Fixing University Justice

In reaction to the U.S. Department of Education Office of Civil Rights’s Dear Colleague Letter of April 4, 2011, American universities have eliminated due process for students accused of sexual misconduct.

The Dear Colleague Letter does not relieve public universities of their obligation to provide due process to accused students. So public universities are caught between the anvil of the Dear Colleague Letter and the hammer of a civil-rights lawsuit.

Private universities are not state actors, and do not have the same due-process obligations: They may kick students out for any reason or for no reason. But they are obligated not to defame students, and publishing (to other universities, for example) false allegations of sexual misconduct is defamation. A university that is required by law to report findings of sexual misconduct on students’ transcripts probably has a qualified privilege to do so (it is privileged unless done with actual malice, that is, reckless disregard for falsity), but a private university that is not required to do so but does is betting heavily that it is right.

But, you might think, the standard for colleges to find sexual misconduct — a preponderance of the evidence — is the same as the standard in a defamation suit. So the school’s finding that  sexual misconduct occurred bars the disciplined student from suing for defamation.

Except that the school is not a court, and isn’t providing due process anyway, so the school’s determination means next to nothing. If the school’s process is inadequate, and the school finds the student liable, the school still bears the risk of being wrong.

How does liability play out?

X and Y are students at Arborio University. X falsely accuses Y of sexual assault. Rather than go to the police, she complains to the university’s office of PseudoJudicial Programs (“PJP”). PJP does an investigation of sorts, but mindful of the Dear Colleague Letter’s admonition that “schools should ensure that steps taken to accord due process rights to the alleged perpetrator do not restrict or unnecessarily delay the Title IX protections for the complainant,” and believing that women never make false allegations of sexual misconduct, PJP is careful not to provide Y with too much process. It finds Y liable, expels him, and notes the reason for the expulsion on his transcript.

Y applies to several other universities, all of which reject him when they get his Arborio University transcript. His life is wrecked. In desperation, Y gets a lawyer with what remains of his college fund. The lawyer investigates, and finds a Snapchat conversation between X and a mutual friend of X and Y in which X admits that she made the allegation up. Y files suit against Arborio University.

Y v. Arborio 

Arborio has a) published an unprivileged statement about Y; b) that is defamatory. These are the elements of defamation, and Y’s damages are huge.

The fact that PJP performed an investigation that satisfied it that sexual misconduct had occurred is not relevant because actual malice is not an element of Y’s defamation suit. When Arborio published a statement that, if untrue, was defamatory, it assumed the risk of PJP getting it wrong. Arborio writes Y a big check, reducing its huge endowment by only a little. The harm to its reputation when the suit is publicized is much more damaging.

Two things would likely have kept Arborio from having to write a check. First, a higher burden of proof: The higher the burden, the less likely the university would have made this type of error. And second, more process for the accused student: If Y had been able to have a lawyer investigate and present his case, it also would have reduced the likelihood of PJP erring on the side of liability. If Arborio had not found Y liable, it would not have defamed him.

What about X?

X, however, still defamed Y by making the false report. Her false report was not privileged (even if it was qualifiedly privileged, she acted with actual malice because she knew that Y had not sexually assaulted her). But if Arborio does not find Y liable, Y will get over it. His damages are not inconsequential, but they are not huge, and a defamation suit against X is probably not worthwhile. Besides, PJP will certainly find some reason to retaliate against Y if he files a defamation suit against X — they’ll call the suit retaliation against X (which it is, but societally sanctioned retaliation — people generally consider it okay to seek to punish people for defamation). So if Y is not found liable, X is probably safe from suit.

If Y is found liable for a sexual assault that didn’t happen, though, it’s Katy bar the door. X is a defendant in the defamation suit, along with the university or alone. (Even if the university is public, with sovereign immunity, X has no such immunity.)

The risk is real.

False allegations of sexual assault on college campuses happen. The university cannot control whether allegations are true or false. It is obligated to use a preponderance-of-the-evidence standard to evaluate complaints. That standard creates a greater risk of erroneous findings of liability than a higher standard (clear and convincing evidence, for example) would. 

When the university takes into account the complainant’s Title IX protections in determining the process due to the alleged perpetrator, that process cannot help but be curtailed. Less process for the accused creates a greater risk of errondous findings of liability than more process would. And erroneous findings of liability are potentially costly to the university and the accuser.

