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Man Actually Arrested For Assault With A Deadly Tweet

from the trolling-with-a-deadly-gif dept

Late last year, we wrote about the crazy case in which journalist Kurt Eichenwald was suing an anonymous Twitter troll, claiming that the troll had sent Eichenwald a flashing gif designed to cause some small percentage of epileptics to have a seizure. Eichenwald claimed that it had worked and he’d had a seizure on the spot. As we noted at the time, we’re no fans of Eichenwald. In our opinion, he’s an absolutely terrible journalist with a fairly long history of really weird issues, and a strange obsession with massively overselling stories. He has me blocked on Twitter and has indicated that he’s no fan of us either.

Still, the lawsuit was interesting. At a first pass, the very idea that a “tweet” could be a weapon seems preposterous, and even troubling. But as we noted in that story, Eichenwald actually could have a legitimate case. We cited a bunch of lawyers and law professors, who each laid out why a tweeted image, deliberately designed to cause real harm to someone, could certainly violate the law. Of course, many people (reasonably!) wondered if the troll would ever be found. It’s not too difficult to hide your identity behind a fake Twitter account (in this case, the rather unsubtle “@jew_goldstein”). But, then again, perhaps we didn’t expect that the troll would do this:

That, is an image of John Rivello holding up his own driver’s license. And it’s attached to the very iCloud account that was attached the iPhone that he used, via an “untraceable” Tracfone prepaid account, to set up the @jew_goldstein Twitter account. And we know that because the DOJ arrested Rivello late last week and released the criminal complaint and affidavit that explains how Rivello the troll was tracked down. It’s quite fascinating.

The short version is this: when setting up the Twitter account, a real phone number was used. That information was obtained via a search warrant to Twitter — which also turned up a bunch of direct messages that are kinda useful to prosecutors:

If you can’t see those, it’s a series of Direct Messages from the “@jew_goldstein” account, saying things like that Eichenwald “deserves to have his liver pecked out by a pack of emus.” “I hope this sends him into a seizure.” “Spammed this at [Eichenwald] let’s see if he dies.” “I know he has epilepsy.”

Those statements are kinda useful for law enforcement when charging someone under a cyberstalking law — 18 USC 2261A that includes this:

Whoever–

(2) with the intent to kill, injure, harass, intimidate, or place under surveillance with intent to kill, injure, harass, or intimidate another person, uses the mail, any interactive computer service or electronic communication service or electronic communication system of interstate commerce, or any other facility of interstate or foreign commerce to engage in a course of conduct that?

(A) places that person in reasonable fear of the death of or serious bodily injury to a person described in clause (i), (ii), or (iii) of paragraph (1)(A); or
(B) causes, attempts to cause, or would be reasonably expected to cause substantial emotional distress to a person described in clause (i), (ii), or (iii) of paragraph (1)(A)

That whole “intent to kill, injure, harass, intimidate” part is helped along with direct tweets saying something like “I hope this sends him into a seizure” and “let’s see if he dies.”

Anyway, back to the investigation. With that info in hand from Twitter, investigators asked AT&T for info on the phone number associated with the account (it appears this wasn’t via a search warrant — it looks like law enforcement just asked and AT&T responded, which is kind of consistent with the way AT&T seems to handle these sorts of things). AT&T noted that it was a Tracfone prepaid account, so there was no subscriber info… but also noted that it was using a specific model iPhone.

So, from there, the DOJ sent a search warrant to Apple about the iCloud account associated with that phone number, and that’s where they hit jackpot. Not only did they get back an Apple ID with the name John Rivello, but they got the photo above. And this:

If you can’t see it, that’s the flashing gif that @jew_goldstein sent Eichenwald and it says “You Deserve A Seizure For Your Posts.” This was the same one that Eichenwald’s wife found on Kurt’s computer when she found him having a seizure. The affidavit includes a screenshot she took of his computer screen showing that exact gif. Oh, and also stored in Rivello’s iCloud? A screenshot of an edited Wikipedia page of Eichenwald, claiming that he’d died the day after the gif was set. And also screen shots of an article about epilepsy seizure triggers, and an article about how the police were trying to track down the troll.

