State Appeals Court Upholds Criminal Conviction For Twitter Harassment Targeting An Autistic Student

from the @-me-for-felony-charges dept

A tough case dealing with some horrendous behavior and a pretty broad reading of Minnesota's harassment/stalking laws has resulted in a sustained conviction on felony charges against a minor. The state appeals court summarizes the events in its decision [PDF]:

In March 2016, high school students, W.K., B.L., and appellant A.J.B., discussed that M.B., a fellow student who had been diagnosed with autism and ADHD, had recently posted some tweets discussing girls at school. B.L. and A.J.B. told W.K. that they wanted to post materials on M.B.’s Twitter page to elicit a “negative response.” A.J.B. created a Twitter account with no identifying information called “Jeb Bush’s Guac Bowl.” A.J.B. then began tweeting messages tagging M.B.’s account over two to three hours, with several referring to autism. One post contained a sign saying “Autistic Children Play Here” with a caption reading “Meanwhile at [M.B.]’s Daycare.” Another post contained a checkerboard of images with M.B.’s face and a caption reading “Click the Autistic Child.” Another post encouraged M.B. to “try a new cologne called ‘Anthrax.’” One post encouraged M.B. to “consider suicide,” while another contained an image stating “Consider the following” with a picture of a person holding a Clorox Bleach bottle. A.J.B. also posted an image of Pepe the Frog, “a known hate symbol,” hanging by the neck on a rope.

Another fine example of man's inhumanity to man: high school edition. Trash rando A.J.B. ended up with two misdemeanor charges and one felony stalking charge -- the latter predicated on the victim's disabilities. There are a few concerns with the resulting ruling, not to mention the events leading up to the criminal charges.

To begin with, the victim was not even aware of the tweets until a school administrator brought them to his attention. The administrator had presumably been tipped off by other students. This led to the victim expressing suicidal thoughts and an extreme reluctance to return to school.

This dovetails into the court's weird interpretation of Twitter mechanics. This confusion over how Twitter operates may have played a part in upholding the charges and finding A.J.B.'s speech unprotected by the Constitution. Eric Goldman points out this misapprehension allows the court to bypass the student's free speech defenses, one of which compared tweeting unpleasant messages was no different than "posting flyers on walls."

The court’s technological description of @tweeting is... garbled. It recounts evidence that “the act of tagging someone means that the messages are ‘on their wall. Anyone can see it but [the poster is] just making sure that the [tagged] person sees it.'” The reference to “their wall” in this passage is confusing. I cannot appear in someone else’s Twitter timeline unless they retweet me, whereas in Facebook and LinkedIn, my posts can show up on other people’s walls (at least in some cases) just by including their name in my post. Furthermore, AJB’s barrage of @tweets would NOT appear in AJB’s main newsfeed (as opposed to the “tweets and replies” option), and and would not seen by most readers, if the @ reference was the tweet’s first character; and none of MB’s followers would have seen AJB’s tweets unless they were also followers of AJB. Plus, MB would see the @tweets only if MB hadn’t blocked AJB and only if MB looks in the notifications area (which not everyone does). There’s a lot of technological complexity about how content appears on Twitter that the court glossed over.

As Goldman notes, blocking accounts is one remedy that doesn't involve law enforcement. It's of limited utility, considering new accounts can be created in a manner of minutes, but Twitter does give users some tools to deal with harassment and other unwanted interactions.

Second, this could have been handled by the school, rather than turning it into a criminal case. The school was the entity that brought the tweets to the attention of the student and a case could be made the harassment interfered with M.B.'s ability to continue attending school. While this education interference would have engaged school policies and discipline, this would not be without its own problems. Doing so would effectively punish someone for acts committed off-campus, which would raise its own Constitutional concerns.

The law itself is no help. It's written broadly enough the court finds it easy to criminalize otherwise-protected speech.

Per this court’s interpretation, it’s criminal stalking in Minnesota to send two or more @tweets to a person knowing they would cause the person to “feel frightened, threatened, oppressed, persecuted, or intimidated.” The Minnesota criminal harassment statute is equally dubious, applying when a person sends two or more @tweets “with the intent to abuse, disturb, or cause distress.”

As Goldman notes, many of us are subjected to "criminal" behavior every day on the platform. Perhaps some of us even engage in it, as "causing distress" may mean little more than vehemently disagreeing with someone's statements, views, political/religious preferences, etc.

There are a lot of free speech implications in play. The court threads the needle, but not in a helpful way. In order to find A.J.B.'s speech unprotected, it seizes on A.J.B.'s "targeting" of the autistic student by "tagging" him in the tweets.