And that’s the good news.

 It would not take many universities and complainants being held dearly liable in civil court for false accusations to make an impression on others who might be tempted to make false complaints, and other universities that might be tempted to favor the accuser over the accused.

Right now universities have no great motivation to treat accused students fairly. Civil liability changes that. Universities caught between the hammer of civil liability and the anvil of the Dear Colleague Letter are going to find a way out, and the easy way out is to provide  the accused student with more rights that might keep him from being wrongly expelled.

I’d take that case.

The plaintiff who sues the accuser and the university for defaming him needs three things: He needs to be actually innocent, because that’s the point. He needs to have the will for a protracted fight, because filing the lawsuit is going to call attention to him. And he needs deep pockets, because this is not a case a rational lawyer is going to take on a straight contingent-fee basis.

(It would help if he also had witnesses who could prove his innocence, but that can come later.)

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Foundations and Empire

Atlanta public radio had a story on Jason Clark’s and my triumph in the Georgia Supreme Court on Monday. They reached out to neither Jason nor me, but to a “Hollie Manheimer, executive director of the Georgia First Amendment Foundation.

This “Georgia First Amendment Foundation” was nowhere to be seen when Jason and the Client and I were actually litigating the unconstitutionality of Georgia’s insulting-a-bus-driver statute. They didn’t write the brief, they didn’t argue it, and they don’t know squat about it. I think it’s fair to say that Ms. Mannheimer didn’t even read the opinion before commenting:

The problem is that it’s so over broad. Who decides who’s offended? Who decides who’s disruptive?

Yes and no. It is overbroad, but the problem is not who decides who is offended or disruptive. The problem is that the statute forbade critical speech even if it was not disruptive (another statute forbids disrupting school; that statute is content neutral). The problem is that we are allowed to offend each ther, and this right extends to upbraiding agents of the crown.

The Guys to See 

Jason Clark is not hard for the media to find. I’m in trial, but Zulema and Maria are still answering the phones, so I’m not hard to find either. Of course, we don’t call ourselves a “First Amendment Foundation” (hmm … yet) so our First Amendment credentials are suspect?

Aw c’mon now, media: Nobody knows and can talk about the case like the lawyers who won the case can. Not the lawyers who lost, not other experts, and damn sure not ignorant hacks who can’t be arsed to read the opinion before commenting.

And lawyers: Have some damn self-respect. You don’t have to answer questions that you don’t know the answers to. If they ask you about a case you’re not familiar with, “I’m not at all familiar with the case. Let me read the opinion and get back to you” is an acceptable answer. 

Fundamental Ignorance 

There’s a deeper problem, though, than Manheimer’s failure to read the opinion before commenting: Her question “who decides who’s offended?” betrays a fundamental ignorance of the way free speech works. Who decides who’s offended? Who cares? Even if there were some universally objective way to determine whether someone is offended, we are permitted to offend each other without government sanction.

This is not the first time a putative defender of the First Amendment has shown dangerous ignorance of the topic, and I’m sure it won’t be the last time. Look at the ACLU, which for a time defended civil liberties, but now is willing to sacrifice the civil liberty of free expression on the altar of privacy. 

“Violations of privacy” are not a category of unprotected speech, and never should be — everything we say about someone that they don’t want us to say is either defamation or a violation of privacy. In the ACLU’s Orwellian hellscape in which we can be punished for violating others’s privacy, nobody can speak of anyone else without their consent; the newspaper is limited t0 printing press releases.

Cohen v. California

 What about Cohen v. California, where the United States Supreme Court suggested that speech that invades “substantial privacy interests … in an essentially intolerable manner” is unprotected?

The “substantial privacy interests” of Cohen are not the right of the subject not to be the subject, but rather the right of the recipient not to receive the communication. As the Supreme Court noted in Organization for a Better Austin v. Keefe — while upholding people’s rights to publicly criticize a small businessman less than three weeks before Cohen v. California — there is an “important distinction” between “attempting to stop the flow of information into [one’s] own household” and trying to block the flow of information about oneself “to the public.”

So watch for that “substantial privacy interests,” from those who should know better. From prosecutors and “experts,” of course, but also from :courts

We agree with the State that substantial privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt. 

