ROGER W. TITUS, District Judge.
The Indictment in this case alleges that the Defendant, William Lawrence Cassidy, violated a federal stalking statute, 18 U.S.C. § 2261A(2)(A), when, with the intent to harass and cause substantial emotional distress to a person in another state, he used an interactive computer service to engage in a course of conduct that caused substantial emotional distress to a person whose initials are A.Z by posting messages on www.Twitter.com and other Internet Websites. Defendant has filed a Motion to Dismiss the Indictment (ECF No. 20) in which he argues that 18 U.S.C. § 2261A(2)(A) violates the First Amendment. Defendant also filed a Motion Requesting a Hearing Pursuant to Franks v. Delaware and to Suppress Tangible and Derivative Evidence, as well as, a Motion to Suppress. See ECF Nos. 21 and 22. Finally, Defendant filed a Motion for a Bill of Particulars (ECF No. 16).
This case involves allegations, described in greater detail below, that a crime was committed through the Defendant's use of two recent phenomena of the internet age, "Blogs" and "Twitter." Essential to the analysis of the legal issues in this case is an understanding of both of these phenomena, which have become almost ubiquitous.
A "Blog" is a shorthand term for a "web log," i.e. a log or web page maintained on the World Wide Web. A Blog is like a bulletin board and contains whatever material its sponsor decides to post. It does not send messages, and there is no limitation on the length of statements that may be contained on a Blog. Like a bulletin board, it does not communicate except to those who voluntarily choose to read what is posted on it.
According to its web page, "Twitter" is a "real-time information network that connects" users to the "latest information about what you find interesting. * * * At the heart of Twitter are small bursts of information called Tweets. Each Tweet is 140 characters in length. . . ."
A Twitter user may choose to block someone, e.g., someone whose messages are deemed offensive, in which case the offending user will be unable to follow the offended user or add that user to his or her lists, and the blocked user's Tweets will not be delivered to the other user's home page. Twitter provides detailed instructions for blocking Tweets from another user as well as for "unfollowing" another user, i.e. blocking Tweets from a user that one used to follow.
A Direct Message ("DM") is a private message sent from one Twitter user to another, but such messages can only be sent to another user who is a "follower." All Twitter users are provided with the ability to block other users, in which case one user cannot follow another and neither their "Tweets" nor their Direct Messages will be delivered.
Because this case involves First Amendment issues, terms that were in use by citizens when the Bill of Rights was drafted may help in understanding the legal context of Blogs and Twitter. Suppose that a Colonist erects a bulletin board in the front yard of his home to post announcements that might be of interest to others and other Colonists do the same. A Blog is like a bulletin board, except that it is erected in cyberspace rather than in one's front yard. 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. Now, one can inspect a neighbor's Blog by simply turning on a computer.
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 automatic postings from one Colonist to another can be turned on or off by the owners of the bulletin boards, but there is no mandatory aspect of postings on one Colonist's bulletin board showing up on the other's. It is entirely up to the two Colonists whether their bulletin boards will be interconnected in such a manner.
Blogs are of unlimited size in terms of content, but must be accessed one at a time. Twitter is limited to 140 characters, but allows unlimited voluntary connectivity with other users. That connectivity, however,
Whether couched in terms of the Internet or Colonial bulletin boards, there is one consistent aspect of both eras. 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. This is in sharp contrast to a telephone call, letter or e-mail specifically addressed to and directed at another person, and that difference, as will be seen, is fundamental to the First Amendment analysis in this case.
This case was initiated by the filing of a criminal complaint issued on February 2, 2011 by a magistrate judge of this Court based upon an affidavit submitted to him by F.B.I. Special Agent Jessica A. Nye. According to the Nye affidavit, A.Z. is an enthroned tulku or reincarnate master who was enthroned in 1988 as a reincarnate llama. (ECF No. 20-2) Following the enthronement ceremony, the Supreme Head of this particular Sect of Buddhism renamed the center where A.Z. taught as Kunzang Odsal Palyou Changchub Choling ("KPC" or the "Center"). KPC was designated as the Supreme Head's seat in the West, and A.Z. is believed by members of the KPC to be the only American-born female tulku.
