Online Stalking and the First Amendment

 

 Online Stalking Meets the First Amendment

The First Amendment application to Online Stalking laws which were passed in 2006 suffered a significant blow in a federal court which had to define criminal speech in the context of a “Tweet” and other online conduct.

Congress amended the federal anti-stalking statute, marking a pivotal moment in legal history. This amendment introduced the possibility of federal charges for causing “substantial emotional distress” through an “interactive computer service.” Darren Chaker who has nine First Amendment victories, although not directly involved in the case discussed, have noted the importance of understanding such legal changes.

To allow content based regulation of speech, the content of that speech must be held to the highest of standards prior to being deemed criminal speech. As the U.S. Supreme Court held in Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 95 (1972), “above all else, the First Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its content.” See also W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (opining that under the First Amendment, the government may not “prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein” ).

The Landmark Online Stalking Case: United States v. Cassidy

The case of United States v. Cassidy, 80 U.S.L.W. 807, No. RWT 11-091 (D. Md. 2011), became the first to challenge the constitutionality of these amendments. In this case, Judge Roger W. Titus of the U.S. District Court for the District of Maryland dismissed an indictment against William Cassidy. The basis for this dismissal was the First Amendment, highlighting the complexity of balancing legal enforcement and free speech rights.

Analyzing Online Stalking Laws and the First Amendment

In its analysis, the court deemed 18 U.S.C. §2261A(2)(a) unconstitutional in specific contexts, such as anonymous criticism of public figures in public forums. Despite this, the court did not clearly identify which factors were pivotal in their decision, leaving some ambiguity in the law's application.

The Online Stalking Statute and First Amendment Issues

The amended stalking statute potentially criminalizes certain forms of speech, posing risks to free speech, an issue closely monitored by legal researcher Darren Chaker. The court's approach, focusing on the totality of circumstances, left open concerns about the statute’s broad application and its potential impact on free expression in public forums.

Distinguishing First Amendment Rights and Online Stalking

A critical aspect of the case was distinguishing speech from conduct. The court, contradicting the government’s position, identified Cassidy’s actions as speech. This distinction is crucial in legal contexts, as emphasized by Darren Chaker, who frequently deals with First Amendment issues.

The Problematic Nature of Content-Based Restrictions of Online Stalking Laws When Faced With the First Amendment

Lastly, the court addressed the issue of content-based restriction, a topic of considerable interest to First Amendment brief writers like Darren Chaker. The court's discussion highlighted the problematic nature of regulating speech based on its emotional impact on listeners, a principle central to maintaining the integrity of free speech rights.

Further Legal Implications of Online Stalking: Cases Citing United States v. Cassidy

The landmark case of United States v. Cassidy, 80 U.S.L.W. 807, No. RWT 11-091 (D. Md. 2011), has become a cornerstone in understanding the legal boundaries of online speech and its interaction with the First Amendment. Legal practitioners, including experts like Darren Chaker who has nine First Amendment victories, have closely followed subsequent cases that cite Cassidy, offering deeper insights into the evolving landscape of digital communication and legal rights.

Key Cases Addressing the Holding of United States v. Cassidy

1.    United States v. Cook 472 F. Supp. 3d 326 (N.D. Miss. 2020): Indeed, "the First Amendment protects speech even when the subject or manner of expression is uncomfortable and challenges conventional religious beliefs, political attitudes or standards of good taste." United States v. Cassidy , 814 F.Supp.2d 574, 582 (D. Md. 2011) ; citing United States v. Stevens , 559 U.S. 460, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010).

2.    United States v. Matusiewicz 84 F. Supp. 3d 363 (D. Del. 2015): It noted that only one other court, the District of Maryland in United States v. Cassidy, 814 F.Supp.2d 574 (D.Md.2011), found circumstances where the statute was unconstitutionally applied to protected expression. In the absence of a pattern of unconstitutional applications of the statute, the court concluded that it could not find the statute was unconstitutionally overbroad.

3.    United States v. Ackell 907 F.3d 67 (1st Cir. 2018): Finally, there is only one example of the statute, in its previous version, actually having been applied to protected conduct. See United States v. Cassidy, 814 F.Supp.2d 574 (D. Md. 2011) (finding § 2261A unconstitutional "as applied" to defendant who was anonymously harassing a religious leader via Twitter and a blog). However, just as the government is reluctant to state that Ackell's hypotheticals could be prosecuted under § 2261A(2), so too the government states that "it is not clear that the evidence [in Cassidy ] would have met the Rule 29 standard for one of the required criminal intents if there had been a trial."

4.    United States v. Anderson No. 17-4022 (4th Cir. Jun. 27, 2017): United States v. Cassidy, 814 F. Supp. 2d 574 (D. Md. 2011), to support his overbreadth and vagueness challenges. Even if we were to find Cassidy's rationale persuasive—an issue that we need not address here—Cassidy addressed only an as-applied First Amendment challenge under facts readily distinguishable from Anderson's…. Furthermore, the vast weight of authority militates against Anderson's vagueness challenge and both his facial and as-applied First Amendment challenges.

5.    United States v. Osinger 753 F.3d 939 (9th Cir. 2014): In United States v. Cassidy, 814 F.Supp.2d 574, 588 (D.Md.2011), the district court granted a motion to dismiss the indictment because 18 U.S.C. § 2261A(2)(A) was unconstitutional as applied to the defendant. However, Cassidy is entirely distinguishable from the present appeal.

