Is Twitter part of free speech?

posted at 7:00 pm on August 28, 2011 by Jazz Shaw

Free speech just isn’t as simple as it once was. (Or perhaps as simple as we wrongly perceive it to have been.) While speech was never entirely without constitutional limits, for the most part you were generally free to step up on your soap box and speak your mind, particularly if you were being critical of elected officials or other public figures. But in the internet era you have a vastly larger number of ways to speak to a huge potential audience. When does that freedom turn into grounds for claiming damage and the government telling you, in essence, to sit down and shut up?

When it comes to Twitter, we may be about to find out. A man stands accused of Criminal Stalking on the social network and is now crying foul on first amendment grounds.

Even the Buddha of compassion might have been distressed to be on the receiving end of the diatribes that William Lawrence Cassidy is accused of posting on Twitter.

They certainly rattled Alyce Zeoli, a Buddhist leader based in Maryland. Using an ever-changing series of pseudonyms, the authorities say, Mr. Cassidy published thousands of Twitter posts about Ms. Zeoli. Some were weird horror-movie descriptions of what would befall her; others were more along these lines: “Do the world a favor and go kill yourself. P.S. Have a nice day.”

Those relentless tweets landed Mr. Cassidy in jail on charges of online stalking and placed him at the center of an unusual federal case that asks the question: Is posting a public message on Twitter akin to speaking from an old-fashioned soapbox, or can it also be regarded as a means of direct personal communication, like a letter or phone call?

At Outside the Beltway, Doug Mataconis provides a lot of the required background reading on prior free speech cases and seems to conclude that all Cassidy is guilty of is being an obnoxious creep.

Cassidy’s statements on Twitter, a public place, on a matter of public concern are entitled to that same special protection. That they might be considered “outrageous” is not, by itself, sufficient to criminalize his behavior it seems to me. Had he threatened Zeoli directly or directed his messages to her in private, then we might be dealing with a different set of facts. Based on the facts available, it’s pretty clear that even though Cassidy was acting like a jerk, he was engaging in protected speech.

See much, much more from Eugene Volokh.

These cases are always touchy, and I tend to leave it to the experts. The idea that an internet tool such as Twitter, which is little more than a 21st century bulletin board, can be regulated as to what the users say is unsettling at best. The victim in this case should have had the option to simply block the abusive critic and not see his comments. (Though by changing his account repeatedly he certainly makes that more of a chore to do.) Further, most of the tweets which suggest a threat of physical harm seem to be a bit of a stretch.

And, as Doug notes, none of this seems to have been direct contact which would be the parallel of sending letters or placing phone calls to the victim’s home. If we arrested everyone in this country who acted like a jerk the streets would look much more empty in short order.

But at the other extreme, we do keep hearing about cases where online bullying drives young people to take their own life and all other manner of horrors. It seems, from some of the examples Volokh cites, that our courts do recognize limits to the freedom of speech and that words can sometimes do more than hurt somebody’s feelings. Like I said… it’s complicated.

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Never forget that free speech has a cost…

Khun Joe on August 28, 2011 at 7:10 PM

Why not just sue the jerk for IIED instead of jumping all the way to criminal prosecution?

OhioCoastie on August 28, 2011 at 7:11 PM

To the extent that social networks replace main street, the rules that apply to interacting with people on the street will start to apply. If a stranger follows you down the street for five blocks, harassing you, it stops being protected speech.

RBMN on August 28, 2011 at 7:12 PM

It takes literally two clicks to block someone on Twitter. On the other hand…

Using an ever-changing series of pseudonyms, the authorities say, Mr. Cassidy published thousands of Twitter posts about Ms. Zeoli.

It sounds like he would just keep making new accounts to harass this person. Sounds like stalking to me.

mythicknight on August 28, 2011 at 7:15 PM

Why not just sue the jerk for IIED instead of jumping all the way to criminal prosecution?

OhioCoastie on August 28, 2011 at 7:11 PM

Incitement to commit suicide is a crime in some states, I believe. It’s just nigh impossible to prove incitement without an actual attempt.

gryphon202 on August 28, 2011 at 7:16 PM

I wonder how Sarah Palin would view this, considering she was the target of not just insults, but actual death threats and people wishing she would die (warning: NSFW):

http://www.youtube.com/watch?v=3s4YfBKs39Y

theotherone on August 28, 2011 at 7:21 PM

“But at the other extreme, we do keep hearing about cases where online bullying drives young people to take their own life and all other manner of horrors.”

So, the bully is to blame for those people’s actions?

astonerii on August 28, 2011 at 7:23 PM

So, the bully is to blame for those people’s actions?

In some cases, yes. Recall the young girl who hanged herself after continual ridicule by classmates.

Personally I would think this is ‘stalking’. A person goes out of their way to continue to send messages, knowing the receiver has the ability to block a particular ISP. Seems by using multiple ISP’s the “stalker” intends to continue the harassment and subvert any attempt at counter-measures by the recipient.

GarandFan on August 28, 2011 at 7:57 PM

How about a virtual restraining order.

katy on August 28, 2011 at 8:00 PM

astonerii on August 28, 2011 at 7:23 PM

A bully is responsible for his behavior. That includes very deliberately trying to make someone’s life hell. All choices have consequences, and saying, “I didn’t make her commit suicide, I just did everything I could to make sure she thought her life wasn’t worth living” is the response of a pathetic, cowardly bully.

DrMagnolias on August 28, 2011 at 8:07 PM

Is posting a public message on Twitter akin to speaking from an old-fashioned soapbox, or can it also be regarded as a means of direct personal communication, like a letter or phone call?