According to Nye's affidavit, the Defendant, who was then known as William Sanderson, befriended one of the monks of the KPC in 2007; he claimed he was also a Buddhist American tulku and expressed an interest in meeting A.Z. Those close to A.Z. encouraged her to meet with the Defendant. Thereafter, A.Z. invited the Defendant to join her at her retreat in Arizona and Defendant asked to ride alone with her in her vehicle. While in the vehicle, Defendant proposed to A.Z., and she declined. He also asked her to pretend they were married. A.Z. confided in the Defendant and shared details of her personal life, including the sexual abuse she endured as a child and particulars of the failed relationship with her ex-husband. In response, Defendant asked A.Z. if she wanted him to kill her ex-husband, and A.Z. requested that her ex-husband not be harmed.
Nye's affidavit also alleges that when Defendant claimed to have Stage IV Lung Cancer, members of the KPC took care of him, as if these were his final days. At that time, it came to light that the Defendant's real name was William Cassidy. KPC members and A.Z. also began to notice that the Defendant's conduct was inconsistent with this Sect's teachings. For example, he would gossip even though the Sect considers gossip offensive. These incidents led A.Z. to investigate the Defendant's lineage in order to assess whether he was in fact a tulku. Despite these concerns, however, KPC promoted Defendant in February 2008 to the position of Chief Operating Officer of KPC. The Defendant only held this position for two weeks. On February 23, 2008, A.Z. learned that the Defendant was never a tulku and confronted him. The Defendant immediately left the retreat, taking with him a Buddhist nun, Nydia Alexandra.
According to the Nye affidavit, the Twitter account "Vajragurl" frequently posts
On November 12, 2010, and December 11, 2010, Twitter was served with a grand jury subpoena for the IP addresses accessing the "Vajragurl," "aconlamho," "kpc_watch," and other Twitter accounts.
KPC and A.Z. also claim that Defendant used Blogs to harass them. According to the Nye Affidavit, a Blog entitled "Digitial Tibetan Buddhist Altar," located at http://tibetanalter.Blogspot.com, contains two posts not necessarily directed at A.Z.,
According to the Nye affidavit, Defendant's Tweets and Blog postings have caused A.Z. substantial emotional distress. She fears for her own safety and that of her fellow KPC members. As a result of the alleged harassment, A.Z. has not left her house for a year and a half, except to see her psychiatrist. A.Z. was in such fear
On February 2, 2011, Nye submitted an affidavit (ECF No. 20-2) in support of an arrest warrant for the Defendant on the basis that the Defendant violated 18 U.S.C §§ 2261A(2)(A) and 2261A(2)(B), and an arrest warrant was issued that same day. On February 23, 2011, the Grand Jury indicted Defendant on one count of interstate stalking under 18 U.S.C. § 2261A(2)(A), but not § 2261A(2)(B).
Section 2261A is an interstate stalking statute originally passed as part of the Violence against Women's Act. See Pub.L. No. 104-201, Div. A, Title X, § 1069(a), 110 Stat. 2422, 2655 (1996).
Prior to 2006, Section 2261A(2)(A) made it a crime, inter alia, to use the mail or any facility of interstate or foreign commerce to engage in a course of conduct with the intent to place a person in reasonable fear of the death of, or serious bodily injury to that person. The pre-2006 version of Section 2261A(2)(A) reads as follows:
In 2006, Section 2261A(2)(A) was amended substantially and now reads as follows:
Pub.L. No. 109-162, Title I, § 114(a), 119 Stat. 2690, 2987.
These amendments significantly broadened the scope of the law. The requisite intent no longer was limited to an intent to "kill or injure," but was broadened to include the intent to "harass or place under surveillance with the intent to . . . harass or intimidate or cause substantial emotional distress." The requisite action was also broadened so as to bring within the scope of the law a course of conduct that merely "causes substantial emotional distress." Prior to the 2006 change, the course of conduct was limited to one that places a person in reasonable fear of death or serious bodily injury. Finally, the 2006 changes expanded the mechanisms of injury to add use of an "interactive computer service" to the existing list which already included use of mail or any facility of interstate or foreign commerce.
The Defendant has moved to dismiss the Indictment, alleging that (1) Section 2261A(2)(A) violates the Free Speech Clause of the First Amendment because it is overbroad and implicates a broad range of otherwise constitutionally protected speech; (2) Section 2261A(2) is unconstitutional as applied to the Defendant; (3) Section 2261A(2)(A) is unconstitutionally vague, thus violating the Defendant's due process rights under the Fifth Amendment because it does not give notice as to what specific conduct is unlawful; and (4) the Indictment fails to state a criminal offense.
