Court Affirms Stalking and Harassment Conviction for Tagged Tweets–In re AJB
This is a stalking and harassment case involving tweets by classmates of the victim. The court recites the facts below:
In March 2016, high school students, W.K., B.L., and appellant A.J.B., discussed that M.B., a fellow student who had been diagnosed with autism and ADHD, had recently posted some tweets discussing girls at school. B.L. and A.J.B. told W.K. that they wanted to post materials on M.B.’s Twitter page to elicit a “negative response.” A.J.B. created a Twitter account with no identifying information called “Jeb Bush’s Guac Bowl.” A.J.B. then began tweeting messages tagging M.B.’s account over two to three hours, with several referring to autism. One post contained a sign saying “Autistic Children Play Here” with a caption reading “Meanwhile at [M.B.]’s Daycare.” Another post contained a checkerboard of images with M.B.’s face and a caption reading “Click the Autistic Child.” Another post encouraged M.B. to “try a new cologne called ‘Anthrax.’ ” One post encouraged M.B. to “consider suicide,” while another contained an image stating “Consider the following” with a picture of a person holding a Clorox Bleach bottle. A.J.B. also posted an image of Pepe the Frog, “a known hate symbol,” hanging by the neck on a rope.
The tweets came to the attention of one of the school administrators who asked the victim whether he saw “anything online that made him concerned”. He said he hadn’t checked his Twitter account lately. He later looked at the tweets and they made him suicidal. Ultimately the posts necessitated a visit to the psychiatrist and a social worker. (His mother was concerned at the prospect of him harming himself.)
A.J.B., the student who posted the tweets, was charged with harassment and stalking. The initial charges were misdemeanors, but the state added a count of felony stalking (due to the victim’s disability). A.J.B. lost at trial and appealed, asserting a First Amendment challenge.
Overbreadth: The court says that the statute implicates the First Amendment but will be found overbroad only if unconstitutional in a “substantial number of its applications.” The court distinguishes prior Minnesota cases invalidating harassment statutes and says unlike those cases, here, the statute is targeted. The statute only applies to specific conduct, that is done repeatedly, and with the intent to cause some effect on the recipient. In the court’s view, this saves the statute from an overbreadth challenge.
As-Applied Challenge: A.J.B. analogized his tweets to sending out flyers and posting on a bulletin board and said his tweets were akin to leafletting. The state argued that his speech was entitled to “diminished” protection.
The court first asks whether the actions were expressive. This is undoubtedly true, given that the contents of the tweet triggered the charge. Thus, the court says the key question is whether “A.J.B.’s actions were constitutionally protected.” A.J.B. cites to United States v. Cassidy, a case where a federal district court found that repeated tweets about a religious figure could not form the basis of a charge under the federal stalking statute. The court distinguishes that case saying that it did not involve “tagging”. Because A.J.B. tagged the putative victim, the statements were not merely public statements but were also directed at the victim. In other words, the court says they are one-to-many speech, but also one-to-one speech:
As one witness testified, although tweets tagging a specific Twitter user are still public, the act of tagging someone means that the messages are “on their wall. Anyone can see it but [the poster is] just making sure that the [tagged] person sees it.”
Ultimately, the court finds A.J.B.’s citation to Cassidy inapposite.
The court also finds A.J.B.’s “conduct” unprotected. It finds that (1) there is an exception (albeit a controversial one) for protected speech for speech that is integral to criminal conduct and (2) a range of decisions validating convictions under the federal stalking statute endorse a conviction in a case such as this. The court cites to, Osinger, a Ninth Circuit stalking case we’ve blogged about, and US v. Petrovic, which Osinger relied on:
[t]hese cases demonstrate that engaging in a pattern of harassing conduct is not protected by the First Amendment simply because it is carried out by means of speech.
The court also disposes of A.J.B.’s arguments regarding whether the state bore the burden of showing the A.J.B.’s actions were not constitutionally protected and whether the state adduced sufficient evidence to support a conviction.