The law is bad and the court is reading the law as the legislators wrote it. This could also be the way the legislators intended it to be read, rationalizing that no prosecutor would move forward with questionable charges predicated on a broadly-written law with an absurdly low bar for engagement (two tweets). Legislators either don't know or don't care that prosecutorial discretion means pursuing ridiculous prosecutions and overcharging defendants. It almost never means refusing to move forward with questionable cases. If the ruling is bad, it's because the law invites bad rulings. The fact that the court doesn't understand how Twitter works only makes it worse.


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  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 25 Apr 2018 @ 12:09pm

    You're against what ordinary folk think ordinary, and in favor

    of some mythical unlimited Right to UNNECESSARILY do NO GOOD but only insult and harass.

    You little fiends of course want discourse brought down to level that advantages you. Ordinary people simply won't resort to vile lies and spewing filth. That's evident every day here at Techdirt, with off-topic sheer ad hom that's driven everyone reasonable away.

    Enjoy this little walled cesspit while can, kids. Eventually adults will make rules to clean it up. -- Just remember that YOU are not fit for civil discourse, and there's an even worse generation taking over.

    reply to this | link to this | view in chronology ]

    • This comment has been flagged by the community. Click here to show it
      identicon
      Anonymous Coward, 25 Apr 2018 @ 12:10pm

      Re: You're against what ordinary folk think ordinary, and in favor

      By the way: remember what nearly cost nasty little Mikey $15 million? UNNECESSARY AND PROLONGED INSULTS.

      reply to this | link to this | view in chronology ]

      • icon
        Roger Strong (profile), 25 Apr 2018 @ 12:22pm

        Re: Re: You're against what ordinary folk think ordinary, and in favor

        If he merely insulted, he likely would have been ignored. What got Mike dragged into court was his reporting proven and relevant facts.

        (This is why no-one is even suggesting dragging you into court.)

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Apr 2018 @ 1:11pm

        What kind of failed artist are you ?

        reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Apr 2018 @ 2:01pm

        Remember when you literally begged, repeatedly for this little cesspit to not hide your bullshit. We do.

        reply to this | link to this | view in chronology ]

      • icon
        Stephen T. Stone (profile), 25 Apr 2018 @ 2:26pm

        Re: Re:

        remember what nearly cost nasty little Mikey $15 million?

        Shiva Ayyadurai took offense to Techdirt stating facts about his claims regarding the invention email while using hyperbolic language to express opinions about him. Last time I checked, calling someone an asshole while reporting how they acted like an asshole remains a constitutionally protected form of expression.

        reply to this | link to this | view in chronology ]

        • identicon
          Thad, 25 Apr 2018 @ 2:36pm

          Re: Re: Re:

          remember what nearly cost nasty little Mikey $15 million?

          ...did he just describe a lawsuit that was dismissed before it even went to trial, due to its failure to cite a single actionable claim, as "nearly" a declaration for the plaintiff?

          Makes sense to me.

          Now if you'll excuse me, I'm going to walk to the kitchen and grab a snack. Or, as I like to call it, nearly run the New York Marathon.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 25 Apr 2018 @ 3:54pm

            Re: Re: Re: Re:

            Wow! What's your time?

            reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 25 Apr 2018 @ 8:24pm

            Re: Re: Re: Re:

            ...did he just describe a lawsuit that was dismissed before it even went to trial, due to its failure to cite a single actionable claim, as "nearly" a declaration for the plaintiff?

            Well, how else is he going to grieve over Shiva's loss except by constantly denying reality? Denial of rationale is, after all, the copyright enforcement fanboy's bread and butter: to imagine damages where there weren't any.

            reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Apr 2018 @ 12:58pm

      Re: You're against what ordinary folk think ordinary, and in favor

      That's evident every day here at Techdirt, with off-topic sheer ad hom that's driven everyone reasonable away.

      Given your "off-topic sheer ad hom" attack you are clearly the source of that of which you speak. Maybe if you disappeared the problem would go away.

      reply to this | link to this | view in chronology ]

    • icon
      hij (profile), 25 Apr 2018 @ 1:03pm

      Re: You're against what ordinary folk think ordinary, and in favor

      Can you point out where in the 1st amendment where it says you must do some good in how you express yourself?

      Also, you are a poopy head. (Now I have to make sure to never go to Minnesota.)

      reply to this | link to this | view in chronology ]

    • icon
      Stephen T. Stone (profile), 25 Apr 2018 @ 2:20pm

      Re: You're against what ordinary folk think ordinary, and in favor

      Ordinary people simply won't resort to vile lies and spewing filth.

