Tag: free speech

Mahmoud v. Taylor:  SCOTUS Marks Insidious Path Toward Book Bans

Mahmoud

In finding for the petitioners in Mahmoud v. Taylor, the Supreme Court’s conservative majority opens another path to banning books in schools—administrative hassle disguised as constitutional principle. The petitioners in the case are three families—one Muslim, two Catholic—with young children in the Maryland Central Public Schools (MCPS) where the board elected to include a number of children’s books with gay or trans characters or subject matter. The families asked the school to accommodate an opt-out for their children, which would entail notifying the families when the books would be used in class and allowing their children to skip those classes without effect on their attendance records.

On the surface, the Court’s finding for the petitioners might seem relatively innocuous. At oral arguments, Justice Alito asked “What’s the big deal?” about allowing families to opt out on religious grounds, and then on June 27, he delivered the majority opinion granting the families a preliminary injunction and thoroughly expressed how the Court would ultimately rule if the case were to proceed.

The big deal about requiring a public school to facilitate an opt-out in this case is that it invites both administrative and pedagogical chaos with the likely result that at least some schools will find it easier to simply keep certain titles out of the classroom. That is, of course, the true goal of whatever group is underwriting the Mahmoud case; and while Alito’s opinion does a reasonable job of camouflaging its own religious bias in constitutional lingo, its errors are hiding in plain sight.

The holding turns substantially on the opt-out question, which is reasonable to a point because compelled conduct by the state can abridge the exercise right in certain circumstances. But here, the opt-out context relies entirely upon the Court’s subjective interpretation of the books at issue, molding the facts to fit the conclusion. More broadly, I believe Mahmoud reflects a generally biased First Amendment jurisprudence that is often too eager to conflate religious “exercise” with religious belief. The two are not the same, either legally or pragmatically.

The Books at Issue

The majority finds that the children’s books in this case “pressure students to conform” to views that conflict with their families’ religious exercise rights. It even describes the books several times as “religiously offensive material,” as if this were a clear and universally applicable fact rather than a subjective opinion. While nobody can doubt that a book presenting homosexuality as “normative” can imply that the religious views of the petitioners are wrong, that consideration is both too broad and too narrow an application of “exercise” at the same time. Too broad because “exercise” cannot encompass every belief in every heart, and too narrow because even other religious exercise demands opposing conduct. For example, in discussing the book Prince & Knight, Justice Alito writes the following:

The book relates that “on the two men’s wedding day, the air filled with cheer and laughter, for the prince and his shining knight would live happily ever after.” Those celebrating the same-sex wedding are not just family members and close friends, but the entire kingdom. For young children, to whom this and the other storybooks are targeted, such celebration is liable to be processed as having moral connotations. If this same-sex marriage makes everyone happy and leads to joyous celebration by all, doesn’t that mean it is in very respect a good thing?

On that basis, consider the Episcopalians who, in my town, light up their church every June for Pride while the churches of other denominations do not. Suppose an Episcopalian family in our public school sincerely believes, under this Court’s reasoning, that a children’s book depicting the joyous celebration of a man and woman getting married promotes the view that same sex marriages are morally wrong. That interpretation may appear irrational, but it is identical in logic to Alito’s description above—unless, of course, we allow that the narrow, religious bias inherent to his interpretation is constitutionally sound. Of course it is not.[1]

In a concurring opinion, Justice Thomas highlights the Court’s religious bias by stating that the school “…rather than attempt to ‘weave the storybooks seamlessly into ELA lessons,’ the Board could cabin its sexual- and gender-identity instruction to specific units.” But that reasoning only makes sense to those who insist that gay and trans characters, like the real people they represent, must remain sequestered from everyday American life in order to avoid offending people.[2]

Thus, the Court is blind to the fact that it recommends accommodation for any family claiming religious exercise, even to opt out of what I assume the majority would struggle to describe as “offensive to religious exercise.” And because it would strain logic to square its reasoning, the Court exposes its own religious preferences while feigning a neutrality the Constitution requires. This blinkered view is emphasized by finding that the 1972 case Yoder v. Wisconsin is almost binding precedent for the result in Mahmoud.

Yoder v. Wisconsin is Inapt

In Yoder, the petitioners, who were Amish, sought an exemption to Wisconsin’s law requiring that all residents attend school through the age of 16. The plaintiffs, concerned about many aspects of public high school that conflicted with their religion, won the right to allow their adolescent children to opt out of the school system on the basis that the state law imposed a heavy burden on their religious exercise. I agree with the result in Yoder, but not without acknowledging the compelling fact that the Amish are a unique society within American society, which makes them highly distinguishable from the parents in Mahmoud.

