Yesterday we had Trial by Myspace. Today Scott has Assault by Twitter in the First Degree, riffing off an article by a lawprof whose theory is that by sending a link to an epileptogenic video to a journalist, the sender committed an assault: “intentional creation of a reasonable apprehension of imminent bodily harm.” An assault by threat, as we’d say in Texas — a class C misdemeanor, fine-only stuff.
There is nothing new or particularly interesting about online assaults by threat — any online threat could be an assault, provided that there is some imminence. It happens every day.
But this assault on the journalist is interesting for another reason. It’s not only a threat to commit imminent harm — indeed, it’s arguably not even a threat to commit harm — but an attempt to cause bodily injury. That’d be a class B misdemeanor in Texas, with a maximum 180-day jail sentence and $2,000 fine. It’d be a third-degree felony — up to 10 years in prison — if the assailant intended to cause serious bodily injury.
Weaponized tweets, resulting in physical harm, are cyberpunk stuff: long-distance brain hacking. The brain has a tremendous deal of influence over how we feel, and people can manipulate our brains with electronic messages. (For a really-bad-case scenario, see the chapter on electronic slot machines in Matthew Crawford’s The World Beyond Your Head).
I can’t think of a good reason an electronic message sent with the intent to cause an epileptic seizure should not be treated like any other attempt to cause bodily injury.
Granted, assuming the twit sent to Eichenwald satisfied all the elements of an offense, it’s still a highly limited situation. It would only apply to someone who suffers from epilepsy, and even then, there is no certainty that a video will, in fact, do harm.
I’m not convinced this is correct. For our attempted-bodily-injury analysis, it doesn’t matter whether the hack is certain to succeed. And any rule that applies to epilepsy might just as well apply to some other brain-body disorder.
Suppose that the intended injury is not a seizure but a panic attack. It’s no less real to the person experiencing it than a seizure. Why would we not treat an electronic message sent with the intent to cause a panic attack like any other attempt to cause bodily injury?
How about a suicide attempt? Shall we treat an electronic message sent with the intent to cause someone to commit suicide like an attempted murder?
Speaking of attempted murder, check this out when you have an hour to spare:
How about a message sent with the intent to trigger someone’s PTSD? Why punish an attack on an epileptic but not on the PTSD sufferer?
Okay, what about “friggering” speech? Is speech that is intended to cause someone physical distress an attempted assault? (Does it matter whether you believe that the harm is frivolous?)
Does it matter whether the communication could not cause the harm? Nope: What is required is the intent to cause bodily injury. If that’s what the sender of the message intended, he has committed the crime:
A person commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended.
All of this is distinguishable from an assault by threat. To commit the attempted assault, the assailant doesn’t threaten harm, but invites it. The epileptogenic video is an interesting special case, but any attempted assault on Twitter is attempted assault.