Darren Chaker: Leading the Way in Privacy and First Amendment Law

February 14, 2025

Viewpoint Discrimination by Darren Chaker

Darren Chaker Explores First Amendment Proscribable Speech Viewpoint Discrimination.

CyberStalking First Amendment Challenges – 6 Key Cases

Judge Titus recognized the public forum issue of posting comments online: “One does 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."
CyberStalking, First Amendment Implications.

CyberStalking, speech, First Amendment protection.

 
When a Stalker Comes Knocking, is it CyberStalking or Protected Speech?

Addressing CyberStalking in the Digital Era In today's digitally-driven world, where the internet plays a pivotal role in daily communication, the issue of online harassment has emerged as a critical legal and social concern. This article delves into the complexities surrounding online harassment, particularly focusing on legal responses and the evolving nature of internet communication.

Key Cases to Embrace Since it is Only Speech Outside of the Categories Which Do Not Enjoy Protection Such as CyberStalking

Each of these Supreme Court cases has had a significant impact on the interpretation and application of the First Amendment in specific contexts:

1. Obscenity - Roth v. United States, 354 U.S. 476: In Roth v. United States, the Supreme Court addressed obscenity and its relation to the First Amendment. The Court held that obscene materials are not protected by the First Amendment. However, it also established the "variable obscenity" standard, allowing for community standards to determine what is considered obscene. This decision clarified that while the First Amendment protects many forms of expression, it does not protect obscenity as defined by contemporary community standards to be deemed proscribable speech.

2. Defamation - Beauharnais v. Illinois, 343 U.S. 250, 254-255 (1952): Beauharnais v. Illinois focused on defamation, a form of speech that can harm an individual's reputation. The Court ruled that libelous and defamatory statements are not protected by the First Amendment. This decision reinforced the principle that false statements of fact that harm someone's reputation can be subject to legal action, striking a balance between free speech and protecting individuals from false accusations.

3. Fraud - Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748 (1976): In Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., the Court dealt with commercial speech and fraud. The decision clarified that commercial speech is entitled to First Amendment protection, but false or misleading commercial speech that constitutes fraud is not protected. This case underscored the importance of ensuring truthfulness and accuracy in commercial communications while respecting the First Amendment.

4. Incitement - Brandenburg v. Ohio, 395 U.S. 444, 447-49 (1969): Brandenburg v. Ohio set a crucial precedent regarding incitement. The Court ruled that speech can only be restricted if it incites imminent lawless action and is likely to do so. This decision established a high threshold for limiting speech based on incitement, protecting a wide range of political and social expression while allowing for restrictions on speech that poses a genuine threat of immediate harm.

5. True Threats - Watts v. United States, 394 U.S. 705 (1969): Watts v. United States clarified the boundaries of true threats. The Court held that to constitute a true threat, the statement must be a genuine and serious expression of intent to harm or kill. This decision reinforced that the First Amendment protects political hyperbole and strong rhetoric, distinguishing them from true threats that may be subject to legal action.

6. Speech Integral to Criminal Conduct - Giboney v. Empire Storage & Ice Co., 336 U.S. 490, 498 (1949): Giboney v. Empire Storage & Ice Co. dealt with speech that is integral to criminal conduct, specifically labor union picketing. The Court held that speech that is an integral part of unlawful conduct can be restricted. This decision reaffirmed that while the First Amendment protects expression, it does not shield speech that is directly linked to illegal activities.

Additional First Amendment Cases When Determining CyberStalking

  • Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 55 (1988), emphasizing the Supreme Court’s “longstanding refusal to allow damages to be awarded because the speech in question may have an adverse emotional impact”. Thus, this removes the "hype" effect of a distraught person crying to invoke a reaction from law enforcement.
  • NAACP v. Claiborne Hardware Co., 458 U.S. 886, 910 (1982), the Supreme Court stated “Speech does not lose its protected character . . . simply because it may embarrass others or coerce them into action.”. Hence, because a request does not then create an exception to speech by rendering it extortionate merely due to the fact some form of action upon the recipient was made.
  • New York Times v. Sullivan, 376 U.S. 254, 270 (1964), is another US Supreme Court case where the court stated,“[D]ebate Courts have struck down online harassment statutes with similar words as facially unconstitutional. Bishop, 787 S.E.2d at 821 (striking down a ban on posting a minor’s private sexual information on the Internet with intent “to intimidate or torment”). Again, because speech is makes the recipient uneasy, frightened, or intimidated, the context of the speech at issue must be looked at prior to kicking it out of the First Amendment's protective umbrella.

