When Does Speech Go From Legal To Lethal?

from the regulation-of-cyberharassment dept

Recently, Judge Roger Titus of Maryland declared unconstitutional a federal law that made it a crime to use the internet "with the intent to harass [or] cause substantial emotional distress to a person in another state." In the wake of that decision, legislatures and courts across the country will need to rethink existing statutes on cyberharassment.

In the Maryland case, William Cassidy had been charged with cyberstalking Alyce Zeoli, a former colleague and a Buddhist religious leader, based on his tweets, such as, "Do the world a favor and go kill yourself. P.S. Have a nice day." Zeoli asserted that the tweets made her so fear for her safety that she had not left her house for a year and a half, except to see her psychiatrist. But the judge dismissed the case. His reasoning will animate discussions in legislatures about how to amend state and federal laws.

Judge Titus indicated that "threats of harm" are punishable, but not communications "intending" emotional distress. He also considered it relevant that the medium used (a tweet) was communicated to the public at large rather than just the victim. The target of the harassment could just choose not to follow the tweets. "This," said the judge, "is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed at another person, and that difference ... is fundamental to the First Amendment analysis in this case." Judge Titus also seemed to think that it was unreasonable for Zeoli to have such a dramatic reaction; he said that Cassidy's tweets were not a "true threat."

Words are powerful. They can move listeners or readers to action, sometimes even to harm themselves or someone else. But generally, our society doesn't punish the speaker or writer. Think about Ozzy Osbourne. Thirty years ago, he recorded the song Suicide Solution. The song states that "Suicide is the only way out," and contains the barely-recognizable lyrics, sung at a faster speed, "Get the gun and try it; Shoot, shoot, shoot."

When a 19 year old shot himself in the head with a .22 caliber handgun after spending five hours listening to Ozzy's music, his grieving parents sued Ozzy and the record distributor. The California Appellate Court rejected their claims (pdf), noting that speech does not lose its First Amendment protection merely because it "may evoke a mood of depression." The court said the lyrics failed to "order or command anyone to concrete action at any specific time."

But courts have held differently when the speech is directly addressed to a particular person. In a case currently on appeal in Minnesota, William Melchert-Dinkel was charged with pressuring two people over the internet to commit suicide. He posed as a young female nurse who pretended to enter into a suicide pact with his victims. The judge in the Minnesota case pointed out that Melchert-Dinkel's "encouragement and advice imminently incited the suicide of Nadia Kajouji and was likely to have that effect." The judge in the case labeled the instant messages as "lethal advocacy" and held that Melchert-Dinkel's words were "analogous to the category of unprotected speech known as 'fighting words' and 'imminent incitement of lawlessness.'" The judge distinguished messages sent to the public at the large, saying that Melchert-Dinkel had the right to take his pro-suicide message to the public--over the internet, on television, and so forth--but did not have the right to address that message to a single, vulnerable individual. Melchert-Dinkel's attorney is appealing the case, based on the First Amendment.

But how direct does a threat have to be? What if Melchert-Dinkel had just sent Nadia an mp3 file with Ozzy’s Suicide Solution? Courts are already weighing whether people's "likes" on a social network can be used as evidence against them. In a Wisconsin case, a judge admitted into evidence a litigant's MySpace reference to a short story in which a judge was harmed. In contrast, a Mississippi court refused to use a dad's MySpace post of Ronald McDonald being shot in the face to prove that the mom should get custody of the kids.

The "intent" standard is also problematic. As Judge Titus suggested, the standard is too broad, covering speech that is constitutionally protected. But the "intent" standard is also, in some cases, too narrow. It might allow someone to evade legitimate prosecution by claiming they didn't intend harm, they just intended to be funny.

That strategy worked for 40-year-old Elizabeth Thrasher, whose victim was her ex-husband’s new girlfriend’s daughter. Thrasher posted photos, the phone number, and the email address of the 17-year-old girl in the "Casual Encounters" section of Craigslist, in which people expressed their interest in casual sex. As a result of the "Casual Encounters" posting, the 17-year-old girl was swamped with sexually explicit cell phone calls, emails, and text messages that included nude pictures and solicitations for sex. One man even came to the Sonic Restaurant where she worked after failing to reach her on her phone, leading her to eventually quit her job out of fear. She testified that the publication of the information made her feel like she "was set up to get killed and raped by somebody." Thrasher’s attorney argued that photos of the girl and her work location were already available on the girl's MySpace profile. He said the postings were "tantamount to a practical joke"--and Thrasher was acquitted.