(That’s from the Texas Court of Criminal Appeals’ dicta in Thompson, in which it held a portion of Texas’s Improper Photography statute unconstitutional. Fortunately the constitutionality of the other portion of the statute was not at issue in Thompson, so that statement, citing Cohen, is not binding on other courts nor, indeed, on the CCA itself.)

Question Everything

 “Offensive” and “privacy” are two catchwords that tend to wire around the First Amendment in the minds even of people who are supposed to be protecting our free speech. There are probably others. If you wonder whether a statute forbids speech that is protected, bear this in mind: Everything that does not fall into a category of historically unprotected speech is protected. After more than 200 years the Supreme Court is very reluctant to recognize more such categories. So far they have recognized:

  • Advocacy intended, and likely, to incite imminent lawless action;
  • Obscenity;
  • Defamation;
  • Speech integral to criminal conduct;
  • So-called “fighting words”;
  • Child pornography;
  • Fraud;
  • True threats; and
  • Speech presenting some grave and imminent threat the government has the power to prevent — but this is not a catchall: “a restriction under the last category is most difficult to sustain.”

 If it’s not on that list, you can bet that it’s protected.

Posted in Appeals, Free-Speech Litigation, media | 4 Comments

Alice’s Adventures in Lovett Hall

I just finished assisting a Rice University student who had been falsely accused of sexual misconduct and was facing campus discipline. He had been “rusticated” — ordered not to come on campus without permission except for classes — causing him to fail an exam (first the execution, then the trial!) and he could have been expelled, with a permanent mark on his college record.

 

Did I mention he was falsely accused? Fortunately he had documentation showing that the complainant’s story was not altogether true.

A Digression

You young’ns are communicating via Snapchat, which doesn’t automatically keep a record of your communications. If you have communications with someone about having or not having sex, keep those Snaps. If you have communications at or around a time when you might be accused of sexual misconduct, keep those messages. It would really suck to have someone entice you over to her room, and then not have a record of the conversation when she later claimed that you had come over uninvited and misconducted yourself sexually. Want to be extra super safe? Record audio every time you are alone with an MOS / MSS / MPS.

Kafka Would Be Impressed 

There is a definite “we [whack!] are [whack!] doing [whack!] this [whack!] to [whack!] you [whack!] for [whack!] your [whack!] own [whack!] good” attitude about the proceedings. 

An accused student can have a “support person” in meetings with the Office of Student Judicial Programs, which decides such matters, but the support person cannot speak for the accused student. Rice’s rationale is that they treat students like grownups, and want them to speak for themselves. But any grownup facing possible reputation-destroying career-ending consequences is going to hire a mouthpiece to speak for her.

Rice has an inquisitorial pseudojudicial system. The staff member who will make a determination of whether you have broken the rules (and how you should be punished) is the staff member who “investigates” the matter and takes your and the complainant’s statements.

If you are accused of sexual misconduct, “You are entitled to the assistance of a Title IX Resource Navigator through the Office of Sexual Violence Prevention and Title IX Support. The Resource Navigator can answer questions about the disciplinary process and offer support to students that are involved in cases where sexual misconduct is at issue.”

Want a good laugh? Ask your “Resource Navigator” what her ethical duties are to you. (I quote: “Huh?”) She has none: She is not there to navigate you to where you think you need to be, but to navigate you to where SJP decides you need to go.

Mao in the Rice Sallyport 

Due process? Bitch, please: After you tell us your side, we’ll tell you what the allegations are. Don’t talk to potential witnesses, but tell us who the potential witnesses are and we’ll talk to them ourselves.

Cross-examination? Fuhgeddaboutit. You wouldn’t want your accuser to be made uncomfortable, would we (whack!)?

Discovery? Only grudging: The complainant had given a recorded statement, and the SJP staff were reluctant to give the accused a transcript of those portions of the statement that they would be considering in making their decision.

Alls well that ends well, but spending time with Rice Pseudo Judicial Programs is a keen reminder of the inferiority of the inquisitorial system of justice compared to the Anglo-American adversary system. But, hey, those are Western values. And obviously Rice’s administrators know better than a thousand years of Western civilization.

Everything is Awesome 

This is funny: SJP only started recording meetings last year, students will “not have the right to record meetings,” and

If students believe SJP is bad, they may decline to seek out SJP as a resource. This is a risk Rice students should not accept, and a risk students should actively work to guard against.