Under the First Amendment "Congress shall make no law . . . abridging the freedom of speech." U.S. Const. amend. I. From our nation's founding, there has been a tradition of protecting anonymous speech, particularly anonymous political or religious speech. See Watchtower Bible & Tract Society v. Village of Stratton, 536 U.S. 150, 162, 122 S.Ct. 2080, 153 L.Ed.2d 205 (2002); Lefkoe v. Jos. A. Bank Clothiers, Inc., 577 F.3d 240, 248 (4th Cir.2009) ("Courts have typically protected anonymity under the First Amendment when claimed in connection with literary, religious, or political speech.") For example, the Federalist Papers, written by James Madison, Alexander Hamilton, and John Jay, but published under the pseudonym "Publius," are in and of themselves the best example of anonymous political speech. See McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 343 n. 6, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). And the opponents of the federalists, the anti-federalists, also used pseudonyms to publish their views anonymously. Id. In 1960, the Supreme Court recognized the importance of this type of core anonymous speech stating that "leaflets, brochures and even books have played an important role in the progress of mankind [as] [p]ersecuted groups and sects from time to time throughout history have been able to criticize oppressive practices and laws either anonymously or not at all." Talley v. California, 362 U.S. 60, 65, 80 S.Ct. 536, 4 L.Ed.2d 559 (U.S.1960). This is because anonymous speech allows individuals to express themselves freely without "fear of economic or official retaliation . . . [or] concern about social ostracism." McIntyre, 514 U.S. at 341-42, 115 S.Ct. 1511.
Moreover, the First Amendment protects speech even when the subject or
Indeed, the Supreme Court has consistently classified emotionally distressing or outrageous speech as protected, especially where that speech touches on matters of political, religious or public concern. This is because "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, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (citing Hustler Magazine, Inc. v. Faldwell, 485 U.S. 46, 56, 108 S.Ct. 876, 99 L.Ed.2d 41 (1988)); See also New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964); Snyder v. Phelps, ___ U.S. ___, 131 S.Ct. 1207, 1219, 179 L.Ed.2d 172 (2011) (Because the emotionally distressing "speech was at a public place on a matter of public concern, that speech is entitled to `special protection' under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt").
Even though the Internet is the newest medium for anonymous, uncomfortable expression touching on political or religious matters, online speech is equally protected under the First Amendment as there is "no basis for qualifying the level of First Amendment scrutiny that should be applied" to online speech. Reno v. Am. Civil Liberties Union, 521 U.S. 844, 870, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997). Indeed "whatever the challenges of applying the Constitution to ever-advancing technology, basic principles of freedom of speech and press, like the First Amendment's command, do not vary when a new and different medium for communication appears." See Brown v. Entm't Merch. Ass'n, ___ U.S. ___, 131 S.Ct. 2729, 2733, 180 L.Ed.2d 708 (2011) (internal quotations omitted).
Even though numerous court decisions have made a point to protect anonymous, uncomfortable speech and extend that protection to the Internet, not all speech is protected speech. There are certain "well-defined and narrowly limited classes of speech" that remain unprotected by the First Amendment. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571-572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). This type of unprotected speech is limited to, (a) obscenity, Roth v. United States, 354 U.S. 476, 77 S.Ct. 1304, 1 L.Ed.2d 1498 (1957), (b) defamation, Beauharnais v. Illinois, 343 U.S. 250, 254-255, 72 S.Ct. 725,
Applying these standards, it is clear that the Government's Indictment is directed at protected speech that is not exempted from protection by any of the recognized areas just described. First, A.Z. is a well-known religious figure who goes by the names Alyce Zeoli or Catherine Burroughs. Martha Sherrill, a Washington Post journalist wrote a critical non-fiction book about A.Z. entitled The Buddha from Brooklyn (Random House 1st ed. 2000). Second, although in bad taste, Mr. Cassidy's Tweets and Blog posts about A.Z. challenge her character and qualifications as a religious leader. See Appendix A. And, while Mr. Cassidy's speech may have inflicted substantial emotional distress, the Government's Indictment here is directed squarely at protected speech: anonymous, uncomfortable Internet speech addressing religious matters. Tellingly, the Government's Indictment is not limited to categories of speech that fall outside of First Amendment protection—obscenity, fraud, defamation, true threats,