So that’s a lot of pretty damning evidence. As lawyer Keith Lee notes, it’s something of a miracle he was tracked down. Even though he took some fairly basic precautions to cover his tracks (fake account, Tracfone phone connection), he didn’t take that many and didn’t seem to realize how many other ways there were to track him down.

I know that some have raised concerns about the idea that anyone could face criminal charges for a tweet — but as we explained when Eichenwald first filed his (civil) lawsuit, there are legit causes of action here — and it’s a fairly rare fact pattern that would lead to these things. It would have to be a tweet or other message that is likely to cause actual harm — which is a very, very, very limited set of tweets. And then there has to be the intent to cause that harm. In this case, it actually appears that all of that is legitimately in place.

Of course, I’ll let the criminal defense lawyers chime in here with a deeper analysis, but in Keith Lee’s post (prior to the actual charges being released) he pointed to that stalking law, and noted a few problems with it, including that it requires that the defendant travels across state lines and tends to require a pattern of such actions rather than a single action. So there may be some issues there, though it wouldn’t surprise me to see an updated complaint with other charges that may be tougher to deal with. So, yes, while there are reasonable concerns about anyone being arrested for a tweet, this does seem like a fairly specific case where at least some sort of legal action does make sense. This wasn’t just annoying someone with a meme — it was causing a real physical attack that could have resulted in death. And it was done on purpose. Don’t do that.

Either way, we now have an actual indictment for a crime of assault with a deadly tweet.

If you can’t see that, it’s the grand jury referral, noting that the offense is “aggravated assault with a deadly weapon” and it notes that:

… said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF) and an Electronic Device and Hands, during the commission of the assault.

We live in such strange times.

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Comments on “Man Actually Arrested For Assault With A Deadly Tweet”

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92 Comments
Anonymous Coward says:

… said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF) and an Electronic Device and Hands, during the commission of the assault.

A gif is multiple pictures combined together into a single animation. They say a picture is worth a thousand words and the bird is the word. And as we’ve seen from Alfred Hitchcock’s ‘The Birds’, it’s possible that a great many number of birds are quite deadly. So John Rivello assaulted Kurt Eichenwald with thousands of birds in a deadly force.

Anonymous Coward says:

Re: Re: Re:

People have died due to injuries received due the falls associated with epileptic seizures. The nature of the onset of a seizure, the person going rigid, increase the injury risk of falls, and yes they will come out of a chair, passing through a point where their weight is supported only by their feet and their head as the latter comes off of the chair, and that is frightening to watch, because you know they will hit the floor hard, and phew, their head missed the office chair leg.
Inducing a seizure is exposing the victim to a risk of serious injury, or even death.

Thad (user link) says:

Re: Re:

They will be hard pressed to find a gif that’s actually killed someone.

They’d be hard-pressed to find a moon rock that’s actually killed someone too, but if somebody were to beat Eichenwald over the head with a moon rock after stating that he intended to kill him, I don’t think the "nobody’s ever been killed with a moon rock" defense would hold up.

I.T. Guy says:

Re: Re: Re:

So a physical violent act is the same as sending an electronic message with a picture in it? I don’t agree. One is a physical assault. Trying to twist this into that is insanity. (Which is what they are trying to do.)

He sent the message along with his insane rants but I don’t believe he ever thought for a second it would actually kill him. Just mindless rants from an idiot with mental issues.

Oa.sys (profile) says:

Re: Re: Re: Re:

So the intent to kill is what matters, not the intent to harm, then?

Oh, it’s fine, officer, I didn’t mean to kill anyone, I just dosed his drink with something that’d give him really nasty hives. He’s fine, it’s just a harmless prank.

A lack of intent to kill does not mean that physical harm was not intended, the novelty of the delivery vector is irrelevant.

Thad (user link) says:

Re: Re: Re: Re:

So a physical violent act is the same as sending an electronic message with a picture in it?

That’s not actually what I said; I was merely criticizing your "nobody has ever been killed with X" reasoning.

I don’t believe he ever thought for a second it would actually kill him.

He said "You deserve a seizure" and "Let’s see if he dies" and edited Eichenwald’s Wikipedia page to say he’d died. Precisely what threshold do you believe he needs to cross to establish that he intended to kill him?

Just mindless rants from an idiot with mental issues.

