One of the very few pleasant things about being an attorney is that even some of the most boring cases have wacky backstories. This post is about one of the wackiest–though the issues raised illustrate certain constitutional concerns with a very short section in the very long Violence Against Women Reauthorization Act, which just passed the House yesterday over ACLU opposition.
In February of last year, a federal judge in Maryland issued a criminal complaint against one William Lawrence Cassidy. Mr. Cassidy, it seems, had allegedly infiltrated a Maryland area Buddhist community by claiming to be a “tulku,” a high-ranking Buddhist religious figure who, unlike lay Buddhists and the lesser-ranked “lamas,” gets to choose the form of his reincarnation. Through this alleged ruse, Mr. Cassidy attempted to gain the trust of Jetsunna Ahkon Lhamo (born Alyce Louise Zeoli), the first Western woman to legitimately be enthroned as a tulku.
According to the complaint, members of the community started to doubt Mr. Cassidy’s claims, and he was eventually confronted and forced to leave. Subsequently, he started to blog and tweet about Zeoli. His blog entries and tweets were, to put it charitably, crude, in poor taste and some could be construed as attempts to intimidate Zeoli.
Here’s where the wacky backstory segues into some serious First Amendment territory. A federal complaint charged Cassidy with violating U.S. “cyber-stalking” law, which makes it a crime to (1) travel across state lines to put a person in “reasonable fear” of death or bodily injury or to cause “substantial emotional distress”; or (2) to engage in conduct that creates a “reasonable fear” of harm or “substantial emotional distress” using the mail, any interactive computer service or any facility of interstate commerce. Importantly, the complaint did not allege that Mr. Cassidy made physical threats directed at Ms. Zeoli. Rather, the charge was that Mr. Cassidy’s tweets and blogging caused Ms. Zeoli “substantial emotional distress.”
The federal district court in Maryland dismissed the indictment. Key to the decision was the fact that Cassidy used Twitter and blogs to communicate his alleged threats. These services, the judge found, were similar to a physical bulletin board, where any threat posted thereon can just be ignored by the intended recipient. On Twitter, Zeoli could simply refuse to follow Cassidy or block any tweets as spam. For the blog, she would have had to affirmatively navigate her browser to the post in order just to see the threatening communication. Accordingly, Cassidy’s comments could not be considered “true threats,” subject to lesser First Amendment protection than other public statements.
Additionally, while some of Cassidy’s tweets could be construed as threatening (“want it all to be over soon sweetie?”), most were critical of Zeoli as a religious leader (“[Zeoli] is a demonic force who tries to destroy Buddhism”), or were simply derogatory and juvenile (“what do you expect from the unwanted daughter of a weekend prostitute?”). Consequently, the judge found that most of the alleged stalking involved speech subject to full First Amendment protection.
Now, while the ACLU is the first to acknowledge that “interactive computer services” can be used to transmit “true threats,” which themselves can chill the exercise of constitutional freedoms, the statute used to prosecute Mr. Cassidy cuts far too broad a swath through protected speech. If there is one central principle behind the First Amendment, it’s that speech cannot be criminalized by the government because the government disagrees with the message being communicated. There are only very narrow exceptions to this (one of which is the “true threat,” which we would argue requires a communication directed at a recipient, with the subjective intent to threaten, and that does, indeed, put the recipient in reasonable fear of harm).
Unfortunately, Congress, as part of the Violence Against Women Reauthorization Act, wants to dramatically expand the scope of the cyber-stalking law. Both the Senate and the House versions of the reauthorization legislation contain a cyber-stalking expansion. The ACLU took a position in opposition to the overall House GOP version of the bill due to issues unrelated to the cyber-stalking provision. Notwithstanding our opposition to the overall bill, we found the cyber-stalking provision in the House bill to be a significant improvement over the bipartisan language in the Senate version.
Perhaps most notably, the Senate expansion would cover communications that are “reasonably expected” to cause substantial emotional distress. Both “substantial emotional distress” (actually a civil tort standard) and “reasonably expected” are undefined. As a result, the crime could cover totally private speech that is never even heard by a third party, let alone the person being threatened or intimidated.
The Senate bill would also expand the types of electronic systems that would trigger the crime, presumably to ensure that things like Twitter and Facebook are covered as well. As the court in Cassidy noted, this is likewise unconstitutional because the intended recipient can choose simply to “avert her eyes” from the perceived threat. Twitter is an opt-in service, unlike email or the telephone.
There are already numerous laws on the books, including federal crimes, that criminalize threatening speech. But, even the most heinous and offensive speech is protected by the First Amendment if it falls short of a “true threat.” We protect this kind of speech in order to ensure that we all continue to enjoy the freedom to speak freely. The Cassidy case illustrates this truth, and the imprudence of the cyber-stalking expansion in VAWA. We very much hope to continue to work with members of Congress to address these significant constitutional concerns.