The issue of targeting a victim versus the public at large is also a question to be considered. Judge Titus suggests that, to be criminally actionable, tweets and posts need to be sent directly to the victim. But because of the nature of digital communications, Judge Titus' distinction between public tweets and direct communications with the victim may not hold up in future cases. Much of the cyberharassment of women does not involve a direct threat from one person to another. In a Connecticut case, a man posted a YouTube rap video of himself waving a gun while threatening to shoot his baby's mom and "put her face on the dirt until she can't breathe no more." Even though the man was in North Carolina at the time and the woman resided in Connecticut, the court issued a restraining order against him.

Under Judge Titus' standard, such a video might not have been a cause for concern because the woman could just have turned it off. This issue of targeting a private person versus the public at large will be key in cases where the person posts information (such as a Google map to a woman's house with a claim she wants men to act out rape fantasies) and the poster himself does not intend to do violence.

As courts and legislators deal with cyberharassment, they'll be determining what the limits are to punishing people for tweets and posts that threaten violence or cause emotional harm. They'll also have to determine whether the rule that the communication must be sent directly to the victim makes any sense in the age of Twitter, Facebook, and YouTube, where public posts--especially those that urge someone else to harm the victim--might be even more deadly than private ones.

Lori Andrews is the author of the upcoming I Know Who You Are and I Saw What You Did: Social Networks and the Death of Privacy


Reader Comments (rss)

(Flattened / Threaded)

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    Anonymous Coward, Dec 29th, 2011 @ 2:24pm

    Unless this is a dune movie speech is never lethal.

     

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    Anonymous Coward, Dec 29th, 2011 @ 2:25pm

    Seems to me to be very simple. If you are actually threatening someone with physical harm it is illegal other than that have a field day.

     

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    MonkeyFracasJr (profile), Dec 29th, 2011 @ 2:29pm

    Tweets vs. the YouTube video

    I am only relying on the description of the video (I have not viewed it), but it seems to me there is a significant difference between it and the tweets of William Cassidy. The YouTube video made reference that the performer was going to do harm to the subject, while the Mr. Cassidy declared that the subject should do harm to herself. Distasteful behavior in either case but one can easily be construed as a direct threat of harm while the other is (less clearly) an expression of dislike.

     

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      R.H. (profile), Dec 30th, 2011 @ 3:35pm

      Re: Tweets vs. the YouTube video

      I haven't seen this particular music video either but a great many rap videos contain what could be considered to be threats against people and property. I've never seen a prosecution or restraining order based solely on a music video though.

       

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    RobM (profile), Dec 29th, 2011 @ 2:35pm

    "What if Melchert-Dinkel had just sent Nadia an mp3 file with Ozzy’s Suicide Solution?"

    Wouldn't that mean millions of dollars for infringement?

     

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    Anonymous Coward, Dec 29th, 2011 @ 2:36pm

    Apples and Oranges

    "In a Connecticut case, a man posted a YouTube rap video of himself waving a gun while threatening to shoot his baby's mom and 'put her face on the dirt until she can't breathe no more.' Even though the man was in North Carolina at the time and the woman resided in Connecticut, the court issued a restraining order against him. [...] Under Judge Titus' standard, such a video might not have been a cause for concern because the woman could just have turned it off."

    Except that Judge Titus' ruling had to do with claims of criminal harassment rather than threats of violence. If a man says he's going to kill his wife, it shouldn't matter one bit whether she ever heard him say so.

     

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    Rich Kulawiec, Dec 29th, 2011 @ 2:57pm

    Interesting article -- and a reflection of changing times

    First, I like the writing in this piece enough to buy the book. Thanks for posting it.

    Second, it's a mark of how far we've come -- not necessarily in a good way -- that legislatures and courts now feel that they should intervene. In the early days of Usenet, 30-odd years ago, we routinely flamed the hell out of each other. There were arguments that went on for months, attracted disputants on both sides, and (more or less) turn into full-on verbal brawls.