What legal argument are you actually making here? You seem to be suggesting that he’s not guilty by reason of insanity. If that’s what you’re saying, what are you basing it on? And if not, what are you saying?

Assuming that he is insane — and I’ve seen no evidence of that besides the tautological reasoning that anyone who would rant about a reporter is insane — that doesn’t preclude intent to harm or understanding of the possibility of doing harm. He planned this — no, not very well, but it was clearly planned. He got a burner card and tried to hide his identity. He searched for seizure-inducing images and sent one to an epileptic with a message saying "You deserve a seizure," and separately said "Let’s see if he dies" and edited his Wikipedia entry to say he’d died. Exactly which of these facts indicates to you that he lacked understanding of what he was doing and intent to cause harm and possibly death?

PaulT (profile) says:

Re: Re: Re: Re:

“So a physical violent act is the same as sending an electronic message with a picture in it?”

Yes, if the message has the capability of causing physical violence – which this did, and the sender knew it did. Both are attacks that cause physical harm, even if the message doesn’t originate in a physical form.

“I don’t believe he ever thought for a second it would actually kill him”

Why don’t you believe that? He researched the subject well enough, why would he not believe that death was a possible outcome as that is one possible outcome of a seizure (be it directly from the seizure itself or the result of accidental injury caused after the victim has lost control of his body)?

Thad (user link) says:

As we noted at the time, we’re no fans of Eichenwald. In our opinion, he’s an absolutely terrible journalist with a fairly long history of really weird issues, and a strange obsession with massively overselling stories. He has me blocked on Twitter and has indicated that he’s no fan of us either.

I’m not sure how that’s relevant. Is the intention just to disclose that you’ve got a history with Eichenwald that readers should know about before they evaluate any statements you make about him? If so, then that’s a good call, but it’s not entirely clear that that’s the purpose of bringing it up.

Scote (profile) says:

Re: Re:

It’s a statement fact against interest. It’s a way of demonstrating credibility, that even though Techdirt isn’t a fan Eichenwald, the charges against his alleged assailant are likely legit even though they may superficially seem a stretch of assault with a deadly weapon.

As Techdirt is generally a critic of proprietorial overreach, this post noting the legitimacy of charging someone with assault (under specific circumstances) for a tweeted image demonstrates that Techdirt’s stance is an informed one and principled one rather than a reflexive one.

Ninja (profile) says:

You don’t need specific cyberstalking laws to deal with it. The guy had all the intents to harm Kurt and having a friend who suffers from seizures I can tell it can be deadly yes. It’s no joke. If you try to kill or physically harm someone, doesn’t matter the means, it’s a crime regardless of cyberstalking laws.

My only issue is that instead of seeing this, these awful laws will be praised as the ones that solved the whole thing. And down we go in the slippery slope.

My_Name_Here says:

Re: Re:

Laws like this are written to more narrowly deal with a subject, so the lawyers and the courts have less ways to sneak out from under the charges. More general harassment laws may be restricted to in person contact or by physical means only. Specifically writing a law to deal with online behavior seems pretty reasonable, especially in a case like this.

You have to imagine that laws were narrowly written when the telephone became common. The law does have to run sometimes to catch up to technology.

Ruby says:

Re: Re: How 'bout killing autoplay?

Technically, Twitter failing to allow users to effectivly disable animations (be it video or gif) despite it being well known that a not insignificant number of people, any of whom could be users, can be harmed by them could be view as a violation of the Americans With Disabilities Act.

Anonymous Coward says:

Re: How 'bout killing autoplay?

It’s a shame Twitter itself wasn’t a party to this lawsuit, since it insists on playing animations without permission.

"Autoplay" isn’t something that can be disabled on its own to stop animations. You’ll need to disable Javascript, and install "animation: none !important" as a CSS override (i.e. userContent in Mozilla), at least. Even then you can still get (accidental?) CSS animations, like when moving your cursor over something causes the style to change and now it’s no longer under your mouse (and then it flips between these two states).

Anonymous Coward says:

Re: Re:

I said “littering,” and they all moved away from me on the bench there, and the hairy eyeball and all kinds of mean nasty things, till I said, “…and creating a nuisance.” And they all came back, shook my hand, and we had a great time on the bench, talkin’ about crime, mother stabbing, father raping, all kinds of groovy things that we was talking about on the bench…

TripMN says:

Two birds, one Tweet?

