criminal. Most people generalize and assume all sociopaths are rapists or serial killers or hitmen and the like. These of course would have the diagnosis of ASPD, easily diagnosable, based on the behavioral excesses displayed. If a person gets’ their jollies stealing pens from work and shamelessly fornicates with women and produces babies out of wedlock, these would be some less dangerous or dramatic examples of sociopathy. Often people display antisocial traits, but do not have a full-blown disorder. These socially deviant manifestaions may be crippling and injurious for anyone involved with a sociopath. This personality disorder is more prevalent in males than females at a ratio of approximately 3-1. These malcontents who get their jollies taunting and humilialting people on the internet are gravely disordered and are not easily redirectable. They either cool off voluntarily or are brought under control through the intervention of the authorities.
August 29, 2011, 12:03 amFree speech is not for sociopaths says:
This is orthogonal to the statement I made. The context of my statement that “when the rules are changed, normal people conform. Sociopaths/psychopaths keep terrorizing others because it is what they love to do” was not longitudinal. It was in reference to the change of rules in a particular regime – say, a workplace – within a relatively short time frame. Your comment about how people with ASPD — and not all persons with antisocial personality disorder are sociopaths/psychopaths, by the way — mature is off. Also, both sociopaths and psychopaths are at a higher risk for recidivism than the general prison population once they are incarcerated, precisely because they do not internalize rules and norms properly.
August 29, 2011, 1:48 amJoanne Dow says:
Gene, at what point does simple free speech become terrorism?
In 1985 I was one of a set of victims to online stalking on BIX. You can talk with Jerry Pournelle about it. I am stubborn. I stuck it out. Roberta is one of the women who did not. During the year plus that this went on it was bad enough I decided to illegally pack a .38 revolver at ALL times. (Thank God I didn’t have to use it.) At some point his threats to rape me with his knife, cut me up, and feed me to his dog became genuine terrorism.
I read about the unions who send out large crowds to residential areas to make noise and make a victim’s life bloody hell for awhile. That is not free speech. That is terrorism. And it should be treated as such. Otherwise the first amendment can become a prime tool for nullifying the entire rest of the Constitution stripping away our rights with “implied threats” that “aren’t real”.
I do not see anything in the First Amendment that forces me to listen or even to walk away when somebody invades my space and starts being intentionally obnoxious to make my life miserable unless I give up some right or freedom to buy off their nonsense.
Anti-stalking laws might have saved Sigi’s life. He might have been shut down a lot sooner. As it was, he ruined his own life and eventually took his own life. If he’d have acted out on his threats, I would have made an honest effort to stay alive and used that .38 I was packing.
’nuff said. It’s a long story with VERY bitter memories. The above is just the skeleton.
{o.o}
August 29, 2011, 3:40 amMoe Lane » Since when is Twitter public property? says:
[...] is not to say that, say, Eugene Volokh is wrong to question the law itself. The defendant seems to have avoided sufficiently explicit and credible threats of violence, at [...]
August 29, 2011, 7:57 amReason Morning Links: Censors, Stalkers, and Sack Lunches - Hit & Run : Reason Magazine says:
[...] Can speech be "stalking"? [...]
August 29, 2011, 8:39 amOrenWithAnE says:
MA General Law Chapter 265 Section 43A requires absolutely no “threatening” content whatsoever. Did you think to search before posting or do you just write “most certainly” whenever you feel the law ought to be as you describe?
August 29, 2011, 9:00 amReason Morning Links: Censors, Stalkers, Sack Lunches | Daily Libertarian says:
[...] Can speech be “stalking“? [...]
August 29, 2011, 9:36 amNickM says:
Oren – how does MA case law interpret that statute? I can readily imagine a court interpreting “alarms” to require conduct very similar to “threatening”. [I haven't looked at any of the case law.]
Nick
August 29, 2011, 9:59 amWay to be snipppy AND wrong says:
“MA General Law Chapter 265 Section 43A requires absolutely no “threatening” content whatsoever”
Isn’t the entire purpose of this post and discussion a law that is perceived as overreaching and unconstitutional?
Why do you think citing another such law refutes anything?
August 29, 2011, 10:02 amGhastly Stuff says:
The lions share of felons, “incarcerated” persons in correctional institutions,have sociopathy. The reason they are in prison is because they are “criminals”, often habitually. Being a sociopath does not mean you are cunning, just devoid of remorse and willing to violate the human rights of other citizens with impunity. Approximately 80% and more of all convicted felons suffer from ASPD. Some treatment modalities have been marginally effective.