Or you could acknowledge the truth — that SJP is bad — and fix the system that you have broken. Maybe start by reincorporating the right to representation, and if that doesn’t cause the University’s descent into chaos, work your way up to confrontation.

[Whack!]

Posted in Uncategorized | 11 Comments

Free Speech in Georgia: Alive but Unwell

After the Georgia Supreme Court’s disappointing First Amendment showing in Scott v. State, upholding the state's dirty-talk-to-minors statute (for the children!) despite the Free Speech Clause (the Ninth Circuit Court of Appeals and the Texas Court of Criminal Appeals have both struck functionally identical statutes, and we have filed a cert petition in Scott citing this split in authority), I was somewhat cheered this morning to see that Georgia had in West v. State held unconstitutional section 20-2-1182 of the Georgia Code, which made it a crime for any person other than a student to “continue[] to upbraid, insult, or abuse any public school teacher, public school administrator, or public school bus driver in the presence and hearing of a pupil while on the premises of any public school or public school bus” and to fail to leave the premises after being told to do so by the offended party.

Here is the opinion.

Posted in Free-Speech Litigation | Leave a comment

No Good Deed

Bad Review for Lawyer Not Giving Free Advice

The subject of the review (call her “Jane”) doesn’t advertise free consultations. Suzanne called her wanting free legal advice. Jane didn’t give the free advice. Suzanne did not like that. Suzanne punished Jane.

Jane didn’t give Suzanne an answer (or at least didn’t give Suzanne the answer she wanted to hear); Topek and Topek spent 45 minutes on the phone with Suzanne, who never intended to hire them, and gave her the answer she wanted to hear. I wouldn’t criticize them for that, and even if I would, I sure don’t have room to — I have spent a whole lot of time on the phone trying to help people (because to me it feels good to help people) who never intended to hire me.

But I haven’t yet had someone post a negative review online because I didn’t provide satisfactory free advice. And Suzanne got the idea somewhere that lawyers must either “give an answer without payment” or “suck and be money hungry.” And one plausible explanation for how Suzanne-class people got that idea is that lawyer-type people spent too much time on the phone trying to help them for free.

Suzanne punished Jane for not giving Suzanne what Suzanne had been led (by people other than Jane) to expect. Did Suzanne reward Topek with a positive review at the same time? Of course not. It seems to me that if we measure Suzanne’s satisfaction with this transaction by the average number of stars she handed out to the other participants, she was very unhappy with it.

The more people pay their lawyers, the happier they are with the service. If Suzanne hadn’t received (or at least hadn’t expected) free advice from lawyers in the business of advising people for money, she might have come away happier. 

And really, isn’t that all any of us want? 

Posted in Uncategorized | 1 Comment

Glory Hounds

Bunin at Thermopylae 

Alex Bunin is a badass, to begin with. He is a talented administrator, a great lawyer, and a kind and humble human being. Whoever nominated him as a candidate when Harris County was considering forming a public defender’s office deserves a medal.

The Dispute over Writs

Nobody but Judge Mary Lou Keel knows how the dispute between Keel and the Harris County Public Defender’s Office really began, but it burst out in July of 2014 when Keel wrote a letter to Mac Secrest, the chairman of the Harris County Public Defender Board of Directors complaining about the Public Defender’s Office “seeking to represent people without court appointment and offering legal services to people who have hired attorneys and have not been found indigent” in post-conviction writs.

The technical word for this is “bullshit”: The PD’s Office was not working on any cases without appointment. It was not seeking to represent people without court appointment. (It was, however, seeking without court appointment to represent people. But Keel’s error is larger than an ambiguous antecedent.)

What the Harris County Public Defender was doing — at the request of the Harris County District Attorney’s Office — was  contacting people who might be entitled to habeas relief in three classes. 

I’ll let Bunin explain, from his memo responding to Keel’s allegations in 2014:

The first … involved the need to notify and advise defendants that evidence, in a case for which they had been convicted, was compromised by some kind of error or misconduct.

The second … involved defendants who pleaded guilty to controlled substance crimes before a lab had tested the alleged contraband. The later testing resulted in findings that the item was not a controlled substance at all, was a different controlled substance or was of a quantity less than necessary to have proven the charged offense.