I’m always suspicious of cases where the evidence seems to be leading down a dead end and then “wham” the alleged criminal just falls into the police’s lap. My suspicious mind wonders if the iCloud account pictures are plants to claim a second victim: Eichenwald with the GIF, and Rivello with the planted pics.

I mean really, who uses a burner phone for signing up for Twitter, talks about and plans a death by seizure, and then takes photos of themselves with their drivers license as well as all sorts of other items to link the account to the crime?

That One Guy (profile) says:

Re: Two birds, one Tweet?

I mean really, who uses a burner phone for signing up for Twitter, talks about and plans a death by seizure, and then takes photos of themselves with their drivers license as well as all sorts of other items to link the account to the crime?

An idiot, of which there will always be plenty(even if most of them don’t quite make it to Darwin Award levels of idiocy).

Anonymous Coward says:

Re: Deadly weapon?

Intent has a large part to do with prosecution. It’s why you get people getting off with killing someone because an overzealous prosecutor pushed for 1st degree murder when the facts point to manslaughter.

In your case, the difference would be between accidentally eating peanuts as you packed a letter to someone who’s allergic vs. googling “can peanut allergies be triggered by peanut dust on this letter I am currently packing” and then doing so, then texting your buddy that you’re such a madlad for actually going through with it.

Anonymous Coward says:

Re: Deadly weapon?

I think the fundamental difference is a person who gets seizures can (and arguably should) protect themselves from trolling like this by disabling animated GIFs in their browser (and Flash, etc).

Does that excuse the intent? No. But, it does make it a fundamentally different thing than mailing someone something they have to expose themselves to (peanut dust, poison, etc). With a computer, you can mitigate the attack with software, colored filters over the screen, etc.

Thad (user link) says:

Re: Re: Deadly weapon?

As I’ve said before, there’s a fine line between advising that people protect themselves and blaming a victim. It’s not Eichenwald’s fault someone intentionally sent him an image with the intention of causing him a seizure, and it’s likely that he didn’t even realize that there was a way to shut off animations (he’s not exactly known for his thorough understanding of computers).

That said, if this story raises awareness of the risk of seizures online, and encourages other epileptics to exercise precautions like blocking animations, then something good will have come of it.

Daniel Audy (profile) says:

Re: Re: Deadly weapon?

I suppose you also think that people get raped could (and should have) protected themselves by not going out at night? Blaming the victim for not stopping someone with hostile intent from hurting them is morally reprehensible.

There is a big difference between taking reasonable precautions to minimize risk (not watching anime with flashing sequences for example) and expecting someone to structure their entire life around avoiding the possibility that an asshole who wants to hurt them (Eichenwald didn’t wear sunglasses outside to prevent buddy from walking up to him with a strobe light either – he must have been asking for it).

bob says:

wow a warrant process was followed.

I think this particular case is a perfect example of how cops and courts should function in our digital age.

A real intent to hurt someone was discovered. Cops used warrants to get information. AT&T showed yet again they don’t care about customer’s rights. And following actual evidence cops nabbed a guy.

Except for AT&T this was how it should be done. Cops just need to follow the publicly approved method to investigate crime.

That Anonymous Coward (profile) says:

If exposure to a peanut could kill you, you take steps to avoid it and carry an epipen.
If exposure to X can hurt you, you do something.

Notice the image of the gif, see that play icon in the middle?
If you have epilepsy and piss people off, you really have to be stupid to think no one will ever expose you to a flashing gif. There is plenty of history of this being done… and protecting yourself is a switch in twitter to not autoplay or an addon for browsers that stops gifs from running automatically.

IANAD (I am not a Doctor) but there has been talk that he might not suffer from the type of epilepsy that is triggered by flashing gifs.

Because we’ve NEVER seen someone double down on pissing in someones cheerios, and then run for cover when it gets real.

Assault with a deadly graphic.
ARE YOU FSCKING KIDDING ME.

System seems bent on showing they are tough on the cyber, one can only hope that their high profile case collapses as the truth comes out.

Such high profile drama… what some people won’t do to keep their name in the media.