Most importantly, the Amish did not want it both ways. They did not seek to alter a single aspect of the public-school administration or curriculum; they simply wanted their children excused from compulsory attendance. By contrast, the parents in Mahmoud—and all parents similarly situated—want to remain in the public school while demanding a degree of impractical accommodation for their individualized religious beliefs. That the majority overlooks this chasm of distinction between the two cases is consistent with its willful blindness to the pedagogical and administrative burdens its holding fosters.

Notably, the Court fails to recognize that, as a legal matter, the plaintiffs in Yoder sought the equivalent of moving children from public to religious school. This elision of reasoning then allows the Court to opine that the option of religious schools for the Mahmoud parents would be too costly—a consideration that does not sound in Yoder or the Constitution, and one the Court fails to balance with the burden on the school to accommodate any family with any stated belief offended by the curriculum.

Banning Books is Easier than Administrative Hassle

A classroom environment that is welcoming to all students is something to be commended, but such an environment cannot be achieved through hostility toward the religious beliefs of students and their parents.

Nothing in the record of this case justifies the word “hostility” in that sentence, and yet it is a telling choice—one that demonstrates this Court’s willingness to step outside its purview and advocate on behalf of some (though certainly not all) sincerely held beliefs. People who want to be recognized for who they are—gay, trans, etc.—are not demonstrating “hostility” toward religion by that act alone. And while we must admit that hostility is inevitable when views, beliefs, and religions collide, these social animosities are not reconciled by the Court finding without reason that one American’s mere existence is “hostile” to another American’s religion.

Meanwhile, within the scrum and squabble of American life, the public school is obliged to include materials that present the world as it is, not the world that certain parties wish it to be. Yet, the Court states, “[The books] are clearly designed to present certain values and beliefs as things to be celebrated  and certain contrary values and beliefs as things to be rejected.” All media conveys a point of view, and all media are subject to viewer interpretation. The first grader’s introduction to cosmology will categorically reject the views of the creationist, and this reference to science is well-founded because a book depicting gay or trans people as “normative” is a matter of scientific reality.

But under the Court’s reasoning in Mahmoud, shall we divide the class to learn about Galileo the scientist in one room and Galileo the heretic in another? Or shall the public school not merely allow a student to be shielded from proven science or history, but also advance him through the grades when he produces incorrect answers in light of his sincerely held beliefs? In Justice Sotomayor’s dissent, she summarizes the problem thus:

Given the great diversity of religious beliefs in this country, countless interactions that occur every day in public schools might expose children to messages that conflict with a parent’s religious beliefs. If that is sufficient to trigger strict scrutiny, then little is not.

Exactly. The broad spectrum of books, ideas, and facts that may be presented in school, even in the K-5 years, will inevitably contain some material anathema to some family’s sincerely held religious beliefs. In that light, public schools cannot reasonably be burdened with managing a dynamic rubric, tracking which families may opt out from specific lessons and on what basis. As Justice Sotomayor states, “Many school districts, and particularly the most resource strapped, cannot afford to engage in costly litigation over opt-out rights or to divert resources to tracking and managing student absences.”

Thus, in recognizing the impracticality of a complex opt-out policy, the alternative choices would be to allow ad hoc opt-outs without explanation or to remove certain materials from the curriculum, which is undoubtedly the goal of the lawsuit in Mahmoud. Of course, this Court would never endorse all sincerely held beliefs under its reasoning.

An Extreme Hypothetical to Make the Point

I have never liked the Pledge of Allegiance. I consider it a creepy, un-American act of performative patriotism, and the words “under God” not only conflict with my sincerely held beliefs but also undermine that next word “indivisible.” Like many students, I recited the Pledge as a young child, mumbled it as I got older, and didn’t say it at all by the time I was a teenager. But as a parent, knowing every public school would maintain the ritual, should I have sought an opt-out for my children, demanding on the basis of my First Amendment rights that my kids should have been allowed to be tardy every day to avoid mere exposure to the Pledge?

I doubt any court would support that claim, even under the ruling in Barnette (1943), also cited in Mahmoud. There, the Court found for Jehovah’s Witness petitioners who objected to a West Virginia state rule compelling students to salute the flag during the Pledge of Allegiance. The Court agreed with the petitioners’ religious right not to worship a graven image, though of course, the compelled salute also offends the speech right, a broad view of the exercise right, potentially the redress right, and is just plain offensive. But just as Yoder is inapt in Mahmoud, so too is Barnett inapt in my hypothetical desire to have my kid opt out of every morning to avoid the Pledge.

