I blogged about this in August, but now there’s a District Court decision dismissing the indictment, United States v. Cassidy (D. Md. Dec. 15, 2011), and it strikes me as generally quite correct. Here is a rough summary of what seem to be the facts, from the original post:
William Lawrence Cassidy is charged with violating the federal antistalking statute, 18 U.S.C. § 2261A by “with the intent to harass and cause substantial emotional distress to a person ... us[ing] an interactive computer service ... to engage in a course of conduct that caused emotional distress to that person, to wit: the posting of messages on www.twitter.com and other Internet websites concerning [Alyce Zeoli].” (For details about Cassidy’s tweets and post, see the criminal complaint.)
Here’s the backstory:
Born in Canarsie, Brooklyn, Ms. Zeoli is considered to be a reincarnated master in the Tibetan Buddhist religious tradition, and is known to her followers as Jetsunma Ahkon Lhamo. She is an avid Twitter user, with 23,000 followers. A representative for Ms. Zeoli said she declined to be interviewed for this article.
According to the F.B.I. and Ms. Zeoli’s lawyer, Mr. Cassidy also claimed to be a reincarnated Buddhist when he joined Ms. Zeoli’s organization, Kunzang Palyul Choling, in 2007. He signed up using a false name and claimed to have had lung cancer, they said. Ms. Zeoli’s organization cared for him and, briefly, even appointed him to its executive team [as Chief Operating Officer]. The relationship soured after they came to doubt his reincarnation credentials and found that his claims of cancer were false. Mr. Cassidy left.
After Cassidy left, he started saying insulting things about Zeoli online, ultimately with over 8000 tweets over the span of several months. A few could be seen as potentially threatening, e.g., “ya like haiku? Here’s one for ya: ‘Long, Limb, Sharp Saw, Hard Drop’ ROFLMAO.” But the complaint isn’t limited to those, or even mostly focused on them; it also includes statemento like, “[Zeoli] is a demonic force who tries to destroy Buddhism,” “[Zeoli]: somebody throw a couple shots of gin in the bitch & get her back on twitter: shes fun 2 play with,” and “[Zeoli] is no dakini: shes a grossly overweight 61 yer old burnt out freak with bad bowels & a lousy outlook: her ‘crown’ is a joke.” And the statute under which Cassidy is prosecuted is by no means limited to threats — the relevant provisions generally ban
engag[ing] in a course of conduct [using the mail or interactive computer services] that causes substantial emotional distress to [a] person” “with the intent to ... harass ... or cause substantial emotional distress to [that] person.”
And here’s a brief summary of the court decision:
1. The judge rightly concludes that “the only portion of Section 2261A(2)(A) mentioned in the Indictment amounts to a content-based restriction” on speech, “because it limits speech on the basis of whether that speech is emotionally distressing.”
2. The judge rightly suggests that statements made about a person to the public at large are constitutionally protected even if, when said to a particular person on a one-to-one basis (as through a telephone call or an individually targeted e-mail), they might be punishable.
3. The judge concludes that, even if — assuming for the sake of argument — the statute were constitutional in some situations as to statements made to the public at large, it would not be constitutional as applied to “individuals engaging in political debates or critiques of religious leaders.” That too strikes me as correct. I don’t think the statute would be constitutional as to speech to the public even outside political and religious debates, at least when the speech isn’t a threat or libel or otherwise unprotected under the existing First Amendment protections (and the judge doesn’t hold that the statute would be constitutional in such cases). But I do think that the statute certainly is unconstitutional as to such speech to the public when it relates to political and religious questions, as it does here.
4. The judge concludes that he need not decide whether the statute is unconstitutional on its face, because the defendant wins on the grounds that the statute is unconstitutional as applied.
So this strikes me as a substantial victory for free speech; I do not know whether the government will appeal. For more, see this New York Times article by Somini Sengupta.