Reportedly, my grandfather was mean. So mean, that when he was in first grade, so the story goes, he killed his teacher with a baseball bat. Whether true or not I don’t know, but at a young age it taught me one important lesson in life: Anything can be abused in the wrong hands. John Rayne Rivello, the man accused of the attempted murder of writer Kurt Eichenwald, used a GIF image. However, this case raises serious questions, related oddly enough, to the First Amendment.
Op-Ed by C J Oakes
Texas Grand Jury Agrees to Aggravated Attempted Murder for Rivello
This is a case to watch. Rivello used Twitter to transmit a GIF file to Eichenwald, a journalist for Newsweek. The GIF was similar to another used by an unknown group of hackers in 2008. In that case, the target was the Epilepsy Foundation. The result was that many of the members visiting the site suffered seizures, which was the intent of the GIF used.
A GIF, or Graphic Interchange Format, can be used to create simple animations. In this case, the animation features strobe lights which are known to trigger seizures in people with epilepsy, such as Kurt Eichenwald.
Intentionally causing a person to suffer a seizure is no harmless prank. An epileptic seizure has the potential to cause death. So although the hackers in 2008 were never identified, the act was a cybercrime. Rivello likewise is facing federal cyberstalking charges in relation to the Twitter attack on Eichenwald.
Steven Lieberman, attorney for Mr. Eichenwald compared the attack on his client to anthrax or a bomb sent by mail–although death was not the result, the attack could have easily been fatal and was likely the intent.
But intent is a tricky matter, especially in this case. Why?
First Amendment Freedom of Political Speech and Personal Attacks
Without a doubt, Rivello as seeking to make a statement. One thing is clear: Political motivations were behind his attack on Eichenwald. This is common for journalists, especially those who handle highly-charged issues. Death threats are almost a daily occurrence for many journalists.
But at what point does harassment cross over the First Amendment line to become a crime?
That will be the core issue of the upcoming trial.
Defense attorney Tor Ekeland told NBC News that if he were Rivello’s attorney, he would use a First Amendment argument in the case. He noted that the federal cyberstalking statute is already coming under fire by numerous First Amendment advocacy groups and that the law is shaky at best. Yet, the Texas Grand Jury decision to indict such as it did raises still more First Amendment issues. Can Speech Kill is the question; furthermore, was sending the animated GIF, clearly politically motivated to trigger an epileptic seizure in Eichenwald, protected as “speech?”
Yelling Fire in a Crowded Theater?
Nearly a century ago, the United States Supreme Court tackled the first in an on-going argument related to drawing a line between protected speech and “clear and present danger.” Schenck v. United States was heard in 1919. It was in the opinion written by famed judge Oliver Wendell Holmes where the example of yelling fire in a crowded theater was first applied. In making application, the court ruled against Schenck. Shenck had been arrested for creating and distributing flyers advocating against conscription (the draft) during WWI.
Today, such an act seems paltry and few would agree with the Court’s decision in that day. In fact, in 1969 the U.S. Supreme Court reversed that decision and ruled such actions to be protected under the First Amendment. Then, in the 1980s, the Court under William Rehnquist turned the issue back in the direction of the 1919 Court, but not quite as extreme.
So, slowly, the U.S. Supreme Court is locating just where the line between Free Speech and harmful speech rests. The case of John Rayne Rivello may well become another ruling in that long line of decisions. That makes this a case to watch.
Just be sure to avoid the animated GIF.