Unless the school compels a specific action other than simply being in the presence of the “offensive material,” the impracticality of my request to allow my kids to be tardy every day should outweigh my personal belief that exposure to the Pledge “harms” my First Amendment right to religious—in this case irreligious—instruction of my children. As stated, sowing impracticality is arguably the aim and result of the Mahmoud case—to implicate so much administrative difficulty for at least some schools that books containing the subject matter at issue are simply removed from the shelves.

A Tradition of Bias in “Exercise” Jurisprudence?

“The dissent sees the Free Exercise Clause’s guarantee as nothing more than protection against compulsion or coercion to renounce or abandon one’s reli­gion,” states the Court. I believe the dissent is right—or should be.

To be clear, I would demote my own “religious” beliefs if First Amendment jurisprudence remained narrowly tailored to “exercise” under a strict textual interpretation. I freely admit that as an atheist, I do not engage in what any ordinary person would call religious “exercise” in the sense that my friends attend places of worship and observe certain rites and practices. In this regard, my sense is that conservative jurisprudence tends to want to encompass belief (though not every belief), which is subjective and intangible in contrast to “exercise,” which entails demonstrable conduct.

While it is reasonable that where the state compels certain conduct, the courts must consider whether such compulsion is an abridgement of “exercise.” But with the possible exception of the Amish and truly cloistered communities, this principle cannot apply to mere exposure to ideas, views, expressions, or events that are inescapable realities of living in a polyglot democracy. Public schools sit squarely in the center of public life, and in school as in the broader community, tolerance of even the offensive is the foundation of domestic tranquility. The family that feels otherwise is not only free, but I would argue obligated, to choose an educational alternative that comports with their chosen forms of intolerance.

Conclusion

The Court’s holding in Mahmoud v. Taylor is not surprising, though I admit I was hopeful that Justice Barrett, who has revealed herself an independent thinker, might have written a nuanced concurrence. Instead, the majority’s opinion offers much to justify those who view the current Court as warped by theocratic sentiment that comes dangerously close to advancing a view of “exercise” that would swallow the establishment clause. It speaks in the language of religious neutrality but articulates a clear preference for certain religious beliefs over others.

[1] Further, Alito’s reference to the joy of the “entire kingdom” is simply bizarre. Does he mean to suggest that if some subjects were illustrated as unhappy, perhaps wearing crosses and unhappy, that the book would no longer “pressure conformity” as the Court maintains?

[2] It is curious how often Justice Thomas expresses a reasoning that many Americans would apply to reject the validity of his own interracial marriage.

Thoughts on the No AI FRAUD Act

The acronym stands for No Artificial Intelligence Fake Replicas and Unauthorized Duplication. Introduced as a discussion draft by Rep. Maria Salazar et al., the No AI FRAUD Act would create a novel form of intellectual property in direct response to the use of AI to “clone” a likeness. With parallels to right of publicity (ROP) law, combined with a copyright-like, transferable ownership of rights, the No FRAUD bill is sweeping as currently proposed, citing a range of conduct, from deepfakes to create and distribute nonconsensual intimate material, to cloning an actor or singer’s voice for commercial exploitation.

In short, the law would prohibit replication of anyone’s likeness without permission, and then, the purpose of the unlicensed replication would determine the nature of the harm and available remedies. Although the intent of this bill is well-founded in addressing certain harms to individuals like performing artists, the bill’s current scope, combining permission and intent, and seeking to remedy a broad range of potential harms, raises some difficulties.

Permission vs. Intent

As discussed on this blog, Cyber Civil Rights Initiative (CCRI) leaders, Danielle Citron and Mary Anne Franks, have advocated a permission-based, rather than an intent-based cause of action for the nonconsensual distribution of intimate material, commonly referred to as “revenge porn.”[1] The CCRI has worked hard to demonstrate that merely distributing this material without permission is criminal, regardless of the intent to cause harm, and this makes sense in response to the nature of the conduct. But advancement in AI replication presents a unique challenge to the principle that permission is universally the signal event triggering liability.

No question that the guy who shares intimate material of an ex, a girl at school, a work colleague, etc. should be held accountable solely on the basis that he lacked permission, and this is valid whether the visual material is real (i.e., photographic) or synthetic (i.e., produced with an AI). First Amendment defenses for this type of conduct have reasonably failed when various parties challenged the constitutionality of several of the “revenge porn” laws, now in force in 48 states. The permission principle in harassment-based complaints should not be disturbed by the No FRAUD Act, and Congress should likely avoid any temptation to combine the intent of this bill with current or developing federal prohibitions for “revenge porn.”