That’s not the point. It’s not about where it was said, it’s about directing those comments to one specific person, comments that were clearly intended to be hostile and abusive; i.e. threats.

Skandia Recluse on August 28, 2011 at 8:16 PM

Of course it is.

petefrt on August 28, 2011 at 8:38 PM

I don’t get it.
I use twitter. I can block anyone I want. I am also notified Every single time someone new wants to “follow” me, so I can block or not. I also have the option of making my account ‘private’ so that anyone who wants to ‘follow’ must be approved by me before I see anything that they tweet.

There are psychotic people everywhere. Twitter has tools for you to keep them out of your ‘twitter world’

I don’t think it’s that complicated. If you use things like twitter, you have the power to opt out of watching psychotics post crap.

Do you not? Am I such a ‘new’ twitter user that I’m missing something?

bridgetown on August 28, 2011 at 8:57 PM

How about she just doesn’t read his posts? Sort of like walking away.

ronsfi on August 28, 2011 at 11:52 PM

But at the other extreme, we do keep hearing about cases where online bullying drives young people to take their own life and all other manner of horrors. It seems, from some of the examples Volokh cites, that our courts do recognize limits to the freedom of speech and that words can sometimes do more than hurt somebody’s feelings. Like I said… it’s complicated.

Sorry, but the bullying thing is a bit backwards. Instead of trying to stop someone from being an obnoxious twit, we need to be teaching people how to cope with that.

The communication skills in this country have gone straight down the crapper. People are too lazy to address their own feelings and work them out in an adult fashion. Nowadays it’s quicker to claim victim status and be done with it.

Therapy should be a required for all high school students. Teach them real-life coping skills. Parents are doing a crappy job of it the last few generations.

ButterflyDragon on August 29, 2011 at 2:03 AM

If he @ the victim, he was addressing them personally.

Phoenician on August 29, 2011 at 2:48 AM

Jazz, I may be one of the first victims of computer communications stalking complete with grizzly death threats. This lasted over a year before the creep could be dealt with. I lived for the better part of that period packing heat, illegally. I wanted an even chance if he acted out on his threat.

If that happens again, to me, and I feel threatened I’ll pack heat again, legal or not. If I find out who it is, I will kill him before he kills me. It’s that simple. That is how I felt during the stalking.

Sometimes anti-stalking laws can save lives, even the stalker’s life. I just know I’m not going through that shit again peacefully. I out stubborned the twit not allowing myself to be chased off. That actually is part of what helped nail him. He was nailed, finally for the credit card fraud his adventure entailed. The trial cost him a slap on the wrist with a soggy noodle. His wife, his home, his savings went due to the expenses of the trial. He moved back to his original home in Germany. And I hear he eventually committed suicide. And all I can think is “good (censored) riddance.”

You can probably guess this is why I live online behind ambiguous IDs and pseudonyms. Once bitten, twice shy. I guess I’ll be staying off Google+, eh?

I’ll have to talk to Gene someday about this. I realize he is VERY pro first amendment. I realize why. (Look at his bio.) There MUST be a limit to the First Amendment when it comes to making a person’s life a living hell. You can say what you will about me. But, if you try to force me to listen I have a right to silence you, forceably if you’re nasty enough about it. At some point free speech turns into terrorism.

{^_^}

herself on August 29, 2011 at 3:29 AM

Some thoughts on the general topic;

Wouldn’t part of the answer be somewhat the same as for guns? You can use or misuse an inanimant object, but the object itself (therefore using twitter, newsprint, digital word processor etc)is never in itself a deternminant of guilt.)

Doesn’t a person’s actions make the crime-not the reaction? If a little kid calls an obese man on the street fat and the fat man then kills himself -is truthful speech to then become illegal?

The wrong or right of something is in the action not the reaction. Determinine wrong by the reaction is the very essence of political correctness -its nefarious purpose is deliberately designed to prevent the truth from being spoken based upon someone’s reaction to it -not the truth itself.

America has become a nation controlled by the speech police. It starts in kindergarten and now ends up in court as “hate speech”.

I’m personally offended by most of what godless liberals say. How I’d love to classify abortion as hate speech. Except I know the inevitable consequences of making simple speech illegal.

Let’s start fighting the criminalization and politicization of boorish public speech. Let’s protect it as we do profanity – not perfect, but far better than one side determining what free people may or may not say, because it offends them.

Don L on August 29, 2011 at 7:51 AM

This is one of the most misunderstood areas of law. It’s only a First Amendment case if there is some government actor (or to be more precise, someone acting under “color of authority”).

I don’t know the contours of the bullying laws, etc., but as a free speech matter private individuals can say whatever they want so long as it doesn’t create a clear and present danger (the “fire in a crowded theater” bit).

Not that we’re not heading down the European road to actionable “hate speech” by private actors, but for the time being we’re not there yet.

Blacksheep on August 29, 2011 at 9:39 AM

If religious @$$holes can protest outside a fallen service persons funeral under the free speach clause and not be stopped, then this @$$hole should also have the same rights.

I do not like what he is doing and it is a pain to block him, but the standards must be applied equally to all.

And solutions must be created to help people being harassed by these @$$holes. It is a lot tougher to have free speach in a global community.

mechkiller_k on August 29, 2011 at 9:55 AM

I’m very wary of any argument that equates sending messages out to the Internet to “stalking”. Stalking, it seem, implies either the threat of physical danger, or the existence of some inescapable intrusion into your private life. Some guy posting angry rants on twitter is completely different.

Anyway, has he credibly threatened her with physical harm? That’s already a crime, isn’t it? Has he defamed or slandered her? We already have laws about that, too. Online stalking is not a useful concept.

GalosGann on August 29, 2011 at 2:41 PM