Is the First Amendment in Digital Decline?

Slippery Slope

In this case, Mr. X made threats of gross physical assault against Bachmann. From the various reprints of Mr. X's tweets, it is obvious he lacks any sense of decency or decorum, and as disgusting as his threat was to Bachmann, it's also clear that Mr. X had a longstanding pattern of obscene and offensive tweeting ' tweeting that Lamberth found completely lacking in humor. In what may be the best review comedian Andrew Dice Clay ever received, Lamberth wrote that Mr. X's “oeuvre represents an infantile attempt at humor that brings to mind the most obscene aspects of Andrew Dice Clay, but without even the infinitesimal modicum of artistic creativity that Mr. Clay manages to possess.”

Suffice to say, Mr. X had no fans in his corner.

But once the crudity and malicious nature of Mr. X is dismissed, the case illustrates what some may believe is a very slippery slope between the First Amendment in a digital world and a prosecutor's right to collect evidence in the investigation of an alleged crime.

Mr. X had a variety of defenses in addition to his general First Amendment rights. He argued, for example, that the overall nature of his tweets revealed someone who really didn't intend to carry out any of his threats. It's as if Mr. X felt he should be judged by the totality of his work, however pathetic it might be. Or, as Lamberth characterized it: “Would a reasonable person view the statement as expressing a serious intent to cause harm?” Mr. X concluded his argument by also insisting that the grand jury did not need to know his real name to determine the credibility of his threat. Mr. X felt his identity should remain unknown until an indictment was issued. A threat by any other name is still a threat?

Political Speech and Anonymity

Lamberth, in rejecting Mr. X's theories, noted that anonymous threats on the Internet pose unique problems. In effect, it can be argued that the court's holding shifts the focus of culpability from the intent or credible nature of the speaker to the possible reaction of the target. While Lamberth would probably deny such a shift, he does note that with anonymity, a target has no way of knowing whether the speaker is capable of carrying out his or her threat or not. While the court rejected the argument that such a flipped approach creates a slippery slope in regards to First Amendment rights, it is clear that the holding, whether it's on thin ice or not, is a serious indictment of anonymity on the Internet.

This is particularly true in light of the court's dicta that it had “grave doubts about the likelihood of a grand jury returning an indictment,” pointing out that a real threat requires a “serious expression of intent to commit an act of unlawful violence to a particular individual '.” Citing Virginia v. Black, 538 U.S. 343, 359 (2003), http://bit.ly/GdeRmM. Adding the complication of whether Mr. X's tweets were political speech only makes the holding even more slippery. After all, prior cases over overt threats to political figures have been rejected as constituting criminal behavior, however offensive they might be. The court noted a number of cases where the threat was deemed “political hyperbole” and not criminal behavior, e.g., Watts v. United States, 394 U.S. 705 (1969), http://bit.ly/GDf3Cv ' speech by a Vietnam War protester that, if drafted, he would get a rifle and “the first man I want to get in my sights is L.B.J.”; and United States v. Bagdasarian, 652 F.3d at 1113, 1124 (9th Cir., 2011, http://bit.ly/Gdfehl) ' a defendant's anonymous post, “Re: Obama. ' , he will have a 50 cal in the head soon.”

Nonetheless, in today's violent world and with the instances of actual violence against political figures, one can understand the court's decision to give broad discretion to prosecutors under their mandate to investigate and determine if someone is, indeed, a threat. This is particularly understandable in the case of presidents or those who aspire to be president.

But the holding is not limited to threats against politicians. Indeed, does it mean anonymity must be lost if a prosecutor has merely a suspicion of intent? The court admits that its decision may “produce absurd results” and allow the government to “subpoena any website any time any anonymous user made any post containing a mere scintilla of violence.” As an example of such an “absurd” result, the court suggests that the decision could be seen by some to require that Twitter reveal the identity of a disgruntled teenager who posts, “My parents are so mean. I want to toss them in a ditch.” After all, isn't violence between children and parents just as much a threat to society as violence directed at politicians? Yet the court insists that its holding is “nowhere near that slippery slope.” Really?