But the use of AI to replicate a likeness cannot so broadly be proscribed for all purposes. As the Motion Picture Association notes in its response to the bill, “… any legislation must protect the ability of the MPA’s members and other creators to use digital replicas in contexts that are fully protected by the First Amendment.” Notwithstanding contractual conflicts that may arise in the future among performers and producers, the MPA is right to note that AI cloning for expressive purposes that constitute protected speech should not be swept into the scope of legislation like the No FRAUD Act.

The example I often use with friends and colleagues is the movie or TV series that casts a public figure (let’s call him Donald Trump) in a light he might not appreciate. Expressive portrayals—factual, dramatic, or sardonic—of public figures are paradigmatic forms of protected speech, and this principle should not be altered by vesting new IP rights in persons, premised solely on the use of AI models to achieve the same expressive results historically created with old-school “movie magic.” In other words, Trump should no more be empowered to enjoin the use of his AI likeness to comment upon his role in society than he would have been allowed to stop Saturday Night Live from producing the sketches featuring Alec Baldwin.

Vesting new “likeness IP” rights in all persons is a reasonable response to the potential harms—both financial and reputational—that may be caused to millions of creative professionals and ordinary citizens. But these goals must allow for expressive uses of AI replication, adhering to longstanding contours protecting the speech right and controlling limits like libel and defamation.

In another example, imagine a documentary about the events of January 6th that includes reenactments based on witness testimony describing the actions of the former president during the attack on the Capitol. The documentary producer’s legal responsibility to balance faithful reportage with reasonable expressive license should not be altered solely on the basis that the film may use generated AI likenesses of Trump, Meadows, Hutchinson, Ivanka, et al. rather than actors to produce the same scene.

With a documentary film, one can imagine a legal requirement to inform the viewer that what they are seeing is an AI-generated reenactment (rather than, say, someone’s cellphone recording), but no such requirement should apply to a non-documentary audiovisual work. In either case, misinformation is already thriving in a dangerously blurry space between fact and fiction and a decline in media literacy fostered by the ability of any individual to distribute any fragment of material without context on a public platform. In other words, the documentarian can do her job right, but she cannot stop every potential bad actor from taking a segment of that reenactment and publishing it in a manner that changes its context and feeds a false narrative. (Thank you to all those who celebrated “remix culture” as a rejection of copyright law.)

AI Generated Likeness and the Misinformation Problem

Regarding the documentary example, the preamble of the No FRAUD working draft cites the use of unauthorized likenesses for the purpose of disinforming the public about matters of a factual or newsworthy nature. And while this is indeed a problem that AI tools will be used to exacerbate, it is a challenge that should be addressed separately from the intent and sweep of the No FRAUD proposal. Congress must recognize that the capacity to cause widespread, societal harm through disinformation by means of AI likeness replication is too hazardous and too rampant to remedy on a case-by-case, civil-liability basis. And that’s even if the producer of the fake is operating within the reach of U.S. law rather than, say, China or Russia.

Further, there is a legal tension created by comparing and contrasting the entertainment satirist with the news provocateur who trades in misinformation, as we see in the claims of slander against Tucker Carlson of FOX News in 2020. Arguing that “no reasonable person” would truly believe everything Carlson says, Fox’s attorneys successfully defended the network against any cause of action, and while this may be a reasonable finding based on the facts presented, it is one of many examples in which the lines separating opinion, criticism, satire, and information have been blurred beyond relevance vis-à-vis public perception. Now add the ability to cheaply recreate anyone’s likeness with sophisticated AI, and how far can a “news” organization push the line under the same protections that apply to the satirical filmmaker or The Daily Show?

Of course, my references here to Trump and Carlson allude to a much bigger, underlying problem—namely that Congress is not going to effectively address the use of AI likeness for misinformation unless Members on both sides can agree to mutually define fact and fiction. Not to say that Dems never cling to narratives built on some rather shaky foundations, only that it’s hard to compete with the existential lies of whatever the hell the GOP has become in the thrall of Trumpism. That and no American political figure has ever proven to be so thin-skinned in response to criticism.

