Judge: First Amendment bars cyber-stalking prosecution

A federal judge in Maryland has ruled that the First Amendment protects an online speaker – who made derogatory comments about a religious leader through Twitter – from being prosecuted under the federal anti-stalking law.

Analogizing Twitter to a colonial era bulletin board, Judge Roger W. Titus ruled that because Twitter users must "follow" someone in order to receive their tweets, and because users who find another's tweets offensive may "block" them, a person who is offended by this speech must "protect her own sensibilities simply by averting her eyes."

William Cassidy, who according to the FBI claimed he was a reincarnated Buddhist master, became an officer of the Kunzang Odsal Palyou Changchub Choling (referred to throughout the opinion as the "KPC" or the "Center"). After a falling out with the organization, Cassidy engaged in a Twitter "flame war" with the KPC's leader, according to Assistant Federal Public Defender Ebise Bayisa, one of Cassidy's attorneys. He was charged in February with violating the federal anti-stalking law, which makes it a crime to "harass" or "cause substantial emotional distress" to a person using "any interactive computer service."

This is an "important case," applying well-settled constitutional principles to new forms of communication, Bayisa said.

The alleged victim of Cassidy's tweets is the Supreme Head of this particular Buddhist Sect, referred to throughout the opinion only by her initials, A.Z.. In 2007, Cassidy became friends with a monk at the KPC, and shortly thereafter met A.Z. in Arizona. The FBI alleged that after meeting A.Z., Cassidy was appointed the chief operating officer of KPC, a position he held for two weeks before leaving the Center after it was revealed that his lineage was not Buddhist, the court wrote.

Cassidy then posted a series of comments to Twitter regarding A.Z. and the KPC. These comments included calling A.Z. a "demonic force who tries to destroy Buddhism," suggesting that she commit suicide, ridiculing A.Z.'s appearance, and charging that A.Z. is a hypocrite.

Cassidy was living in California when he made the postings. He was arrested there and brought to A.Z.'s home state of Maryland to face a single count of interstate stalking based upon his postings.

Judge Titus noted that there are few and narrowly defined categories of speech not protected by the First Amendment, including obscenity, defamation, fraud, incitement, true threats, and speech integral to criminal conduct. Cassidy's speech fell into none of these categories, and so was protected, Judge Titus wrote.

If the government seeks to engage in content-based regulation of speech that is not in one of the aforementioned categories, they may only do so if the regulation "is necessary to serve a compelling state interest," Judge Titus wrote. Because A.Z. could simply block Cassidy's tweets, the government could not show that there was a compelling interest in preventing A.Z.'s emotional distress. Bayisa called Judge Titus's opinion "thoughtful," with "sound analysis."

"This case says that those categories are still the categories" even in light of technological change, said Assistant Public Defender Lauren Case, another of Cassidy's attorneys. Bayisa said that the "unique nature of Twitter" is sometimes lost on prosecutors looking to make charges under the anti-stalking statute.

A spokesperson for the United States Attorney's Office for the District of Maryland declined to comment on the case.

Judge Titus declined to reach the issue of whether the entire anti-stalking statute violated the First Amendment, because it was unconstitutional "as applied" to Cassidy.

Cassidy remains in custody at a detention center in Baltimore, and his attorneys say they are seeking his release. The government has the option to appeal Judge Titus's ruling to the U.S. Circuit Court of Appeals in Richmond (4th Cir.).