The Future

Yes, sending Kurt Eichenwald a GIF can be a crime

A tweet that gave the journalist an epileptic seizure isn't covered by the First Amendment.
The Future

Yes, sending Kurt Eichenwald a GIF can be a crime

A tweet that gave the journalist an epileptic seizure isn't covered by the First Amendment.

On December 15, 2016, after appearing on Tucker Carlson’s show to argue about Trump, journalist Kurt Eichenwald opened his Twitter account at his home in Dallas to a tweet from a man named John Rivello. The tweet contained an animated, epileptogenic GIF, and that GIF — as intended — triggered a seizure for Eichenwald, who is epileptic.

Four months later, the Maryland-based Rivello was charged by both Dallas County, where Eichenwald lives, for assault with a deadly weapon and, briefly, by the Northern District of Texas under the federal cyberstalking statute. Initially, the charges raised First Amendment concerns that Rivello was being improperly targeted for being a bigoted asshole. But the reindictment of Rivello on Friday on lesser assault charges — apparently in anticipation of a guilty plea on Monday that was not finalized — those concerns seem entirely misguided. Before this case, it would have seemed bizarre to think that a tweet could cause physical injury, but it turns out the world is pretty stupid and people are cruel. If a tweet can be manipulated to cause a seizure, the First Amendment isn’t at risk if the law adapts to criminalize those tweets. It is somewhat deflating to investigate something novel only to ultimately decide that it's unremarkable — a natural evolution of existing law, and not an attack on free speech as some critics have claimed.

To recap, since all of this happened three years ago: Victim Eichenwald, 58, has written publicly about his loathing of Trump and his struggles with epilepsy. Defendant Rivello, 32, evidently loves Trump, hates Jews, and knew that Eichenwald has epilepsy. Rivello — using the moniker @jew_goldstein — tweeted an animated GIF at Eichenwald designed to trigger a seizure in people with epilepsy. Overlaid on the GIF, as a favor to any future jury who would have to consider his intent, was the phrase “YOU DESERVE A SEIZURE FOR YOUR POSTS.”

Presumably, Eichenwald, who has worked for the New York Times, Vanity Fair, and Newsweek, clicked his mentions tab, the GIF played automatically and, as per Rivello’s plan, he suffered a seizure, which was declared in a follow up tweet from his wife. Further easing any doubt about his intent, Rivello allegedly told his online pals that he was going to do it, and then after he did it bragged about it. For this, Rivello was arrested and initially charged in Dallas with felony “assault with a deadly weapon.”

When I first heard about Rivello’s tweet and Eichenwald’s seizure, I didn’t take the situation seriously. Eichenwald was known as the guy who said he was checking out tentacle porn on behalf of his family, and I’ve had him blocked for years for prolific and annoying tweets that I no longer recall. That said, I now feel pretty embarrassed about my immediate reaction.

According to a federal civil suit filed by Eichenwald against Rivello in Maryland, that seizure left him vulnerable to additional ones; he had another a week later. The second one forced him to increase the dosage of his anti-convulsive medication, despite profoundly debilitating side effects, and he spent Christmas of 2016 in a sedated haze.

For good measure, Rivello’s charge was tagged with a hate crime enhancement, because of his “bias or prejudice towards… persons of Jewish faith or descent.” (Eichenwald isn’t a practicing Jew, although his father was Jewish. But given Rivello’s affiliations, this probably made Eichenwald sufficiently Jew-ish for Rivello, and the charge turns more on his prejudices than Eichenwald’s actual faith anyway.) The original indictment explains the charges in one tight paragraph, alleging that Rivello:

intentionally, knowingly and recklessly cause[d] bodily injury … by inducing a seizure with an animated strobe image, knowing that the complainant was susceptible to seizures and that such animations are capable of causing seizures and said defendant did use and exhibit a deadly weapon, to-wit: a Tweet and a Graphics Interchange Format (GIF) and an Electronic Device and Hands.

Rivello and his counsel have been mounting a defense on First Amendment grounds. Though I was surprised to see that the First Amendment Clinic at Duke Law School filed an amicus brief in support of the indictment despite concerns that law school clinics lean too far left, sparing the prosecution the work of responding at all, I can’t say that the Dookies were wrong.