For the moment, my own view is that a bill like No FRAUD should be narrowly tailored to vest new “likeness IP” in persons to proscribe compelled speech and commercial exploitation that meets standards akin to unfair competition. Further, because such uses require a court to weigh the intent of likeness replication, this new right should not preempt or alter anti- “revenge porn” legislation, where lack of permission must remain the sole cause of action. While I see the potential of this bill to protect various artists and non-artists with novel rights against novel harms, difficulties like those addressed in this post must help define the contours of those new rights.

[1] “Revenge porn” is a problematic term because it implies intent to harm, which is anathema to the principle that lack of consent is the cause of action.

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How the Supreme Court Made Life Harder for Victims of Cyberstalking

It was such a busy Summer that I never got a chance to write about the Supreme Court’s June decision in the cyberstalking case Counterman v. Colorado. The story caught my attention when legal scholar and president of Cyber Civil Rights Initiative Mary Anne Franks tweeted, “the Supreme Court has just decreed that stalking is free speech protected by the First Amendment if the stalker genuinely believes his actions are non-threatening. That is, the more deluded the stalker the more protected the stalking.” [1] The key facts as summarized in the opinion are as follows:

Billy Counterman sent hundreds of Face­book messages to C. W., a local singer and musician. The two had never met, and C. W. did not respond. In fact, she tried repeatedly to block him, but each time, Counterman created a new Facebook account and resumed contacting C. W. Several of his messages envisaged vio­lent harm befalling her. Counterman’s messages put C. W. in fear and upended her daily existence: C. W. stopped walking alone, declined so­cial engagements, and canceled some of her performances. C. W. even­tually contacted the authorities. The State charged Counterman un­der a Colorado statute making it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.”

Read accounts of people who have been cyberstalked, and the stories are often harrowing. The content of the stalker’s communication doesn’t even have to be threatening, though it usually gets there. Just knowing that somebody (usually a man) has selected you (usually a woman) as a target for unwanted attention can be unnerving to the point that it can have life-altering consequences including general anxiety, fear of movement, fear of speech, job and opportunity loss, and even suicide. That can be true even if the stalker doesn’t take or induce any action outside cyberspace, though many incidents that begin online eventually become physical and violent contact.

To be clear, no member of the Court defended (nor do I believe would defend) Counterman’s conduct. The question addressed was what legal standard should have been applied in the enforcement of the Colorado law to determine the threshold where the defendant’s speech is no longer protected by the First Amendment. At trial, the state court applied an “objective” standard to determine whether the content of the speech at issue would be perceived by a reasonable observer as a “true threat,” a term of art that encompasses one category of unprotected speech—threats of violence.

The Supreme Court majority held that Colorado erred by not applying a “subjective” standard, under which it must be shown that the defendant intended to threaten plaintiff or had reason to know that the speech at issue was threatening; and the Court further held that it would be sufficient to show that a defendant recklessly disregarded the threatening nature of his communications. Hence, Dr. Franks’s observation that the more unreasonable the cyberstalker the more likely his online harassment will be protected speech. And how many cyberstalkers are reasonable?

Sound Dissent by Justice Barrett

Noting that I do not have a deep knowledge of the relevant case law, Justice Barrett’s dissent (joined by Thomas) reads as the better argument—both as law and common sense. The dissent argues that the majority singled out “true threats” in this case for preferential treatment to fashion a “Goldilocks decision” (i.e., inventing a middle ground that is neither necessary nor consistent with precedent). “True threats do not enjoy First Amendment protection, and nearly every other category of unprotected speech may be restricted using an objective standard,” the dissent states.

The extent to which the Court departs from precedent is difficult to comment upon without studying all the underlying First Amendment case law, but Justice Barrett’s focus on “context” rings soundly as a rationale that an objective standard can maintain the balance between protected and unprotected speech. “…the statement must be deemed threatening by a reasonable listener who is familiar with the ‘entire factual context’ in which the statement occurs [citation omitted]. This inquiry captures (among other things) the speaker’s tone, the audi­ence, the medium for the communication…” Barrett writes.

Indeed, any target of online stalking knows instinctively that words as seemingly unthreatening as You look lovely today may indeed be threatening if, for example, the statement comes from a stranger or an angry, obsessive ex-husband or boyfriend. Weighing the legality of speech without context—not just online, but anywhere—is a half-baked analysis. For instance, “Vote for me or you won’t have a country anymore” delivered on the stump is protected hyperbole, while “Fight like hell, or you won’t have a country anymore” delivered to an angry mob ready to march to the Capitol is considered by many reasonable observers to be incitement.