Anonymous Coward says:

Re: Re:

Interesting story. I think it provides a clear case of why freedom of speech is rightly limited to that speech which does not do harm to another. In this case, the harm is clear and easy to demonstrate. It is not hard to imagine other very clear cases – for example, bullying someone until they commit suicide, or attempt suicide, or become so depressed they cannot work. Or they lose business opportunities. In general, free speech should be limited to that speech which does not do demonstrable harm to others, right?

Anonymous Coward says:

Re: Re: Re:

Don’t you think it possible to first imagine the free speech debate as two competing issues: the benefit to the public to allow free speech, and the harm to the individual in unjustified uses of free speech, which require more care? So, for example, you could “graph” this landscape – with harm running along the Y axis, from 0 harm at the bottom, and increasing harm upwards – and with the requirement of care running along the X axis – with no care required at 0 and increasing to the right. Then, you can see at least four areas of the graph – lower left = low harm, low care, lower right = low harm, high care. Upper left = high harm, low care, and upper right being high harm, high care. Then, the cases to consider are the high harm, low care. For example, in this article, high harm, low care, actually fully intentional infliction of harm. Tough legal issues are always like this, don’t you think? That is, the answers are multi-dimensional.

Mike-2 Alpha (profile) says:

Re: Re: Re: Re:

No, not really. Especially since there is a clear difference between the example of bullying someone into suicide and this case.

In the former case, we are discussing speech intended to cause a person to make a choice. Specifically, to end their life. Words hurt, to be sure, but it is an emotional hurt, which is qualitatively different from physical hurt.

In the latter, we are discussing exposing someone to an external stimulus intended to provoke a physiological response that would cause real and tangible harm to their body. That, according to the victim, did precisely that.

The fact that the offending image included the phrase “You Deserve A Seizure For Your Posts” doesn’t make it a free speech question. There is no equivalency between the two examples. A more apt comparison would be that of a Neo Nazi stabbing someone advocating for racial equality with a knife that had “Meine Ehre heißt Treue” inscribed on the blade.

Thad (user link) says:

Re: Re: Re: Re:

Don’t you think it possible to first imagine the free speech debate as two competing issues: the benefit to the public to allow free speech, and the harm to the individual in unjustified uses of free speech, which require more care?

You can imagine it that way, sure. Emphasis on imagine.

The Supreme Court has roundly and repeatedly rejected balancing tests as a measure of whether or not speech is covered by the First Amendment (see https://www.popehat.com/2010/04/20/cute-widdle-kitties-cute-but-not-cuter-than-first-amendment/ ).

It’s not about weighing benefit against harm. It’s not about a content-based restriction on seizure-inducing GIFs, either; if somebody had posted the same GIF somewhere else without knowing or expecting that an epileptic might see it and have a seizure, then there would be no crime. It’s about the specific context of this specific instance. Man sends GIF, states his intention to cause harm and his understanding that it may even cause death. In that context, and not necessarily in any other context, sending that GIF is unprotected speech.

Allegedly. There still has to be a trial, of course.

Anonymous Coward says:

Re: Re:

GIFs autoplay on twitter. Even if you disable it, it turns itself back on after awhile.

You may dislike Eichenwald(I don’t really have an opinion about him, because I really don’t give a shit), but you are making classic “blame the victim” arguments. You are doing exactly what cops do when they shoot unarmed people who didn’t comply with their orders quite fast enough; making up reasons it was the victims fault, not the perps. Don’t do that.

Thad (user link) says:

Re: Re:

If exposure to a peanut could kill you, you take steps to avoid it and carry an epipen.
If exposure to X can hurt you, you do something.

Notice the image of the gif, see that play icon in the middle?
If you have epilepsy and piss people off, you really have to be stupid to think no one will ever expose you to a flashing gif. There is plenty of history of this being done… and protecting yourself is a switch in twitter to not autoplay or an addon for browsers that stops gifs from running automatically.

As I said up above, there’s a fine line between recommending reasonable precautions and victim-blaming.

You’ve crossed it.

IANAD (I am not a Doctor) but there has been talk that he might not suffer from the type of epilepsy that is triggered by flashing gifs.

"There has been talk" by whom? If you have a source, cite it. If you don’t have a source, admit it.