August 29, 2011, 10:21 amFluffy says:
This is irrelevant.
It may be that the point or purpose of my speech is to reproach the subject of my speech or make them feel bad. So what? It’s my right to do so.
Saying that I can’t engage in negative speech about someone if it makes them feel bad is like saying I can’t engage in a boycott of a business if that boycott makes their business fail. Basically you would be saying that the only reason I have speech or association rights is because my speech and association are pathetic and ineffectual, and that once my speech or association becomes effective, you can ban it. And that’s absurd.
August 29, 2011, 10:24 amDaily Briefings | Tales of Injustice says:
[...] http://volokh.com/2011/08/27/federal-government-prosecuting-man-for-writing-many-insulting-tweets-an... – Buddhist tweet-fights, a surprising federal law that I break at least twice a day on various sports forums, and the First Amendment, courtesy of Eugene Volokh [...]
August 29, 2011, 10:24 amFluffy says:
You don’t have a human right to delude yourself that I hold you in high esteem.
You don’t have a human right to be protected from the knowledge that I think your work performance sucks.
Your “hurt feelings” arising from the knowledge that there are people who don’t like you should not be considered an actionable harm, either through the criminal law or through the tort system.
A public road, even in a residential neighborhood, is not your “space”.
So your example of unions demonstrating on streets near the homes of CEO’s is misplaced.
In those disputes, I wouldn’t even be on the side of the unions in most cases. But they are absolutely, positively exercising protected speech.
August 29, 2011, 10:33 amGhastly Stuff says:
I am only sharing information concerning ASPD. I am not attempting to convert you to any one construct.
August 29, 2011, 10:44 amOrenWithAnE says:
There’s not a lot about the “alarms a reasonable person” prong but quite a bit about “pattern of conduct” prong, as far as I can see in a cursory search.
As in most such cases, I imagine the jury is charged with conducted with performing the ‘reasonable person’ analysis.
For one, the post to which I was responding said the law “certainly requires” something it doesn’t. For another, that law has been held constitutional as applied to all manner of stalking and other harassment. It’s not even a close case. For thirds, the law in question here isn’t being challenged as unconstitutional, only its application to the instant case.
Harassment laws are quite constitutional, no one really believes you can call someone 5 times a day for weeks on end after they request that you leave them alone and claim that the First Amendment protects such behavior. At least I don’t think anyone reasonably believes that.
August 29, 2011, 11:25 amTed says:
Why can’t we draw the line between free speech-ville and terrorism-ville somewhere around “harrassment-ville.” Everyone has a right to speak, but they do not have a right to make people listen. S few direct communications are fine (even if harsh, or innocuous). Many direct communications are not. Avoiding barriers to direct communication are worse.
That a pretty good line? Once you give people fair warning that you’re not interested in their shit, they should stopping shoveling it at you. This includes spam, junk mail, phone solicitations, harassment, etc. It’s all the same; it’s all direct communication that, once a person says they don’t want it, it should end….or else….
August 29, 2011, 1:26 pmTed says:
This is how I understand harassment laws generally. It’s not the content of the speech, it’s the persistent and invasive manner in which the speech is directed toward the victim.
August 29, 2011, 1:33 pmDharmakara says:
What’s interesting is that this story goes back several years, where if I recall correctly Alyce Zeoli (aka Jetsunma Akhon Lhamo) was slapped with a court injunction for the same very behavior, in this instance it was her cyber-stalking a former nun who rejected her as a fraud. As a side note, Zeoli was recognized as a tulka by the same person who recognize Steven Seagal, so that should speak for itself.
August 29, 2011, 6:19 pmFree speech is not for sociopaths says:
http://www.ftc.gov/opa/1995/08/scautoad.shtm
August 29, 2011, 6:52 pmFree speech is not for sociopaths says:
“I was like a soldier crouched in a foxhole while the shells were exploding around you,” said Bill Lepowsky, a mathematics and statistics professor at Laney College in Oakland, Calif.
“My world went from ordered, sensible and predictable to a nonsense, ‘Alice in Wonderland’ world of insanity,” he said.
Lepowsky’s account is not from a war zone. It’s from his workplace.
He is one of many who say they have experienced bullying at work. These experiences have been known to cause stress, depression and suicidal thoughts. And new research suggests that the effects can be worse than those of sexual harassment.
“Bullying is psychological violence,” said Gary Namie, director of the Workplace Bullying Institute (WBI) in Washington, and author of “The Bully at Work.”
“You can take a person’s humanity away from them,” he said.
But even for people not driven to such extremes as suicidal thoughts, the negative impact of bullying is tremendous.