The third … resulted from the striking down of a section of a criminal statute by the Texas Court of Criminal Appeals.

Therefore, our representation in these cases does not diverge from our mission. The judges have discretion to appoint us or not. No better illustration of this is that we have no such cases in Judge Keel’s court because she has chosen not to appoint us.  

Here’s a dirty little secret: If people have gone to prison because Texas has screwed up, when Texas’s screwup is made public, even if it is on the front page of the New York Times, they don’t automatically get out. They have to find out about the screwup and get lawyers who have to file applications for writ of habeas corpus and get judges to order relief.

I handled (and am still handling) a bunch of writs in Bunin’s third category because that’s my thing, but I know of nobody else (other than the Harris County PD and a couple of DA’s Offices) reaching out to these defendants to tell them about relief, I wasn’t reaching most of the guys in prison, and a lot of the guys who weren’t in prison didn’t have the money to hire me to file writs on their behalf. Even if they weren’t flat broke, they couldn’t afford to hire competent writ counsel.

I know of nobody (other than the Harris County PD) who is reaching out to defendants in the first two categories. 

Even three years after I killed section 33.021(b) of the Texas Penal Code, I would lay odds that there are still scores of people in prison or on probation for violating that statute, when they should not be. I would not bet that there are many from Harris County, but other counties don’t have public defenders, and most District Attorneys’ offices never bothered to let their online-solicitation defendants know that the statute had been held unconstitutional.

So there was a need, and Alex Bunin and his Harris County Public Defender’s Office filled it. Keel was wrong. Did she appreciate being told that by Bunin and Secrest (who are both very diplomatic)? Oh, no. She did not. Not one little bit:

Yesterday when you invited me to next week’s board meeting, you told me that you were “not convinced” that the PD undertakes representation without appointment. As long as you deny facts that I have witnessed, attested to and documented, any further discussion between us about this issue would be counterproductive. Therefore I must decline your invitation. 

Because her bullshit worldview was challenged, Mary Lou Keel picked up her ball and went home.

Keel’s Pivot 

As far as I know that was the end of the matter. Until yesterday (from the Houston Press, via Simple Justice):

Two years later, however, because of a dispute that arose between State District Judge Mary Lou Keel and the public defender’s office about how, or even if, public defenders were allowed to help those 400 people get new trials, Keel has since then refused to work with any public defenders. In at least two years, she has appointed only one in her court. And today, she accuses the public defender’s office of lying to her, saying they were not trying to help those defendants in the interest of justice, but only to “make themselves look good.” 

So now the problem is that the PD’s office’s motive for helping those unjustly convicted people was not sufficiently pure for Mary Lou Keel. 

Of Dogs and Men

Why do dogs love us unconditionally? The probably don’t — dogs’ brains don’t work like ours do, so they don’t experience emotions like ours do. Why do dogs behave as though they love us unconditionally? Is it because they want us to be happy? No, it’s because that behavior evolved — the dogs who behaved as though they loved people unconditionally were more likely to be welcomed at the hearth, where the living is much easier, while those who didn’t howled outside in the cold.

Does it matter? Do you love your dog any less for it? Or does he do a satsifactory job of being a dog simply by behaving as though he loves you unconditionally?

We are evolved to help other people. It makes us feel good. Nobody helps other people because helping other people feels bad. Why do people help each other? Because there are rewards: maybe money, maybe glory, maybe satisfaction, maybe love of the fight. 

Does it matter? 

What motivates the Harris County Public Defender’s Office to file writs to get the unjustly imprisoned out of prison? Not money. 

Glory? Satisfaction? Love of the fight? 

Does it matter?

Keel’s Response 

I’ve never socialized with Mary Lou Keel, and I don’t know her other than her on-the-bench demeanor, but her response to the Public Defender’s Office’s success in unwinding hundreds (thousands?) of unjust convictions strikes me as one unhappy person’s envious response to someone else’s success. 

What makes the Public Defender’s Office look good? Doing good work. Setting unjustly convicted people free is a pretty good way for criminal-defense lawyers to make themselves look good. Is the motivation the setting free, the looking good, or the satisfaction? Does it matter?

Those who have never achieved great things — and secretly know that they never will — tend to look for reasons to diminish the accomplishments of those who have achieved great things — for example, by sniffily attributing some inferior motive to the achievement.