      You’re absolutely right. Only extraordinary people, such as our current sitting president, resort to lies and filth.

      reply to this | link to this | view in chronology ]

  • icon
    That Anonymous Coward (profile), 25 Apr 2018 @ 12:12pm

    Sometimes Johnny is a jackass, and the answer is to have his parents learn to discipline.
    Drawing attention to the tweets... w t f...
    Can they school be charged as an accessory?
    They learned of the tweets, the target had no knowledge of them, so they rubbed them in his face.

    Sometimes when you scream there ought to be a law, you end up doing stupid shit like this.

    Kids says horrible things, awarded with felonies which will TOTALLY make him not blame his target for his future of being rejected form asking if people want fries with that.

    Parents... be fscking parents.
    I'm willing to bet a nice sitdown would have gotten everyone on the same page & if the behavior continued there are other ways to deal with it... horrible as they were... the taxpayers literally wasted time, money, resources to take up a grade school name calling.

    So outsider kid will be made more of an outsiders as people avoid interaction for fear of being in court next. Kids who mocked will be branded as felons, because EVERYONE always wants to know what the crime was you got convicted of before telling you no GTFO felon.

    A better law would have been requiring Judges to understand the technology before they can make decisions about it.

    reply to this | link to this | view in chronology ]

  • identicon
    Michael, 25 Apr 2018 @ 12:25pm

    As the parent of an autistic child, I find everything I have seen from these bully's horrific and in need of some serious punishment.

    However, I think this is parental punishment territory and not even the schools. I don't understand how criminal charges ever ended up being considered.

    30 years ago, wouldn't think just have involved the school calling both parents and someone getting hit with a belt?

    reply to this | link to this | view in chronology ]

    • icon
      That Anonymous Coward (profile), 25 Apr 2018 @ 6:45pm

      Re:

      Oh no, we can't use a weapon on a child!!!!

      Most/Many parents these days refuse to accept that THEIR child did anything wrong so they had to be goaded into doing it. Not my baby! I raised them better than this, you must be mistaken... and administrators back-down to avoid a bad yelp review.

      Parents don't want to be parents, they want to be buddies.
      Telling a child no is a sin!
      Ex. The parents who DEMANDED that big tech companies make the assistants KNOW when their children were not saying please & thank you or asking rude things!!
      It never occurred to them speak with their kids themselves or unplug the damn thing until the kids behaved.
      Nope we need the giants of tech to have the computer voices tell the kids to say please & thank you.

      Everyone gets a ribbon, everyone wins, everyone gets to feel good.... well except the child on the spectrum who knew nothing about this so the school had to rub them in his face so he would feel the right amount of sad so they didn't feel bad about taking the other kids to court.

      Part of life is failure, it teaches important lessons. Allowing them to always win no matter what, makes them assume that when they hit the real world if they aren't showered in praise it is because the other person it out to get them.

      Part of life is learning if you slap that kid, he's gonna slap you back. Actions have consequences, but to even consider this crap as felonies... perhaps we need to remind the adults how to adult.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Apr 2018 @ 12:52pm

    Felonious tweet?

    A fucking tweet was a felony? God just stop the planet, I wanna get off..

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Apr 2018 @ 1:21pm

    the slow steady expansion of thought-crime laws

    It's sad to see this country slowly evolving from one that used to value personal freedoms above all else (including the freedom to offend others) into a society where hurting someone's feelings or causing a person to feel "unsafe" is a criminal offense of the first order, that even criminalizes children for doing childish things.

    In this case, the only "crime" was having bad thoughts, since the "victim" of those bad thoughts was not even an intended audience.

    Not unlike the Scottish Youtuber who was tried and convicted of Hate Crimes for teaching his girlfriend's dog to give a "Nazi salute" as a joke. It's good to see people coming to his defence, including massive donations to his legal costs (or are these freedom-loving defenders all Nazis also?).

    http://www.newsweek.com/youtuber-count-dankula-who-taught-dog-nazi-salute-raises-100000-pay-l egal-fees-900418

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Apr 2018 @ 6:19pm

      Re: the slow steady expansion of thought-crime laws

      I'm not sure if the society itself wants to criminalize merely offending people.

      Well, from the looks of it, the chances might be high.


      But you can be sure that "the powers that be" want to criminalize offending people.

      That way, you can't even talk out when they do their usual shit.