I would note that sexual harassment is actionable.
August 29, 2011, 6:56 pmFree speech is not for sociopaths says:
Actually, no one said anything like it. But I am curious why you are so ready to jump to the defense of sociopaths and psychopaths who drive other human beings to suicide. That would be like jumping to the defense of obviously guilty drug dealers to the extent of making frivolous arguments on their behalf. It’s suspicious.
Also, you’ll note that although I did not use the adjectives pathetic and ineffectual, I did use other choice adjectives and nouns:
I take it you are arguing that under the First Amendment, no legislature has a right to circumscribe the expression of delusional obscenities or intentionally harmful defamation. That is a frivolous argument.
August 29, 2011, 7:05 pmFree speech is not for sociopaths says:
It is a common understanding of the English language for native speakers that if you are walking along a public road and someone knocks you in the head with a baseball bat, he has “invaded your space.”
August 29, 2011, 7:28 pmTruffle says:
Well, the post to which I myself was originally responding seemed to suggest that it could actually be a crime to send an “annoying” letter to someone. The term “annoying” is not found in the Massachusetts law referred to. As for the term “alarm,” several cases, at least in the Second Circuit, have held that harassment laws are unconstitutionally void for vagueness to the extent they criminalize either “annoying” or “alarming” speech. See, again, the cases cited in the above-cited brief, pp. 65-79.
At any rate, I’m happy to concede that my statement would have been more accurate (or less disputable) if I had focused on “fighting” rather than “threatening” words. This Massachusetts case from 2005 defines “fighting words” as words that are “directed to the person of the hearer in the sense that they are a face to face personal insult,” and has an interesting discussion (see pp. 95-99) of some of the cases in various states which have held that the statutes are unconstitutional unless they have a “savings” clause that specifically excludes protected speech (e.g., speech that has a “legitimate purpose”).
August 29, 2011, 10:50 pmBarbara O'Brien says:
I don’t think speech is the primary issue here. The issue here is that someone with an apparent psychological or personality disorder is obsessed with Zeoli, and sometimes such people (they are called “obsession stalkers”) do act out their fantasies and kill the objects of their obsession. The question for courts, IMO, is whether Cassidy represents a real potential danger to Zeoli and if the law gives her any remedy
August 30, 2011, 11:17 amIncorrect reporting says:
The Cassidy case as reported above repeats verbatim the arguments of Ms Zeoli, which unfortunately are very far from accurate. Cassidy NEVER “joined” the group, and thus never left it. Can someone actually check what “joining ” the group actually means here before repeating such stupidity ?
Rather if truth be told he was invited to the group’s Arizona ranch, and given a private chalet there.
If Ms Zeoli had exercised some restraint and a modicum of human – if not reincarnated wisdom- examination here, before inviting Cassidy, and staying with him at the ranch, none of this would have taken place.
If internet freedom of speech is in question here, why aren/t the acid laden comments of blogs held by Miss Zeoli’s associates not taken into account ? Defamation goes a long way there too. try “protecting nyingma” and look up the cached articles and comments. Follow the followers tweets themselves and so on .
The point here is to ensure before one is reporting a case that one understands the actual facts surrounding it. Not simply repeat information which has also come into the public domain and appears to be factual, when it, in fact also stems from hearsay repeated often enough to become a accepted starting point.
Besides the comment above, one has to wonder at the absurdity of the case and the engagement of the parties involved. Nothing Buddhist about any of the behaviors on display , rather the untamed behavior of two stubborn individuals who can’t let things go and go about their own business.
As to whether Ms Zeoli is or was at any time in any danger, is rather absurd. Her only foe are,like for all of us mortals, her own inner fears, as crazily as Cassidy may have pursued the matter on line, she certainly is in no physical danger, nor really ever felt threatened whilst she took rides with him perfectly happily and already fully cognizant of his past in her AZ ranch.
Now we could wonder why such a famous and respected Teacher who teaches others how to still their own minds in the face of adversity may become troubled by idle talks of a stranger, but this is no matter for the Courts of the Land. Negativity is a tool used in Buddhism to turn the obstacles on one’s path to become a source of personal betterment. According to this logic, it would rather seem that Ms Zeoli should be amazingly grateful to Cassidy to provide her with such worthwhile material to work on and demonstrate her mastery of the subject she discusses so eloquently in her Teachings.
September 2, 2011, 4:59 amZen and the Constitutionality of Twitter ‘Cyberstalking’ « says:
[...] 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 [...]
September 7, 2011, 1:13 am