Justice Barrett highlights the Colorado cyberstalking statute (and notes that other states have similar laws) as an example of a contextual, objective analysis in which juries are instructed to weigh the defendant’s communications in a five-factor test to thoroughly understand the nature of the speech.[2] “Each considera­tion helps weed out protected speech from true threats,” she writes, and again, this strikes me as the more rational approach to address the alleged crime at issue.

Further, the dissent argues that the majority leans heavily and improperly on the 1964 case New York Times v. Sullivan. There, the Court held that it is necessary to prove that a defendant showed reckless disregard for the known falsity of a statement in order for a public figure to obtain damages relief for libel or defamation. But citing subsequent case law from 1974 and 1985, Justice Barrett argues that Sullivan applies to public parties while, “A private person need only satisfy an objective standard to recover actual damages for defamation. And if the defamatory speech does not involve a matter of public concern, she may recover punitive damages with the same showing.” [Citations omitted]

Assuming the dissent is correct about the majority’s inapt reliance on Sullivan in this case, the public/private distinction is significant because a typical cyberstalking incident involves ordinary citizens rather than public figures—let alone “matters of public concern.” If someone tweets at Sen. Tuberville and calls him a sniveling, treasonous, ignorant weasel who should have been aborted, that is paradigmatically protected speech. Elected officials volunteer for public scorn as a bedrock principle of the First Amendment,[3] and it would be an offense to two of the amendment’s freedoms if it were sufficient to find some cohort willing to call that tweet a “true threat.” Thus, evidence of the speaker’s intent and ability to cause violence must be present before his speech may be considered unprotected.

By contrast, the cyberstalker who tells his target that he wishes she were dead or writes that her death is imminent or that he hopes she gets raped, etc. may not express a “true threat” by words alone, but in context, the messages can have the same effect as a “true threat.” Even facially innocuous communication can be used to make a private individual feel threatened, especially when she has no idea who she’s dealing with, or what his intent might be.

By the time the target of a cyberstalker turns to law enforcement for relief, she has usually suffered substantial harassment, fear for her safety, and some form of irreparable damage to her liberty and/or financial interests. In Counterman, the Court compounds these injuries by elevating the standard for punishing an alleged cyberstalker to one in which a jury must read the mind of the defendant to find that he both understood and recklessly disregarded the threatening nature of his communication. This sets the bar higher than necessary in cases where the speech at issue is of no public interest other than, in most cases, making it stop.

The Tech-Utopian Concept of the Speech Right Lives in this Case

Unsurprisingly, the Electronic Frontier Foundation filed an amicus brief for the petitioner in Counterman stating, “This Court should make clear that the definition of a true threat necessarily includes a subjective speaker’s intent to threaten.” True to form, the EFF inflated its brief with praise for the scope, scale, and cultural significance of social media; and it cites examples of violent terms or rhetoric, which may be interpreted as threatening but may still be protected. Notably, no variant of the word stalking appears in the EFF’s brief.

All that general discussion about the value of social media as an alleged free speech machine may be true in certain contexts, but it should be seen as irrelevant in regard to cyberstalking. Because here’s where the “digital rights” organizations err, and where the Court has now made matters worse:  cyberstalking is action more than it is speech. It may take the form of words and/or images, but the ongoing contact itself is intended to cause suffering, and very often, it succeeds in doing just that. As Dr. Franks put it, quoted in Reuters shortly after the decision:

It is deeply disappointing that the Supreme Court has chosen not only to allow stalkers to act with impunity, but to do so on the basis that stalking is free speech protected by the First Amendment. In doing so, they have sentenced victims of stalking to potentially lifelong sentences of terror, as well as increasing their risk of being killed by their stalkers.

If you or anyone you know is a target of cyberstalking the two best resources I know are Cyber Civil Rights Initiative  and the Carrie Goldberg Victims’ Rights Law Firm.

[1] Dr. Franks also offered some sharp comments about the joking around at oral arguments, reflecting insensitivity to the dangers and traumas experienced by targets of cyberstalking. https://twitter.com/ma_franks/status/1648724142198226946

[2] (1) the statement’s role in a broader exchange, if any, including surrounding events; (2) the medium or platform through which the statement was communicated, including any distinctive conventions or architectural features; (3) the manner in which the statement was conveyed (e.g., anonymously or not, privately or publicly); (4) the relationship between the speaker and recipient(s); and (5) the subjective reaction of the statement’s intended or foreseeable recipient(s).

[3] This is a reference to Sen. Tuberville’s holding up military promotions to protest the DOD’s healthcare policy vis-à-vis abortion.

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