This is an awful act by A.J.B. Here, the facts are particularly troubling given that the acts took place in a school setting and the victim had a disability. The court does not address this, but one could argue that the victim could suffer diminished educational opportunity as a result of this type of communications. This was not a school discipline case but the school administrators probably had viable arguments based on educational opportunity. It should have probably been a school discipline case rather than a felony.
It’s a good example of a case where the speech in question does not fall into a recognized exception, but the court still struggles to fit it into one. The fact that the putative victim did not even view the posts in question–until after being alerted by an administrator–makes it an even tougher case. (For what it’s worth, this is not an isolated occurrence. A Washington school threat case involved a threat that was conveyed as a result of a school administrator/counselor alerting the putative victim to it.)
The social media cases always tend to gloss over the effect of blocking as an effective remedy. Sure the person who is tagged is likely to see it, but they have a simple route to never being forced to see tweets from the user in question again.
The harassment and stalking cases all deal with the core question of whether otherwise protected speech can be proscribed because it causes a person emotional harm or mental unrest. The Supreme Court has never expressly endorsed this approach, but federal and state appeals courts have taken various routes to achieving this result. Ultimately, the Supreme Court will have to weigh in.
[NB: after I finished the draft post, I saw that a Texas court invalidated the state’s revenge porn statute on First Amendment grounds in ways that may be hard to harmonize with this ruling. Stand by for a post on that case.]
Eric’s Comments: AJB’s tweetstorm is egregious. As the district court correctly said, A.J.B.’s “posts are cruel and go beyond any measure of human decency. They barrage a disabled young man who already suffers on numerous fronts with demeaning messages both directly and publicly.”
However, the law doesn’t criminalize anti-social behavior generally. To be convicted of a crime, the defendant must have satisfied every element specified by the legislature. So does AJB’s conduct constitute the crimes of harassment or stalking?
Per this court’s interpretation, it’s criminal stalking in Minnesota to send two or more @tweets to a person knowing they would cause the person to “feel frightened, threatened, oppressed, persecuted, or intimidated.” The Minnesota criminal harassment statute is equally dubious, applying when a person sends two or more @tweets “with the intent to abuse, disturb, or cause distress.” Really…? These standards massively diverge from the paradigmatic lay expectations of what constitutes stalking or harassment. By these definitions, I’ve been stalked and harassed many times on Twitter; and query if you have ever violated either criminal standard? (Don’t answer that out loud!). Please don’t give me any BS about prosecutorial discretion fixing the legislature’s poor drafting.
The court says the statutes aren’t facially overbroad because they “penalize only specific, repeated conduct done with intent, knowledge, or reason to know that the conduct will elicit a particular response.” But doesn’t the “particular response” matter for purposes of Constitutional analysis? The statutes refer to feelings like “intimidated” or “disturbed.” But I’m allowed to tell sarcastic jokes that might make someone feel bad about themselves or have a less-than-great day….aren’t I?
The court’s technological description of @tweeting is also garbled. It recounts evidence that “the act of tagging someone means that the messages are ‘on their wall. Anyone can see it but [the poster is] just making sure that the [tagged] person sees it.'” The reference to “their wall” in this passage is confusing. I cannot appear in someone else’s Twitter timeline unless they retweet me, whereas in Facebook and LinkedIn, my posts can show up on other people’s walls (at least in some cases) just by including their name in my post. Furthermore, AJB’s barrage of @tweets would NOT appear in AJB’s main newsfeed (as opposed to the “tweets and replies” option), and and would not seen by most readers, if the @ reference was the tweet’s first character; and none of MB’s followers would have seen AJB’s tweets unless they were also followers of AJB. Plus, MB would see the @tweets only if MB hadn’t blocked AJB and only if MB looks in the notifications area (which not everyone does). There’s a lot of technological complexity about how content appears on Twitter that the court glossed over.
So I agree 100% with Venkat’s bottom line: the court overread the statutes and underread the First Amendment to fit AJB’s egregious behavior. When it comes to the interpretation of criminal laws and the associated criminal sanctions, such errors should trouble all of us. I also agree with Venkat that this situation almost certainly would have been better handled through school discipline rather than the criminal courts.
Case citation: In re Welfare of A.J.B., 2018 WL 1701981 (Minn. Ct. App. Apr. 9, 2018)