The rise of the internet has ushered in a new era of communication, one that transcends traditional boundaries and offers unprecedented opportunities for interaction. However, this evolution has also paved the way for new forms of harassment. In the United States, legal measures against online harassment are still in their nascent stages, but significant strides have been made to address this growing issue.

Understanding the Scope and Impact of CyberStalking

CyberStalking encompasses a broad range of behaviors, including cyberbullying, stalking, and the dissemination of private information. Unlike physical harassment, its digital nature allows perpetrators to hide behind the cloak of anonymity, making it challenging for victims to seek justice. The impact of online harassment is profound, affecting the mental and emotional well-being of individuals, and in severe cases, leading to tragic outcomes.

CyberStalking Case Studies:

Legal Precedents in CyberStalking Several high-profile legal cases have set important precedents in the fight against online harassment. These cases highlight the legal system's efforts to adapt to the challenges posed by digital communication platforms. They also illustrate the complexities involved in distinguishing between free speech and harmful, targeted harassment.

Protecting Online Speech - United States v. Cassidy: In the case of United States v. Cassidy, 80 U.S.L.W. 807, No. RWT 11-091 (D. Md. 2011), a federal judge in Maryland examined the intersection of the First Amendment and cyberstalking. In Cassidy the court held that 18 U.S.C. §2261A(2)(a) was unconstitutional as applied to (a) postings of anonymous criticism; (b) of a public figure; (c) on matters of public concern; (d) in a public forum; (e) that the putative victim was free to avoid.The judge ruled that the First Amendment safeguards an online speaker who made derogatory comments about a religious leader through Twitter. This case challenged the constitutionality of an amendment to the federal anti-stalking statute, enacted in 2006, which broadened its scope to encompass causing "substantial emotional distress" through online interactions.

Narrow, As-Applied Ruling: Judge Roger W. Titus of the U.S. District Court for the District of Maryland dismissed an indictment against William Cassidy under the amended statute on First Amendment grounds. However, the ruling was framed as a narrow, as-applied decision, which limited its impact on free speech rights.

Factors Leading to Unconstitutionality: The court found that certain factors rendered the statute unconstitutional as applied to Cassidy. These factors included the use of anonymous criticism, targeting a public figure, addressing matters of public concern, taking place in a public forum, and providing the putative victim with the option to avoid the speech.

Cassidy Also Challenged the "Emotional Distress" Standard: The amended stalking statute raised concerns as it criminalized statements causing "emotional distress" without further specification. Judge Titus's ruling highlighted the issue of this standard, especially in public forums, where individuals may encounter offensive content. Although there was a strong argument to strike down the amendments on their face, the ruling applied a more circumscribed approach. Judge Titus recognized the public forum issue of posting comments online: “One does 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."

Court Finds Washington State's CyberStalking is Overbroad, Thus Unconstitutional: Judge Leighton's ruling expands freedom of expression by striking down an overly broad state criminal cyberstalking statute. The statute's failure to define the boundaries of speech that could embarrass or harass led to the criminalization of speech that, although repetitive or anonymous, was neither obscene nor threatening.

This decision upholds well-established First Amendment protections, particularly for speech deemed "outrageous" or "emotionally distressing," especially when related to matters of political, religious, or public concern. The judge stated, “in public debate our own citizens must tolerate insulting, and even outrageous, speech in order to provide ‘adequate breathing space’ to the freedoms protected by the First Amendment.” See Boos v. Barry, 485 U.S. 312, 322, (1988).

Federal Judge Finds CyberStalking Washington Statute Unconstitutional: In a different case in Washington State, a federal court invalidated a cyberstalking statute on First Amendment grounds. The court found that the statute was overbroad and criminalized protected speech by targeting communications with the intent to harass, intimidate, torment, or embarrass others, whether conducted anonymously or repeatedly.

Strategies for Prevention and Response to CyberStalking:

Preventing and responding to online harassment requires a multi-faceted approach. This includes promoting awareness and education about the nature of online harassment, implementing robust reporting cyberstalking on digital platforms, and fostering a culture of respect and empathy in online interactions. Legal remedies, while crucial, must be complemented by respect for the First Amendment.

The Role of Digital Platforms in Mitigating CyberStalking

Digital platforms, where much of this harassment occurs, have a significant responsibility in mitigating these behaviors. The development and enforcement of clear community guidelines, the implementation of effective reporting systems, and cooperation with legal authorities are essential steps in creating a safer online environment.

