Posted On: December 20, 2011 by Mark A. Eskenazi

Free Speech: Twitter Twits

US District Court for the District of Maryland: US v. Cassidy

Just how much First Amendment protection do Bloggers and Tweeters get? Apparently as much as Colonists got when they posted announcements on public bulletin boards. Which, all things considered, is probably the right result since, as the court notes, “A Blog is like a bulletin board, except that is erected in cyberspace rather than in one’s front yard,” and Twitter is likewise a kind of bulletin board, only one which sends the posting from one Colonist’s bulletin board to another, if the other wants to receive it (Twitter subscribers have the ability to restrict certain Tweets or Tweeters).

Newman (from Seinfeld) put it this way: “When you control the mail, you control information.” The courts generally embrace the Newman postulate in these terms: When you control content (with limited exceptions), you unlawfully control public discourse and violate the First Amendment. Either way, controlling content or information is, in most cases, unacceptable in a free society.

Back to bulletin boards and Mr. Cassidy: Cassidy was indicted under the federal stalking statute for Blogging, Tweeting and DM’ing (direct messaging) with “intent to harass and cause substantial emotional distress to a person in another state.” His target, Alyce Zeoli (or A.Z.), was the Supreme Head of a Buddhist Sect known as KPC. Cassidy and A.Z. had some brief history, both personal and professional, which did not end well. From that point on, Cassidy used cyberspace to launch a crusade against A.Z. which she and the FBI thought ran afoul of the federal stalking statute.

Not as applied to this case, says the court. And the nature of the electronic communication is significant:

Whether couched in terms of the Internet or Colonial bulletin boards, there is one consistent aspect of both eras. One doe not have to walk over and look at another person’s bulletin board; nor does one Blog or Twitter user have to see what is posted on another person’s Blog or Twitter account. This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed to another person, and that difference...is fundamental to the First Amendment analysis in this case.

The decision chronicles a handful of the offensive, weird and questionable Tweets and Blogs of Mr. Cassidy. But because these communiqués could be ignored or restricted, A.Z. could not rightly claim that she was being harassed. The Tweets and Blogs, insulting and even outrageous, did not fall into the category of unprotected speech (obscenity, fraud, true threats, incitement, or speech integral to criminal conduct). Moreover, A.Z. is a well-known religious figure who was the subject of a critical non-fiction book called The Buddha from Brooklyn, and “although in bad taste, Mr. Cassidy’s Tweets and Blog posts about A.Z. challenge her character and qualifications as a religious leader.” Fair game in a free society. As such, the restrictions attempted in this criminal matter would have to survive strict scrutiny.

They did not.

According to the court, that portion of the stalking statue relied on to indict Cassidy for harassment “amounts to a content-based restriction because it limits speech on the basis of whether that speech is emotionally distressing to A.Z.” The court went on to say that “A.Z. had the ability to protect her ‘own sensibilities simply by averting’ her eyes from the Defendant’s Blog and not looking at, or blocking his Tweets.”

The statute was unconstitutional as applied and the indictment was dismissed.

Free speech can be uplifting, inspiring and profound, but in the free-for-all where we live, it also means protection for the vulgar, insensitive and crude. We get to choose who to follow and who to ignore, not the government.

The alternative is unthinkable—nay, unspeakable.

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