Anonymous Coward says:

I’m having trouble relating to your example of a neo-Nazi, I’m just not sure how to frame the situation you describe, which involves a knife. My point was perhaps a little different. Free speech has an important benefit to the community, and twitter, as referenced in the article, is a vehicle of free speech. The speech in this case, however, injured another, which was (obviously) not to their benefit. So, there is tension between the benefit of free speech to a community, and the harm to that same community that may be inflicted by free speech. I think most people would agree that if your speech, in this case a tweet, actually harms someone else, then you can be held accountable for that harm. That is, that we all must balance our rights to free speech to the rights of other not to be damaged by that same speech. We are all accountable to each other, and we should be.

Mike-2 Alpha (profile) says:

Re: Re:

A sequence of flashing lights, devoid of informational content is not speech. The message “You Deserve A Seizure For Your Posts” did not harm him. It was simply overlayed atop the repeated flashes. It is no different than if it was inscribed on a blade, and using a knife that has words on it doesn’t make a stabbing speech.

Sure, Twitter is a vehicle for speech. And the image was transmitted to the target via Twitter. That doesn’t mean that all aspects of the image count as speech. A car is also a vehicle for food delivery. That doesn’t mean that everything transported in a car is a pizza.

Also, you’re wrong. Free speech doesn’t HAVE important benefits; free speech IS the benefit. The ability to exchange ideas, even repugnant ones, without fear of government restraint is essential to a free society. Period dot.

Anonymous Coward says:

Re: Re: Re:

Again, I’m not sure I’m really getting my point across as I intended to. Another view of my point is to consider who the laws are intended to protect. Each community creates its own laws, for example, each country, each state, etc. Free speech, in any particular circumstance, may be of benefit to some of that community, and may harm others in that same community. So, there may be a tension between those who are served by free speech, and those whom are harmed by free speech. There is not a “universal view”, there is actually only the separate views of all the separate individuals in the community. And when conflicts in individual views arise, the court system tries to sort it out. In this case, the criminal court system seems appropriate, since the harm and malice were so obvious.

Mike-2 Alpha (profile) says:

Re: Re: Re: Re:

No, I understood your point. I just reject it as I find it to be entirely specious.

First off, while some may be harmed by an individual’s speech, free speech is, itself, a benefit to them, as it means that they may express their views just as openly and without fear of restraint. And I use “harm” in the loosest of senses, as protecting people from emotional distress is not the kind of pressing national interest that a society that considers freedom important should be concerning itself with.

Second, as I pointed out, the issue was not the message sent by the tweet. The issue was the flashing lights, which were not any form of speech, as they conveyed no message or information at all. At best, they conveyed the message “I wish you harm” in the same manner that a gunshot would have.

Saying “You Deserve A Seizure For Your Posts” is speech, and I will vehemently defend a person’s right to do so. Attempting to cause a seizure, even over the internet, is assault, and thus a crime. And, as the article shows, already recognized as such, thus no free speech questions are raised by this case.

Anonymous Coward says:

Re: Re: Re:2 Re:

OK, perhaps you are right, I’m not sure. It seems to me that the argument that says my right to throw my fist into the air ends when my fist encounters your nose is easy to understand. I would say that his right to tweet does not extend into tweets that injure others. The injury in this case is very obvious and unmistakable, clearly criminal. Other injuries might be less obvious, but the same argument applies. You have your rights, I have my rights. When they collide, we need a third party to sort it out. The police are great (usually) at this kind of thing, civil courts perhaps less so (expensive, for example), but some consistent mechanism must be applied when rights collide. Free speech, like many things, is not absolute, nor should it be, another classic example being yelling “Fire” in a crowded theater. It’s just speech, even in that case, but has the real potential to cause injury in some situations. Everyone must apply appropriate filters in order to avoid injuring others, or they must pay the consequences (including monetary reimbursement or even prison time) of not doing so.

JustMe (profile) says:

I hope he ends up in jail

And here’s why…

This wasn’t a spur of the moment tweet; he took the time to research and find specific pictures that would cause epileptic seizures, attached it to the tweet, and added text that indicated he was intending to injure or kill.

This is =NO= different than if someone researched how to cut a break line, cut the line, and then left a note under the car saying that he hoped the victim would die.

I would also argue this is not much different than releasing embarrassing nude photos of an ex and then telling them to kill themselves.