(A PDF of Lamberth's Order is available at http://bit.ly/GJ1HHt.)

Conclusion

For Internet counsel, the question is: How does this holding affect anonymity on a company's websites, or for the postings of its employees on official or personal social media platforms where statements may indicate ill intent, malice, or a threat to the corporation or its executives, or to executives or employees of competitors?

This is particularly problematic given the tendency of people to post their most private thoughts on the Internet as if no one will read them, much less consider them serious. Indeed, the Internet, if it's known for anything, may be best known for the irresponsibility of what's posted on chat rooms, bulletin boards and social media sites. Can corporations cast a blind eye to possible threats posted by those who elect to be anonymous, however absurd the post might be? Under Lamberth's holding, one could easily find that the cloak of secrecy is lost, despite the fact that, as he noted in this decision: “Anonymity is a shield from the tyranny of the majority.” At a minimum, counsel should remind employees to be careful in what they post and to understand that anonymity is more a fiction than a fact.

One cannot help but understand and sympathize with the judge's disgust and concern. His citing of the long string of assassinations and terrorism our country has suffered makes a strong case that the government satisfied its burden of showing a compelling need and a needed nexus to flush out the truth. But it is said that “bad facts make bad law,” so it remains to be seen whether this decision, now that it's been released, will become precedent for wide-sweeping discretion to dismiss First Amendment rights on suspected fears.

On Feb. 23, 2012, a previously sealed decision dated Dec. 9, 2011, was released that illustrates the collision of online digital anonymity, the First Amendment, and prosecutorial prerogative. See, In Re Grand Jury Subpoena No. 11116257, U.S.D.C, District of Columbia, Misc. No. 11-527 [RCL].

The case revolved around a subpoena served on Twitter by a grand jury demanding the identity of a tweeter, dubbed by District Court Judge Royce Lamberth as Mr. X, who had allegedly made threats directed at former presidential hopeful Rep. Michele Bachmann. While the decision is filled with reprints of the many crude tweets emanating from Mr. X that makes for some pretty offensive reading, it is an excellent discourse on how technology is making what were once relatively easy decisions far more complicated.

At issue was the balance between Mr. X's right under the First Amendment ' despite how offensive his tweets may have been ' to remain anonymous and therefore quash the subpoena and, as the court noted, the government's right to discover his identity under principles of “compelling interest,” and “sufficient nexus between the subject matter of the investigation and the information they seek.”

Slippery Slope

In this case, Mr. X made threats of gross physical assault against Bachmann. From the various reprints of Mr. X's tweets, it is obvious he lacks any sense of decency or decorum, and as disgusting as his threat was to Bachmann, it's also clear that Mr. X had a longstanding pattern of obscene and offensive tweeting ' tweeting that Lamberth found completely lacking in humor. In what may be the best review comedian Andrew Dice Clay ever received, Lamberth wrote that Mr. X's “oeuvre represents an infantile attempt at humor that brings to mind the most obscene aspects of Andrew Dice Clay, but without even the infinitesimal modicum of artistic creativity that Mr. Clay manages to possess.”

Suffice to say, Mr. X had no fans in his corner.

But once the crudity and malicious nature of Mr. X is dismissed, the case illustrates what some may believe is a very slippery slope between the First Amendment in a digital world and a prosecutor's right to collect evidence in the investigation of an alleged crime.

Mr. X had a variety of defenses in addition to his general First Amendment rights. He argued, for example, that the overall nature of his tweets revealed someone who really didn't intend to carry out any of his threats. It's as if Mr. X felt he should be judged by the totality of his work, however pathetic it might be. Or, as Lamberth characterized it: “Would a reasonable person view the statement as expressing a serious intent to cause harm?” Mr. X concluded his argument by also insisting that the grand jury did not need to know his real name to determine the credibility of his threat. Mr. X felt his identity should remain unknown until an indictment was issued. A threat by any other name is still a threat?

