The First Amendment Clinic recently submitted a motion to file an amicus brief in Dallas County, Texas, criminal court in State v. Rivello.
The brief, which was drafted by third-year clinical students Kyle Nodes, Ryan Rizzuto, Luke Morgan, and Bryan Czako, concerns whether using Twitter to privately send a flashing graphic with the words “YOU DESERVE A SEIZURE FOR YOUR POSTS” as a text overlay constitutes protected speech under the First Amendment when sent to a known epileptic. The recipient of the graphic, Kurt Eichenwald, is a journalist and active Twitter user who has spoken publicly about his struggles with epilepsy. When Eichenwald opened his inbox on Twitter on Dec. 15, 2016, the “gif” caused him to suffer a severe seizure and triggered a myriad of subsequent health issues.
In the brief, the clinic argues that the sending of this particular strobe gif in this context does not constitute speech within the First Amendment’s meaning and should not be afforded First Amendment protections. Rather, the brief explains, although the words included in the text overlay themselves could be considered expressive speech, permitting criminals and tortfeasors to shield themselves from liability for their actions by layering on supplemental speech would undermine proper government regulation unrelated to the values underlying expressive conduct doctrine. Indeed, the brief notes, “[a] brawler who tattoos a message onto his knuckles does not throw every punch with the weight of First Amendment protection behind him.”
The clinic argues that even if the conduct is deemed to constitute speech, it would fit within the categorical and historical exclusions to the First Amendment’s protection, such as true threats, speech integral to criminal conduct, and fighting words. Equating the conduct here to “the internet-age’s version of a physical assault,” the clinic concludes that the sender should not be permitted to skirt liability on First Amendment grounds.
In explaining why the clinic chose to file a brief in opposition to the expansive First Amendment arguments in this case, Rizzuto noted, “The First Amendment is at its strongest when its protections are reasonable. It does not protect language or conduct that is itself a means of committing a tort or crime punishable for reasons unrelated to expression.”
Said Nodes, “The clinic seeks to preserve the potency of First Amendment defenses, and allowing such defenses to go unchecked threatens the viability of First Amendment arguments.”