The Future of Online Harassment Legislation

Looking ahead, the legal landscape concerning cyberstalking is likely to evolve further. As digital communication continues to advance, so must the legal frameworks designed to protect individuals from harassment. This will require ongoing dialogue among lawmakers, technology companies, legal experts, and civil society to ensure that laws remain relevant and effective in the face of rapidly changing digital communication technologies. Addressing online harassment in the digital age is a complex yet crucial endeavor. It requires a balanced approach that respects the principles of free speech while protecting individuals from harmful and unwarranted attacks. As we navigate this digital era, it is imperative that legal frameworks, societal norms, and digital platform policies evolve in tandem to create a safe and respectful online environment for all.

Combatting Cyberstalking

A Comprehensive Approach to Online Harassment in the Digital Age The internet, a global communication revolution, has unfortunately also become a fertile ground for cyberstalking and online harassment. This article explores the multifaceted issue of cyberstalking, focusing on legal, social, and technological responses to this growing threat.

First Amendment Implications Defining Cyberstalking

Cyberstalking, a form of online harassment, poses unique challenges to the legal system. It involves persistent and unwanted contact, intimidation, or surveillance conducted via digital means. As technology evolves, so does the nature of cyberstalking, necessitating a dynamic and robust legal response. In the United States, while laws targeting cyberstalking are developing, they often struggle to keep pace with the rapid advancement of online platforms.

Defenses to CyberStalking

First Amendment brief writer Darren Chaker believes the best defense to CyberStalking is being educated about the parameters in which speech is protected. Once a person exceeds the protection of the First Amendment, then arrest and prosecution is likely imminent since the positions of law enforcement in this area is about being proactive. Remember, First Amendment is on your side.

“The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter.”

Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244 (2002))

Of course, one of many cases where people who were arrested ultimately had their conviction reversed include United States v. Curley. 639 F.3d 50 (2d Cir. 2011) (vacating interstate stalking conviction based on evidentiary errors); United States v. Casite, 2011 WL 1755701 (E.D. Pa. 2011) (unpublished) (involving threats to intimidate and interstate travel); United States v. Infante,_ F. Supp. 2d _, 2010 WL 1268140 (involving interstate travel, but dismissed for lack of probable cause of harassment).

Yet, to the road to get that conviction reversed is a long one and going back to being educated about the First Amendment is core to prevent charges being brought. Thankfully, a case decided since this post was originally posted has taken much of the drama and hype out of making claims of stalking to police.

However, some continue to create the hype with Headlines like "The Supreme Court Just Legalized Stalking" which mirrors many alleged victims of stalking create when police are contacted. What Counterman v. Colorado , 600 U.S. _ (2023), did achieve is clarity as to employing a reckless standard. Female Supreme Court Justice Elena Kagan who authored the opinion found prior to a person being convicted for speech to convert it to unprotected criminal speech, "the First Amendment still requires proof that the defendant had some subjective understanding of the threatening nature of his statements." Hence, the Supreme Court did not legalize stalking but merely further defined the mental state to prosecute speech. See Darren Chaker's article on Counterman v. Colorado.

Understanding Cyberstalking and Its Impact

Cyberstalking encompasses various actions, including persistent messaging, sharing of personal information, and digital surveillance. This form of harassment can have a devastating impact on victims, leading to psychological trauma, fear for personal safety, and in extreme cases, physical harm. The anonymity afforded by the internet can embolden cyberstalkers, making it imperative to understand and address this issue comprehensively.

Strategies for Cyberstalking Prevention and Response

Preventing cyberstalking involves a combination of legal, educational, and technological approaches. Public awareness campaigns, clear policies on digital platforms, and support systems for victims are essential. Moreover, fostering a culture of respect and digital citizenship can play a crucial role in mitigating cyberstalking behaviors.

The Crucial Role of Digital Platforms in Addressing Cyberstalking

Social media and other digital platforms are often the arenas where cyberstalking occurs. These platforms must take proactive steps in creating safer online spaces, including enforcing community guidelines, enhancing user privacy settings, and facilitating easier reporting mechanisms for harassment.

Future Directions in Cyberstalking Legislation

As the digital landscape continues to evolve, so must the legal frameworks that govern cyberstalking. This evolution will require ongoing adaptation and collaboration among lawmakers, technology experts, and advocacy groups to ensure that legal measures remain effective and relevant. Tackling the issue of cyberstalking in the internet age requires a comprehensive and multifaceted approach. By combining legal action, technological solutions, and societal efforts, we can work towards a digital environment where communication is free but respectful, and where individuals are protected from the dangers of cyberstalking and online harassment.

Conclusion

It is the author's desire to convey useful information to help those understand what the law may allow as protected speech and resources if a true violation of the law is determined.

error: Content is protected !!