A federal judge in Maryland recently ruled the First Amendment protects your right to defame religious leaders, to predict and wish for their violent deaths.
At least as long as you say so online, thousands of times, and to who knows how many thousands of people.
Just goes to show you what can happen when judges cloak their arguments in the rich fabric of colonial history. Sometimes their opinions end up cut from whole cloth.
There’s not a lot of constitutional case law out there on online free speech. So the experts are saying Judge Roger Titus’ ruling in U.S. v. Cassidy could have lasting impact. Titus dismissed federal charges against a man who allegedly authored thousands of blog and Twitter posts, some seemingly libelous, others perhaps threatening, and many downright disturbing, aimed mostly at Brooklyn-born Buddhist leader Alyce Zeoli.
The government had accused William Lawrence Cassidy of harassing and causing “substantial emotional distress” to Zeoli.
“While Mr. Cassidy’s speech may have inflicted substantial emotional distress,” Titus ruled, “the government’s indictment here is directed squarely at protected speech: anonymous, uncomfortable Internet speech addressing religious matters.”
I’m not exactly sure how saying someone is “in bad health, about to get worse” is protected theological discourse. And I have to wonder if Titus would have been so cavalier if the object of an obsessive online poster were a federal judge.
But Titus seems less concerned about what was said than he is enamored about where Cassidy said it.
He goes on to liken online communications to bulletin boards in the halcyon days of the early republic when the Bill of Rights was written.
“If one colonist wants to see what is on another’s bulletin board, he would need to walk over to his neighbor’s yard and look at what is posted, or hire someone else to do so,” Titus said.
I especially like the image of the hired hand here, which lends the judge’s opinion a certain air of olde-tyme colonial authenticity.
“Twitter allows the bulletin board system to function so that what is posted on Colonist No. 1’s bulletin board is automatically posted on Colonist No. 2’s bulletin board for Colonist No. 2 to see,” the judge continued. Perhaps the hired hand lost his job at that point; a lot of that went on in American history.
But the judge doesn’t say. He is more concerned with the fact that it is entirely up to the two colonists whether their bulletin boards will be interconnected, and that one is free top ignore the postings of another.
“This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed at another person,” the judge explains.
True enough, the courts have ruled that intrusive and threatening phone calls aren’t covered by the First Amendment. But it doesn’t follow that just because something is posted online, potentially to millions of people, it becomes protected speech. It is certainly no easier to ignore.
And to tell the truth, I don’t seem to remember reading about front-yard bulletin boards in American history class. But I do seem to recall something about the colonies being over by the time the Bill of Rights was ratified. So technically, those should be early republicans, not colonists, right?
But let’s not get nitpicky. What I really want to know is what Madison and Hamilton might have thought about Twitter. Or telephones or emails, for that matter.
The more honest inquiry, it seems to me, would be to ask what sort of censorship the framers feared, and what limits on speech they would tolerate.
If I had been the owner of a magic message-changing bulletin board back in 1791, I’d have been mostly worried about the whispers of witchcraft from some of my more superstitious neighbors.
But there were also laws against libel and harassment before and after the Bill of Rights, and an examination of those ideas might have shed more light than the discussion of 18th-century electronics. Did Ben Franklin’s kite have texting?
A look at other areas of First Amendment law might have helped as well. There is a large body of judicial thought on defamation, fighting words, invasion of privacy and incitement to illegal activity that might have something relevant to say.
Titus, though, glibly dismisses these unprotected categories of speech as inapplicable, except when it suits him to pretend otherwise. <p>
For example, libel law doesn’t apply here, Titus rules, ipse dixit, or without citing precedent. But that doesn’t stop him from quoting a famous 1960s libel case, Times v. Sullivan, to the effect that the First Amendment applies even to speech that includes “vehement, caustic and sometimes unpleasantly sharp attacks.”
True enough, but the speech in Sullivan was genuine public discourse aimed at important issues, not intended to harass some individual. And just because blogs are the anonymous pamphlets of the 21st century doesn’t mean they automatically enjoy the protections of the 18th-century Bill of Rights.
In the final analysis, Cassidy’s speech may indeed be protected, and the federal harassment stature may not survive constitutional scrutiny.
But please, give the case the scrutiny it deserves. The medium here isn’t the message here. The message is the message.
And it’s one that deserves more thought than one might put into the 140 characters allowed in a Twitter post.
About The AuthorMarc Charisse is the editor of The Evening Sun. Dr. Charisse has a Ph.D. in First Amendment law and history, and has taught communication law and constitutional law at the University of Washington in Seattle and Jacksonville University in Jacksonville, Fla. Charisse can be reached at firstname.lastname@example.org.
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