Alex Bunin and his team at the Harris County Public Defender’s Office have achieved great things.

 

Posted in Habeas Corpus | Tagged | 12 Comments

The Death of Human Interaction

After I wrote Trial by Myspace, something related came across my Twitter timeline.

I’ve sworn off Twitter till after the election (more time to blog!), so I’m not going to bother to go look it up (does it matter?), but it was to the effect, “People who complain about ‘likes’ and ‘retweets’ need to realize that most social interactions in real life are about the weather.” 

I hate to be doom-and-gloomy, but we are doomed. Comparing the clicking of a “like” button on Facebook or Twitter with even the most rudimentary of face-to-face interactions reveals the emptiness of the former and the richness of the later. 

An Introduction to Representational Systems

Human beings think in representational systems — primarily visual, auditory, and kinesthetic. You can often listen to the language that a person uses to describe the world, and hear what representational system he is using.

See what I mean?

Do you feel me?

As far as I know, nobody thinks exclusively in any one system, but (and my understanding of this is still primitive) we think primarily in one system at a time, and switch between primary systems. So, for example, if you ask me to solve a problem I might first listen to the question, then picture several different solutions, then check how each of them feels, and tell you what I’ve come up with. Or I might need to sketch it on the back of a napkin.

These systems are like channels on a television, or a radio, or … the kinesthetic equivalent of a television or radio? We consciously attend primarily to one at a time (while unconsciously attending to all three). 

Saying “Hi” on All Three Channels 

When we communicate with each other face to face, we provide visual and auditory information. When we touch — even if the touch is just a brief handshake — we provide kinesthetic information as well.

So I see my friend Lonnie in the elevator lobby at the criminal courthouse, and we shake hands and say “hello.” We hear each other’s tone of voice and breathing, see each other’s skin tone, muscle tone, and posture, feel the firmness of each other’s handshake, the dryness of each other’s skin, the duration and vigor of the handshake, the duration of the eye contact.

If I am paying attention, I know if something is bothering Lonnie, or if things are going really well for him. I know whether he’s in good health or has been fighting a bug. I know whether he is preoccupied with something. I know whether he’s happy to be there. And I’m sure there’s more that I’m not thinking of at the moment. The point is that, if we attend, “hello” is much more than hello.

And that’s just one word. If we start talking about the weather, sports, or anything else — the content matters little — we are giving each other megabytes of visual, auditory, and kinesthetic clues. What’s more, these are for the most part clues — minute variations in tone — that only human beings can assimilate and use.

Digital Communication

Clicking “like” or “retweet,” by contrast, provides exactly one bit of information. Neurolinguistic Programming practitioners  might call it “visual-digital” information. This post, too, is visual-digital — the information you get from it is not auditory or kinesthetic (though you might react to it those channels).

I am not a fan of watching videos on the internet. I go to the net for information, and if I want information I want it digitally, not visual-analogically or auditorily. But I suppose that video is as rich as online communication gets, because it provides those channels as well as the words. But even the highest resolution digitized video is not as good as being there, even the highest resolution video doesn’t convey the whole picture, and no video conveys the touch of human skin.

But … the Future!

Adam, Twitter, and God

Could digitized audio be as good as being there? Could online video convey the whole picture, so that we might mistake it for the actual experience? Could kinesthetic signals someday be conveyed over cables so that it’s just like being there?

It’s possible.

But it’d be much easier to get us dishabituated to face-to-face contact — to con us into believing that social media is just as good — than to build the technology to more accurately transmit the richness of such contact.

“Talking about the weather” was the epitome of shallow human interaction before social media, but the serious suggestion that it is anywhere near as shallow as a retweet or “like” betrays how far down that road of dishabituation social media have brought us. 

Posted in Neurolinguistic Programming and Hypnosis, Technology | 3 Comments

2016.041: Administrative

If you get this twice via email, it means it’s working. Due to popular demand (my Dad wasn’t getting emails) I’m moving away from the “subscribe2” WordPress plugin that didn’t work reliably, and to MailChimp, which should work better.

If you were subscribed before, I’ve moved your email address over to my MailChimp list. If you weren’t, there’s a new subscription box in the right column.

Once I get this foundering ship aright, I’ll be inclined to write more.

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Beware The Friggerogenic Video

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.

Scott writes,

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.

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