      Because offense.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 25 Apr 2018 @ 8:02pm

        Re: Re: the slow steady expansion of thought-crime laws

        This idiot got 20 years in prison for crashing a picnic and basically acting like an obnoxious jerk. Of course, if the roles had been reversed, it's highly unlikely (if not unthinkable) that "hate crime" charges would have even been filed.

        http://www.dailymail.co.uk/news/article-4265496/Georgia-couple-given-years-prison-hate-crime.h tml

        reply to this | link to this | view in chronology ]

        • identicon
          Anonymous Coward, 25 Apr 2018 @ 8:50pm

          Re: Re: Re: the slow steady expansion of thought-crime laws

          What they did was very wrong, but TWENTY YEARS? Most people convicted of DUI homicide by vehicle don't get even close to that.

          reply to this | link to this | view in chronology ]

          • icon
            Roger Strong (profile), 26 Apr 2018 @ 10:32am

            Re: Re: Re: Re: the slow steady expansion of thought-crime laws

            13 years in jail for one, and six years for the other. A couple other things worth mentioning:

            • Contrary to the Daily Fail article above, they were not charged with "hate crimes." Georgia does not have a hate crime statue.

            • They were convicted on charges of terroristic threats, aggravated assault with a deadly weapon and a Georgia street gang terrorism statute.

            • It wasn't just the one family they terrorized. It was a whole string of incidents where they went around pointing guns at black people and terrorizing them.

            • Their own social media accounts helped convict them, documenting their links to the KKK and skinhead organizations...

            • ...and documenting what the DA called a “wide sweeping attempt” to get all members of the Respect The Flag group to coordinate their lies after the incident.

            reply to this | link to this | view in chronology ]

    • icon
      Sharur (profile), 26 Apr 2018 @ 10:18am

      Re: the slow steady expansion of thought-crime laws

      Not slow and steady at all: If you really want to see how bad it has been, read up on the Alien and Sedition Acts, passed by Adams, and how it was used (Yes, the 2nd President tried to gut the First Amendment).

      The issue isn't "oh no my feelings are hurt", the problem is that people stopped fighting. People stopped voting (I find it pathetic that the recent "highs" of voter turn out are still only 50%), and those who do vote overwelhmingly don't do any research on issues or candidates, they vote by the letter in parentheses(that is , party affiliation).

      reply to this | link to this | view in chronology ]

      • identicon
        Thad, 2 May 2018 @ 2:27pm

        Re: tl;dr

        People stopped voting (I find it pathetic that the recent "highs" of voter turn out are still only 50%),

        Uh, the reason the voter turnout rate is lower now than it was in 1788 isn't that fewer people are voting, Hoss.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Apr 2018 @ 1:49pm

    Uhhhh...

    Telling people to kill themselves, as well as targeted bullying for mental health disabilities, have already been expressly criminalized, and declared to fall outside the scope of 1st amendment protections. So pretty sure this is par for course, especially if they're close enough to age of majority to be charged as adults.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Apr 2018 @ 3:40pm

      Re: Uhhhh...

      I don't know which country you live in, but in the US neither of those categories of speech are explicitly (or implicitly) criminal. There have been court cases where those were part of a broader pattern of behavior which was deemed criminal, but such speech in isolation is (in fact) explicitly legal.

      reply to this | link to this | view in chronology ]

  • icon
    Ninja (profile), 25 Apr 2018 @ 2:48pm

    You know what I hate more than people bullying people with disabilities and other physical or mental issues? Perfectly healthy idiots using laws to destroy lives instead of applying reasonable punishments.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 25 Apr 2018 @ 8:33pm

      Re:

      Exactly. What these kids did was undeniably wrong, but there's no need to drag the law into it.

      There ought to be a law where, for every new law passed, the government has to repeal a law at the same time. Criminal law has already expanded far too much into everyday life, and it's only getting worse.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 25 Apr 2018 @ 8:26pm

    By that standard....

    We could prosecute....

    Every Democrat who ever said Donald Trump was an idiot.

    Every Republican who ever said Hillary Clinton was corrupt.

    Every movie fan who ever said Tommy Wiseau can't act.

    Every music fan who ever said Justin Bieber was annoying.

    Every baseball fan who ever said Alex Rodriguez was a juicer.

    Every basketball fan who ever said LeBron James was a primadonna.

    Every hockey fan who ever said Sidney Crosby was a diver.

    Every football fan who ever said Tom Brady was a cheater.

    90 percent of the time, "harassment" laws are total nonsense.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 26 Apr 2018 @ 9:20am

      Re: By that standard....

      That's the plan.

      Well, with one difference: we don't sue "our" people. We just sue "theirs".

      reply to this | link to this | view in chronology ]


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