Punching someone in the face communicates a message, but it isn’t one protected by the First Amendment.

Rivello’s challenge to the prosecution had two components. First, that he was being punished for his speech in violation of the First Amendment, and second, that a tweet can’t constitute an assault under Texas law because it does not involve physical contact. This argument apparently failed to persuade a judge, who denied a motion to dismiss in May. Despite the novelty of the charge, I can’t disagree with the denial. In fact, the legal issue here doesn’t seem complicated at all.

Rivello argues that he is being punished for his speech, but the text of his tweet is the one thing he’s not being charged for. The indictment spells it out pretty clearly: Rivello knew Eichenwald had epilepsy and he knew the GIF was capable of causing seizures. The act of tweeting brought the charge, not the message. Punching someone in the face communicates a message, but it isn’t one protected by the First Amendment; if you yell loud enough to blow out someone’s eardrums, it doesn’t really matter what you are saying. Even to the extent that an exception is required, Giboney v. Empire Storage & Ice, a dumb 1949 case criminalizing picketing, sets forth the less-dumb principle that speech integral to criminal conduct is not protected. Rivello argues, without elaboration, that a tweet doesn’t fall into that category, but I have a hunch that most judges would find that a tweeted GIF intended to cause a debilitating seizure is, in fact, integral to the crime of assault.

A series of photons hitting the retina and triggering a seizure ultimately doesn’t sound different from a bullet hitting your abdomen and triggering a staggering amount of blood loss.

The secondary argument that “assault” under Texas law requires physical contact hasn’t been thoughtfully argued in the Texas records available through the public docket. However, the record in the Maryland civil case that Eichenwald brought against Rivello discusses it in detail, and the argument did not fare well. Eichenwald’s complaint describes the science of light and the mechanism of vision; how photoreceptors in the eye react to visible light and the subsequent neurological response. A series of photons hitting the retina and triggering a seizure ultimately doesn’t sound different from a bullet hitting your abdomen and triggering a staggering amount of blood loss. The Maryland Court had no problem finding that this fit the definition of civil battery, drawing on the Texas criminal courts’ interpretation of the Texas assault statute.

Perhaps somewhat predictably, Rivello also argues that the hate crime enhancement itself violated the First Amendment, raising the spectre of the dreaded thoughtcrime. It’s the kind of argument libertarians make because All Slurs Matter, but the Supreme Court ruled decisively against this in 1993 in Mitchell v. Wisconsin. Evidence of prejudicial beliefs is not generally relevant to sentencing unless it is the basis for the motive of the crime.

Unless Rivello ultimately decides to not plead guilty — and with the next hearing put off until January 31, it is possible he may not, all of this would have eventually gone to a jury. The facts laid out in Eichenwald’s civil suit may have been proven untrue, exaggerated or otherwise not credible enough to support a conviction. On December 6, the prosecutor presented a new indictment, replacing the “deadly weapon” charge, with a lesser charge that the assault caused “serious bodily injury” and without the hate crime enhancement. The civil suit in Maryland will likely resume, and a jury may eventually weigh in, but under a considerably lower standard of proof. Whether this prosecution becomes a model for future charges remains to be seen, since any plea will likely cut off any precedent-making opinions, however, a pending appeal of the May denial of Rivello’s petition for a writ of habeas corpus may explain the failure to complete a plea deal, and the Court of Appeals opinion would be the first thorough examination of the issue in a criminal context.

If you can look past the sheer novelty of charging someone with assault for sending someone a GIF, there’s a lesson in here about the malleability of the law. Hacking statutes adapted to include fraud by phishing, and the law is adjusting to punish “swatting” with stiff penalties for those who use phony 911 calls to send armed police to someone else’s home. These adaptations can be clumsy and destructive — the Computer Fraud and Abuse Act, for example, was used to hound activist Aaron Swartz to his death — but they speak to a simple truth: As we find new ways to hurt each other, the law will eventually catch up.

Charles Star is a Brooklyn-based lawyer, a once and future podcaster, and the host of the Continuing Legal Education series Persuasive Authority. He tweets at @ugarles.