By Elizabeth E. Joh
Social media raises tricky questions that judges are beginning to try to answer. It has been found possible to violate a restraining order by becoming an unwanted Instagram follower, or liking or tagging a Facebook post. In another instance, a US plaintiff was permitted to serve notice of a lawsuit against a foreign defendant through a tweet.
But what about crimes of violence? Could someone commit criminal assault with a tweet? The question arises in the recent discussion by journalist Kurt Eichenwald of the Twitter threats he has received from Trump supporters.
After Newsweek published his story investigating the complicated relationships the Trump Organization holds with foreign governments and business interests, Eichenwald received numerous responses on Twitter, many of them not only critical but threatening. One stood out, leading Eichenwald to write a new article.
The tweet (since deleted) referred to Eichenwald’s epilepsy and included an embedded video. When Eichenwald played the video, he writes, he instantly identified it – complete with flashing lights and images – as an epileptogenic, or seizure-triggering, video. He dropped his iPad as soon as he recognised the video’s characteristics.
Trump supporters have sent death threats, mockery and anti-Semitic imagery to journalists asking questions about Donald Trump’s finances, taxes, charitable giving and ties abroad.
The First Amendment doesn’t apply to Twitter, a private company, but many of these disturbing tweets could be analogised to protected hate speech. (And “true threats” can nonetheless be prohibited under the First Amendment.) Nearly all of them probably violate Twitter’s own terms of service.
In the case of the epilepsy triggering video, however, the person who trolled Eichenwald may have committed criminal assault.
Picture: Carlos Latuff (http://twitpic.com/66ay0l) [Public domain], via Wikimedia Commons