Political Speech and Anonymity

Lamberth, in rejecting Mr. X's theories, noted that anonymous threats on the Internet pose unique problems. In effect, it can be argued that the court's holding shifts the focus of culpability from the intent or credible nature of the speaker to the possible reaction of the target. While Lamberth would probably deny such a shift, he does note that with anonymity, a target has no way of knowing whether the speaker is capable of carrying out his or her threat or not. While the court rejected the argument that such a flipped approach creates a slippery slope in regards to First Amendment rights, it is clear that the holding, whether it's on thin ice or not, is a serious indictment of anonymity on the Internet.

This is particularly true in light of the court's dicta that it had “grave doubts about the likelihood of a grand jury returning an indictment,” pointing out that a real threat requires a “serious expression of intent to commit an act of unlawful violence to a particular individual '.” Citing Virginia v. Black , 538 U.S. 343, 359 (2003), http://bit.ly/GdeRmM. Adding the complication of whether Mr. X's tweets were political speech only makes the holding even more slippery. After all, prior cases over overt threats to political figures have been rejected as constituting criminal behavior, however offensive they might be. The court noted a number of cases where the threat was deemed “political hyperbole” and not criminal behavior, e.g. , Watts v. United States , 394 U.S. 705 (1969), http://bit.ly/GDf3Cv ' speech by a Vietnam War protester that, if drafted, he would get a rifle and “the first man I want to get in my sights is L.B.J.”; and United States v. Bagdasarian , 652 F.3d at 1113, 1124 (9th Cir., 2011, http://bit.ly/Gdfehl ) ' a defendant's anonymous post, “Re: Obama. ' , he will have a 50 cal in the head soon.”

Nonetheless, in today's violent world and with the instances of actual violence against political figures, one can understand the court's decision to give broad discretion to prosecutors under their mandate to investigate and determine if someone is, indeed, a threat. This is particularly understandable in the case of presidents or those who aspire to be president.

But the holding is not limited to threats against politicians. Indeed, does it mean anonymity must be lost if a prosecutor has merely a suspicion of intent? The court admits that its decision may “produce absurd results” and allow the government to “subpoena any website any time any anonymous user made any post containing a mere scintilla of violence.” As an example of such an “absurd” result, the court suggests that the decision could be seen by some to require that Twitter reveal the identity of a disgruntled teenager who posts, “My parents are so mean. I want to toss them in a ditch.” After all, isn't violence between children and parents just as much a threat to society as violence directed at politicians? Yet the court insists that its holding is “nowhere near that slippery slope.” Really?

(A PDF of Lamberth's Order is available at http://bit.ly/GJ1HHt.)

Conclusion

For Internet counsel, the question is: How does this holding affect anonymity on a company's websites, or for the postings of its employees on official or personal social media platforms where statements may indicate ill intent, malice, or a threat to the corporation or its executives, or to executives or employees of competitors?

This is particularly problematic given the tendency of people to post their most private thoughts on the Internet as if no one will read them, much less consider them serious. Indeed, the Internet, if it's known for anything, may be best known for the irresponsibility of what's posted on chat rooms, bulletin boards and social media sites. Can corporations cast a blind eye to possible threats posted by those who elect to be anonymous, however absurd the post might be? Under Lamberth's holding, one could easily find that the cloak of secrecy is lost, despite the fact that, as he noted in this decision: “Anonymity is a shield from the tyranny of the majority.” At a minimum, counsel should remind employees to be careful in what they post and to understand that anonymity is more a fiction than a fact.

One cannot help but understand and sympathize with the judge's disgust and concern. His citing of the long string of assassinations and terrorism our country has suffered makes a strong case that the government satisfied its burden of showing a compelling need and a needed nexus to flush out the truth. But it is said that “bad facts make bad law,” so it remains to be seen whether this decision, now that it's been released, will become precedent for wide-sweeping discretion to dismiss First Amendment rights on suspected fears.