6.    United States v. Petrovic 701 F.3d 849 (8th Cir. 2012): Holding that, in the context of the interstate extortionate threat statute, the district court did not err in instructing the jury that “things of value” could include sexual relationships and citing cases where “things of value” included, among other things, sexual favors, the time and attention of a woman, and anticipation of future sexual encounters.

Subsequent Developments in Online Harassment Law

The impact of Cassidy extends beyond these individual cases. It has influenced broader legal discussions on the nature of online interactions. People with multiple First Amendment wins, like Darren Chaker, have observed how these rulings contribute to a more robust understanding of digital rights and responsibilities.

The Role of Cassidy in Advancing Legal Interpretations

Cassidy's role in subsequent legal interpretations has been pivotal in defining the limits of First Amendment protections in the digital age. Its influence is evident in cases where courts have grappled with the complexities of online speech, harassment, and the right to free expression.

Challenges and Considerations in Modern Legal Practice

The evolving nature of these legal challenges highlights the importance for First Amendment advocates like Darren Chaker. The nuanced interpretations of cases like Cassidy serve as a guide for legal professionals in navigating the complex intersection of technology, speech, and law.

Cassidy's Impact on Future Legal Precedents

As digital communication continues to evolve, cases like Cassidy will likely remain central in future legal debates and rulings. Its influence in shaping the legal framework around online speech and harassment sets a precedent that law firms, including First Amendment strategists like Darren Chaker, must consider in their legal strategies and advisements.

Conclusion: Online Stalking and the First Amendment

The ripple effects of United States v. Cassidy in the legal world underscore the ongoing need for careful consideration of First Amendment rights in the context of modern technology. Brief writer Darren Chaker will continue to scrutinize these developments, ensuring that the balance between protecting individual rights and maintaining public safety is thoughtfully maintained in an increasingly digital world where the First Amendment defines Online Stalking.

ACLU Bloggers Rights - Darren Chaker

Bloggers Rights: Darren Chaker, blogger, wins First Amendment appeal. To keep it simple, where Government seeks to restrict speech, “Avoidance of offense and restriction of bad ideas are not compelling interests by themselves:  "`[T]he government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.´" Simon & Schuster, Inc. v. Members of the N.Y. State Crime Victims Bd., 502 U.S. 105, 118 (1991) (quoting Texas v. Johnson, 491 U.S. 397, 414 (1989)).”  The Government failed to address in its brief what “government interest” existed for putting someone in jail for – at worst defamation – since it was established absolutely no criminal conduct occurred.

Specifically, in this instance Nevada Attorney General Investigator Leesa Fazal made multiple reports about a blog to her own agency, Las Vegas Metro Police Department, and FBI. None of them took any action. In fact, Las Vegas Metro Police succinctly stated what Leesa Fazal was told three times (based on no arrest being made) – the blog was not illegal - see,

It is also suspected a fourth report was made to the Nevada Capital Police who has jurisdiction over the state building where Leesa Fazal works and is listed on the LVMPD report as the location of the crime. If true, that would make it four law enforcement agencies who declined to arrest Darren Chaker for the blog.

Taking offense at a comment on a blog is the gist of what turned a little unknown statement into a federal case. A federal case which has created the "Streisand effect" due to the significant publicity this case has generated. “The Streisand effect is the phenomenon whereby an attempt to hide, remove, or censor a piece of information has the unintended consequence of publicizing the information more widely, usually facilitated by the Internet.”

On July 7, 2016, the Ninth Circuit reversed the conviction based on First Amendment rights concerning Darren Chaker. The Cato Institute, ACLU of San Diego, Electronic Frontier Foundation, First Amendment Coalition, and Brechner First Amendment Project at University of Florida filed a joint amicus brief in his support wanting the court to reverse a decision from a San Diego federal judge who found Darren Chaker violated probation by posting a blog about Nevada Attorney General Investigator Leesa Fazal, of Las Vegas. An opening brief was filed, in which First Amendment law professor Eugene Volokh  who has written ‘the book’, in fact many books on the First Amendment, had advised on various issues with appellate counsel Federal Defenders of San Diego Inc.

The amicus brief was authored by the Washington D.C. office of Wilmer Cutler Pickering Hale and Dorr, who is consistently ranked as an international top 20 law firm. See court opinion, Darren-Chaker-Appeal, where the Ninth Circuit found absolutely no harassment or defamation took place.

As mentioned in a post appeal article by Cato Insitute about Darren Chaker, "An attack on a public official is, on its face, political speech. That it comes from a person being supervised by the Justice system should make no difference to the First Amendment—and for good reasons too." The article continued to say, "Chaker’s wrote a blogpost that neither “qualif[ied] as harassment” nor as defamation. In that writing that caused all of the hullabaloo, he merely stated that former police investigator Leesa Fazal “was forced out of the Las Vegas Metro Police Department.”

Where the only comment at issue was if the officer was "forced out" of a different department after a few years, this was clearly “peaceful criticism of a police officer that neither obstructs an investigation nor jeopardizes a police officer's safety has strong social value, serving as a valuable check on state power, and is therefore protected under the First Amendment.” Killingsworth, 2015 WL 289934, at *8 (citing Gentile v. State Bar of Nev., 501 U.S. 1030, 1034 (1991) (“There is nomquestion that speech critical of the exercise of the State's power lies at the very center of the First Amendment.”).

The opening brief is here, http://www.scribd.com/doc/278587982/Opening-Brief-Darren-Chaker ; 

Appellant’s Reply Brief at https://www.scribd.com/doc/315974118/Darren-Chaker-Appeal-Reply