A content-based restriction on protected speech must survive strict scrutiny. See United States v. Playboy Entm't Grp., Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). But, if the regulation is "unrelated to the content of speech,"—i.e. content-neutral—it only need survive an intermediate level of scrutiny as these types of regulations "pose a less substantial risk of excising certain ideas or viewpoints from the public dialogue." Turner Broad. Sys. Inc. v. Fed. Comm'cns Comm., 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994). In determining whether a statute is content-neutral, one must determine whether "the government has adopted a regulation of speech because of disagreement with the message it conveys." Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989). For example, "[a]s a general rule, laws that by their terms distinguish favored speech from disfavored speech on the basis of the ideas or views expressed are content-based,"
Typically, a restriction is content-based if it regulates speech based on the effect that speech has on an audience. For example in Playboy Entertainment Group, the Supreme Court held that the Telecommunications Act's "signal bleed" provision, requiring cable operators either to scramble sexually explicit channels in full or limit programming on such channels to certain hours, amounted to a content-based restriction. 529 U.S. at 811-812, 120 S.Ct. 1878. The provision "single[d] out particular programming content for regulation" as well as "particular programmers," applying by its terms only to channels "primarily dedicated to sexually-oriented programming." 47 U.S.C. § 561(a) (1994 Supp. III.). Id. at 806, 120 S.Ct. 1878. Because the provision focused only on the content of the speech and the direct impact that speech had on viewers, the provision was a content-based restriction. Id. at 812, 120 S.Ct. 1878, see also Boos v. Barry, 485 U.S. 312, 321, 108 S.Ct. 1157, 99 L.Ed.2d 333 (1988) (holding that a Washington, DC regulation making it unlawful, within 500 feet of a foreign embassy, either to display any sign that tends to bring the foreign government into "public odium" or "public disrepute" amounts to a content-based speech restriction because it focuses on the direct impact of the speech on a foreign government); Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 877, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (holding that Provisions of the Communications Decency Act (CDA) prohibiting transmission of obscene or indecent communications by means of a telecommunications device to persons under the age of 18, or sending patently offensive communications through use of interactive computer service to persons under the age of 18 is a content-based restriction on speech as it focuses on the impact of that speech); PSINet Inc. v. Chapman, 362 F.3d 227, 233 (4th Cir.2004) (same).
In the present case, the only portion of Section 2261A(2)(A) mentioned in the Indictment amounts to a content-based restriction. Section 2261A(2)(A) criminalizes anyone who:
Mr. Cassidy allegedly violated the statute by intentionally causing substantial emotional distress to A.Z., specifically on Twitter and Blogs. The portion of Section 2261A(2)(A) relied on in the Indictment amounts to a content-based restriction because it limits speech on the basis of whether that speech is emotionally distressing to A.Z.
To survive strict scrutiny, the Government has the burden of showing that a content-based restriction "is necessary to serve a compelling state interest." See PSINet, 362 F.3d at 234 (citing First National Bank of Boston v. Bellotti, 435 U.S. 765, 98 S.Ct. 1407, 55 L.Ed.2d 707 (1978)). The Government indirectly argues that it has a compelling interest in protecting victims from emotional distress sustained through an interactive computer service. See Pl. Mot. to Dismiss Indictment
Here, A.Z. had the ability to protect her "own sensibilities simply by averting" her eyes from the Defendant's Blog and not looking at, or blocking his Tweets.
In United States v. Stevens, the Supreme Court affirmed the Third Circuit's decision holding that a content-based restriction of protected speech—i.e. a federal statute that criminalized the intentional creation, sale or possession of a depiction of animal cruelty—did not serve a compelling state interest on the basis that these types of content-based restrictions of protected speech are presumptively invalid. ___ U.S. ___, 130 S.Ct. 1577, 1584, 176 L.Ed.2d 435 (2010).
The Government argues that Section 2261A(2)(A) regulates conduct and not speech, and any impact on speech is incidental and content-neutral. However, in United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the Court stated that in situations where "`speech' and `nonspeech' elements are combined in the same course of conduct" a government regulation must still pass intermediate scrutiny. A content-neutral regulation of conduct that has an incidental impact on speech survives intermediate scrutiny if "`it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.'" See Satellite Broad. & Comm'cns Ass'n v. Fed. Comm'cns Comm., 275 F.3d 337, 355 (4th Cir.2001) (citing O'Brien, 391 U.S. at 377, 88 S.Ct. 1673).
