from the discourse-demands-it dept
The storm has passed and the charges have been dropped. But the fact that someone who tweeted about police behavior, and, worse, people who retweeted that tweet, were ever charged over it is an outrage, and to make sure that it never happens again, we need to talk about it. Because it stands as a cautionary tale about why First Amendment protections are so important ? and, as we’ll explain here, why Section 230 is as well.
To recap, protester Kevin Alfaro became upset by a police officer’s behavior at a recent Black Lives Matter protest in Nutley, NJ. The officer had obscured his identifying information, so Alfaro tweeted a photo asking if anyone could identify the officer “to hold him accountable.”
Several people, including Georgana Szisak, retweeted that tweet. The next thing they knew, Alfaro, Sziszak, and several other retweeters found themselves on the receiving end of a felony summons pressing charges of “cyber harassment” of the police officer.
As we’ve already pointed out, the charges were as pointless as they were spurious, because they themselves directly did the unmasking of the officer’s identity, which the charges maintained was somehow a crime to ask for. Over at the Volokh Conspiracy, Eugene Volokh took further issue with the prosecution, and in particular its application of the New Jersey cyber harassment statute against the tweet. Particularly in light of an earlier case, State v. Carroll (N.J. Super. Ct. App. Div. 2018), he took a dim view:
N.J. Stat. 2C:33-4.1a(2), under which Sziszak is charged, provides, in relevant part,
A person commits the crime of cyber-harassment if, while making a communication in an online capacity via any electronic device or through a social networking site and with the purpose to harass another, the person ? knowingly sends, posts, comments, requests, suggests, or proposes any lewd, indecent, or obscene material to or about a person with the intent to emotionally harm a reasonable person or place a reasonable person in fear of physical or emotional harm to his person.
According to the criminal complaint, the government’s theory is that the post “caus[ed] Det. Sandomenico to fear that harm will come to himself, family and property.”
But the Tweet (and the retweet) aren’t “lewd, indecent, or obscene.” … [And] if the “lewd, indecent, or obscene” element isn’t satisfied, N.J.S.A. 2C:33-4.1(a)(2) doesn’t apply regardless of whether it was posted with the intent to “caus[e] Det. Sandomenico to fear that harm will come to himself, family and property.”
These “cyber harassment” statutes are often problematic, targeting for punishment what should be protected and often socially valuable critical speech. Cases like these, where they get applied to criticism of state power, highlight the Constitutional concern. Being able to speak out against the state is at the heart of why we have the First Amendment, and laws interfering with that ability offend the Constitution. In this case, even if the New Jersey law had been drafted in a sufficiently narrow way to not be unconstitutional on its face by ? in theory ? only targeting speech beyond the protection of the First Amendment, applying it in this way to speech that should have been protected made it unconstitutional.
But while it’s bad enough that the original tweeter had been targeted by the police for his speech, the aspect of the story that is most worrying is that police also targeted for prosecution people who had simply retweeted the original tweet. Section 230 should have barred such prosecutions. And before we so casually chuck out the statute, as so many propose, we need to understand why it should have applied here, and why it is so important to make sure that it still can in the future.
The First Amendment and Section 230 both exist to foster discourse. Discourse is more than just speech; it’s the exchange of ideas. The First Amendment protects their expression, and Section 230 their distribution. Especially online, where speaking requires the facilitation of others, we need both: the First Amendment to make it possible to speak, and Section 230 to make it possible to be heard.
This case illustrates why it is so important to have both, and why Section 230 applies, and must apply, to more than just big companies. Here, someone tweeted protected speech to notify the community of concerning police behavior. Section 230 ensured that the Internet platform ? in this case, Twitter ? could exist to facilitate that speech. And it’s good that Section 230 meant that Twitter could be available to play that role. But Alfaro only had 900 followers; Twitter helped him speak, but it was the retweeters who turned that speech into discourse by helping it reach the community. They had just as important a role to play in facilitating his speech as Twitter did, if not even more so.
It’s important to remember that the statutory text of Section 230 in no way limits its protection to big Internet companies, or even to companies at all. It simply differentiates between whoever created the expression at issue (and can thus be held to answer for it) and who facilitated its distribution online (who therefore can’t be). Given how important that facilitation role is in having meaningful public discourse, we need to ensure that everyone who performs it is protected. In fact, it may be even more important to ensure that individual facilitators can maintain this protection than the larger and more resourced corporate platforms who can better weather legal challenges.
Think about it: think about how many of us share content online. Many of us may even share far more content created by others than we create ourselves. But all that sharing would grind to a halt, if we could be held liable for anything allegedly wrong with that content. Not just civilly, but, as this case shows, even criminally.
And that chilling is not a good thing. One could certainly argue that people should take more care when they share content online and do the best they can in vetting it before sharing it, to the extent it is possible. Of course, it could also be fairly said that many people should use their right to free speech more productively than they necessarily do. But the reason we protect speech, even low-value speech, is because we need to make sure that the good, socially beneficial speech we depend on to keep our democracy healthy can still get expressed too. Which is also why we have Section 230: it is not possible to police all the third-party created content we intermediate, and if we want to make sure that the good, socially beneficial content can get through, to reach the people who need to hear it, then we need to make sure that we don’t have to. When we snip away at Section 230’s protection, or limit its application, we obstruct that spread and curtail the discourse society needs. We therefore do so at our peril.
Obviously in this case Section 230 did not prevent the attempted prosecution. Nor did the First Amendment, and that the police went after anyone over the tweet was an unacceptable abuse of authority that imposed an enormous cost. Discourse was damaged, and the targeted Twitter users may now think twice before engaging in online discourse at all, much less discourse intending to keep state power in check. These are costs that we, as a society, cannot afford to bear.
But at least by having both of these defenses available, the terrible toll this attempted prosecution took was soon abated. Think about how much worse it would have been had they not been. And ask why that is a future we should be continuing to spend any effort trying to invite. Our sole policy goal should be to enhance our speech protections, to impose costs on those who would undermine public discourse through their attempts at abusive process. The last thing we should be doing is taking steps to whittle away at them and make it any easier to chill discourse than it already is, and cases like this one, where people were trying to speak out against abuses of power, illustrate why.