    But we all knew it wasn't real. It was just a flamewar in a newsgroup. Nobody whined about it, they either learned to hold their own or use a killfile. (A killfile is a Usenet newsreader mechanism for discarding all articles by a given author, or with a given subject, or other criteria.) On those very, very rare occasions when someone went off-net to complain, the reaction was just about universally negative; it was seen as an underhanded move, an attempt to prevail by stepping outside the rules of the game.

    That's all changing now. But I do hope the courts will try to discern blatant, targeted, specific threats from general comments, flaming, venting, memes (e.g., "gingers have no souls", quite popular on ICanHazCheeseburger), political rants, and all the other routine traffic that's protected by the First Amendment. We don't need an Internet which is constrained to accommodate the most sensitive person imaginable; it'd be so ridiculously bland as to be useless.

     

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      Anonymous Coward, Dec 29th, 2011 @ 3:15pm

      Re: Interesting article -- and a reflection of changing times

      But I do hope the courts will try to discern...

      It's a futile hope. The courts discern nothing but rich vs poor, powerful vs powerless, and attorneys vs unrepresented.

       

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    Bengie, Dec 29th, 2011 @ 3:27pm

    scarey

    I watched Aliens as a child and was too scared to leave my bed.

     

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    Hephaestus (profile), Dec 29th, 2011 @ 5:24pm

    "a man posted a YouTube rap video of himself waving a gun while threatening to shoot his baby's mom and "put her face on the dirt until she can't breathe no more.""


    How is that any different from any Eminem song?

     

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      puddleovmud, Dec 30th, 2011 @ 1:00am

      Re: Eminem's songs

      How very interesting, your remark. If you can bear to, look at "50cent" killing people in his latest "music" video on you tube. It's not right. While these Hollywood entertainment outfits bay for copyright blood, crap like this is, quite literally, poisoning our collective psyche.

       

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    Anonymous Coward, Dec 29th, 2011 @ 9:08pm

    If you want to prosecute and make it criminal to get angry in public we will need bigger jails.

    Even though there may be some rare instances that a guy is being serious about it, there is no way to detect who is or who is not going to attack another person.

    Also being mean to others is how society deals with perceived injustices, verbal assaults also may be just a escape valve that if closed could put real dangerous people into stealth mode, people who really want to harm others do not go about talking to others in public on how they would do it, they show signs to family and friends first in more private settings and start to show physical signs also like buying guns, searching for training.

    It is supposed to be bad, so we all learn why it is important to get along and not chose the path of conflict and attrition. Because it has consequences, bad ones.

    I think this started in the 70's when there was some high profile cases of stalkers that killed their victims, the police instead of showing the facts that they got thousands of those calls mostly from nuttjobs and people afraid of their own shadows and showing how it was something small and rare was forced to do something about it, mostly because they had no public trust, people didn't trust the "pigs" and the justice system saw an opportunity to seize some.

    How many flamewars were started and how many died from it?

    In my view only speech accompanied by some form of physical concrete act should be criminal everything else disgusting as it may be should not, exceptions to that rule should be as rare as pearls, there are some like people who have power over others and go on to drive people to mass suicide or other acts of violence, but they are not that common.

    People need to vent somehow and trying to take that away probably causes more harm than good.

    That is one of the reasons I like "cyberspace", it is a safe simulated space, anything can go on here, even murder of virtual pets and people, it happens here so it doesn't have to happen in the physical world.

    Here you can fail all you want so you don't fail in the real world.

    Even in the case of the girl that got harassed, I'm wondering right now what her dad did it, as a man I understand women can be vengeful and irrational, but he did something he failed to contain the situation and the question for me is how he did fail at that, was he not able to calm down that woman, was something out of his control, if he treated her in a different manner could this been avoided? if yes that woman should be punished some how maybe not by justice but by the public harassing her in the same manner, people who suffer from uncontrollable rage should face the consequences of their acts and be hammered down into compliance not necessarily by a government I believe strongly that social mores are more effective than any judicial system and governments are there to just guarantee that no physical mobs will lynch others.

    Governments can't protect citizens from everything, they don't have the human or financial resources to do so at some point we as citizens are on our own, aside from the fact that governments wants control and they are dangerous to people so they should be the last thing people resort to, not the first line of defense against something.

     

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    Ray Trygstad (profile), Dec 30th, 2011 @ 6:04pm

    Thanks Lori!

    Really good, well-balanced discussion, and even better, it tells me that I'm not the only person at IIT who reads Techdirt!

     

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