Arguably, preventing the use of the Internet and other interactive computer services to inflict emotional distress on others serves an important governmental interest. Indeed, by analogy, the Fourth Circuit has held that "the government has a strong and legitimate interest in preventing the harassment of individuals" in the context of a Virginia telephone harassment statute that prohibited the intentional use of the telephone to harass others. Thorne v. Bailey, 846 F.2d 241, 243 (4th Cir.1988).
However, it is questionable whether the same interest exists in the context of the use of the Internet alleged in this case because harassing telephone calls "are targeted towards a particular victim and are received outside a public forum." United States v. Bowker, 372 F.3d 365, 379 (6th Cir.2004). Twitter and Blogs are today's equivalent of a bulletin board that one is free to disregard, in contrast, for example,
Assuming, however, that preventing the use of the Internet and other interactive computer services to inflict emotional distress on others qualifies as an important governmental interest, the issue here is whether the incidental restriction Section 2261A(2)(A) places upon speech is no greater than is essential to the furtherance of that interest. The facts of this case indicate that it does not. Defendant and the Amicus, the Electronic Frontier Foundation, point out that A.Z. is not merely a private individual but rather an easily identifiable public figure that leads a religious sect, and that many of the Defendant's statements relate to KPC's beliefs and A.Z.'s qualifications as a leader.
Indeed, the Government does not suggest that its interest in preventing the use of the Internet and other interactive computer services to inflict emotional distress on others would no longer be furthered if the statute did not apply to individuals
Although the Defendant and the Government extensively briefed the issue of whether Section 2261A(2)(A) is overbroad or void for vagueness, this Court will not address these facial challenges to the statute because the Court concludes that the statute is invalid as applied. Where courts have found a statute to be unconstitutional as applied, they do not generally reach facial challenges to statutes based on overbreadth or vagueness. For example, in United States v. Popa, the court found unconstitutional, as applied, a federal telephone statute that prohibited making anonymous telephone calls with the intent to annoy abuse or harass to a defendant who used the phone to call the U.S. Attorney's office and communicate racial epithets and complaints about police brutality. 187 F.3d 672, 678 (D.C.Cir. 1999). Applying intermediate scrutiny, the court reasoned that the defendant engaged in a type of political speech, and the statute could have been more narrowly drafted to exclude such speech from prosecution. Id.
Even though the defendant in United States v. Popa also challenged the statute on its face under the overbreadth doctrine, the court explicitly decided not to address that issue, stating that "because the statute is unconstitutional as applied to [defendant's] conduct, we shall not go on to inquire as to whether the statute is overbroad." Id. Indeed, this approach is not unique. See Bd. of Trustees of State Univ. of N.Y. v. Fox, 492 U.S. 469, 484-85, 109 S.Ct. 3028, 106 L.Ed.2d 388 (1989) (holding that governmental restriction on commercial speech as applied to plaintiffs was unconstitutional and did not consider an overbreadth challenge, reasoning that "it is not the usual judicial practice . . . nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily—that is before it is determined that the statute would be valid as applied.").
For the reasons set forth above, the Court will, by separate Order, grant the Motion to Dismiss the Indictment and deny as moot all of the Defendant's remaining motions.
Upon consideration of the Defendant's pretrial motions, the argument of counsel,
ORDERED, that the Defendant's Motion to Dismiss the Indictment (ECF No. 20) is
ORDERED, that the Defendant's Motion Requesting a Hearing Pursuant to Franks v. Delaware and to Suppress Tangible and Derivative Evidence and his Motion to Suppress (ECF Nos. 21 and 22) is
ORDERED, that the Defendant's Motion for a Bill of Particulars (ECF No. 16) is
ORDERED, that the Defendant is to be
"Just for sake of example, lets pretend that once upon a time, you dreamed that somebody came clump, clump, clumping up the stairs to your bedroom and did you an injury. . . Maybe it was somebody you knew . . . The time, the body, and the circumstance no longer exist. This is to say that the body which was injured in the dream no longer exists, the apparent attack itself no longer exists, and the apparent attacker no longer exists. . . . The body which was attacked may with equal validity only be claimed as extant for the precise moment of the attack. We may also say that was the younger body, whereas now there is the older body."