Just because it is digital doesn’t mean it isn’t a crime.

Anon says:

Intent

The point is the sender, assuming the evidence is correct – knew the victim was susceptible to epileptic seizures, in fact researched the situation, then deliberately sent a message containing something that was specifically designed to induce an epileptic seizure. As others have said, it’s no different than if he’d known the target was susceptible to serious peanut allergies and sent a letter containing peanut dust. Intention, and the actions you take to carry out your intentions, are what make a crime.

Anonymous Coward says:

Re: Intent

Yes, that is often true, crimes usually involve intent. But what about someone who thinks it might be funny to watch everyone running out of a theater after yelling “Fire!”. Perhaps they never really intended anyone to be hurt, but if people do get hurt, they should shoulder the responsibility, don’t you think? I would suggest that our responsibility to each other involves more than just lack of a criminal motive, but also includes a standard of care. How much care is owed to others should at least account for normal adults not to have a reckless disregard for each other, like yelling “Fire!” at the wrong time, or in this case, sending an encoded message designed to harm another.

William Braunfeld says:

Re: Re: Intent

This is still unrelates to free speech. Apart from the example you are quoting being bad law to begin with (I am pn a phone so I would appreciate it greatly if someone grabbed a link to Techdirt’s rebuttal to it for me), shouting “Fire” in a crowded theatre with intent to cause mischie is not protected speech because it is NOT SPEECH, is it mishief.
It is arguable that someone couls claim free speech if the act of yelling Fire! in a crowded theatre was done with a reasonable (and preferably evident) political or social message as intent. In this case, it is still likely that the person involved is aware of the associated mischief and still intends to cause it, therefore there is still intent towards mischief.
Instead, consider someone inflicted with Tourettes syndrome, shouting Fire! due to that. They did not intend mischief; indeed, they didn’t even intend to shout! Would you still suggest that this hypothetical person should be tried for damahes caused?

Thad (user link) says:

Re: Re: Re: Intent

I am pn a phone so I would appreciate it greatly if someone grabbed a link to Techdirt’s rebuttal to it for me

I don’t know about Techdirt’s, but here’s Ken White’s:

https://www.popehat.com/2012/09/19/three-generations-of-a-hackneyed-apologia-for-censorship-are-enough/

This bit summarizes the argument pretty well:

People tend to cite the "fire in a crowded theater" quote for two reasons, both bolstered by Holmes’ fame. First, they trot out the Holmes quote for the proposition that not all speech is protected by the First Amendment. But this is not in dispute. Saying it is not an apt or persuasive argument for the proposition that some particular speech is unprotected, any more than saying "well, some speech is protected by the First Amendment" is a persuasive argument to the contrary. Second, people tend to cite Holmes to imply that there is some undisclosed legal authority showing that the speech they are criticizing is not protected by the First Amendment. This is dishonest at worst and unconvincing at best. If you have a pertinent case showing that particular speech falls outside the First Amendment, you don’t have to rely on a 90-year-old rhetorical flourish to support your argument.

(And back to quoting William Braunfeld’s post, not Popehat:)

shouting "Fire" in a crowded theatre with intent to cause mischie is not protected speech because it is NOT SPEECH, is it mishief.

Good point. Shouting "Fire" in a crowded theater is legal if there’s actually a fire; ergo, it’s not the speech that’s illegal, it’s the intent.

Anonymous Coward says:

Re: Re: Re:2 Intent

Interesting. That sounds reasonable. I would just add that there are two sides to the intent – the intent to harm, or the lack of intent not to harm. My belief is that as a society, we owe each other some measure of care such that we avoid injuring the health and welfare of each other. If someone knew, or should have known, that harm was likely to result from their action, they can be accountable for that harm. It’s kind of the yin and yang combination of intent to harm, or lack of intent not to harm. We are, in some way, all our brother’s keeper, in my opinion.

Get off my cyber-lawn! (profile) says:

Quit arguing over details

If I coat a letter with peanut oil knowing the recipient is allergic to peanuts then I am guilty of attempting to harm that person and the specific charge would depend on how harmful my actions were.

If this idiot sent the .gif knowing (OR EVEN JUST BELIEVING) that the receiver is prone to bad effects of strobing lights then charges may be considered just the same as the peanut-oil letter.

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