Until information comes out on how the deposition between Eichenwald and Twitter went, this will be my last post on the topic for awhile. But here’s some final food for thought. To recap:

Currently Eichenwald is exploring pre-litigation discovery; deposing Twitter to discover identifying information on Jew Goldstein (“JG”). Eichenwald has also filed a complaint with the Dallas Police Department (“DPD”). Which means there are now two tracks upon which things are proceeding: civil and criminal.

The criminal aspect of the scenario is firmly in the hands of the DPD and the Dallas prosecutor’s office. As mentioned previously, criminal charges would likely be: assault by threat or assault (varying by level of harm JG intended to commit). But, whether or not they pursue criminal charges is in their hands, not Eichenwald’s.1Bonus option, because this involves interstate threats & assault, the DPD and prosecutor pass this off the the Feds.

As noted above, Eichenwald is currently engaged in pre-litigation discovery so that he can properly file a civil lawsuit. While purely speculative, I think it’s likely Eichenwald will sue for assault and intentional infliction of emotional stress.2Worth noting: practically speaking, the latter is very difficult to prove, and recovering damages happens infrequently.

And I think Eichenwald will go this route because he (and his lawyer) don’t view the offending Tweet as speech. They see it as assault.

Free Speech Or Assault?

Much has been made about Eichenwald’s pursuit of JG’s identity as a threat to free speech. That JG’s tweet should somehow be given 1st amendment protection. Well…

  • The first amendment protects your speech to be free of interference from the government. Eichenwald is a private citizen and can do whatever he feels like.
  • Same with Twitter when they suspended JG’s account.
  • People sue each other for speech all the time. Society has not collapsed. Read this Popehat Lawsplainer on defamation.
  • Not all speech is free. You can be prosecuted for “true threats.” They are not protected under the First Amendment.

BUT (and this is a big but, hence ALL CAPS), there is a question of whether or not the Tweet sent by JG to Eichenwald actually qualifies as speech.

“Of course it’s speech! JG sent Eichenwald a message, that’s clearly speech! Besides, all sorts of activities have been found to be speech!”

True, all of the following (which aren’t human speech) have been granted first amendment protection.

  • Not to speak (specifically, the right not to salute the flag).
    West Virginia Board of Education v. Barnette, 319 U.S. 624 (1943).
  • Of students to wear black armbands to school to protest a war (“Students do not shed their constitutional rights at the schoolhouse gate.”).
    Tinker v. Des Moines, 393 U.S. 503 (1969).
  • To contribute money (under certain circumstances) to political campaigns.
    Buckley v. Valeo, 424 U.S. 1 (1976).
  • To engage in symbolic speech, (e.g., burning the flag in protest).
    Texas v. Johnson, 491 U.S. 397 (1989); United States v. Eichman, 496 U.S. 310 (1990).

But again, none of these rose to the level of a “true threat” either. If a court were to determine that the Tweet from JG to Eichenwald was speech, there is a good chance they would determine it to be a “true threat.” 3I’d go into true threats, but they’re waaay outside the scope of this article. Go back and read Popehat’s post instead.

But given the very unique set of circumstance between JG and Eichenwald, there is a fair chance that the Tweet will be viewed not as speech, but assault.

What Is Assault?

To establish a baseline for understanding, let’s define assault:

An actor is subject to liability to another for assault if:

  • (a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
  • (b) the other is thereby put in such imminent apprehension.4Restatement (Second) of Torts § 21 (1965)

Assault is purposefully given a broad definition. All sorts of things have been found to be capable of assault:

  • Stroman v. U.S., 878 A.2d 1241 (D.C. 2005) – Assault with flip-flop, though the flip-flop did not rise to the level of deadly weapon. 5 Holding that a flip-flop sandal used to hit a victim was not a dangerous, even though the victim suffered cut to the forehead that required 15 stitches, since the flip-flop was not described as an object likely to cause death or great bodily injury, and the victim’s injury was minor or moderate and did not constitute great bodily injury.
  • In re Arthur T., 2003 WL 21001038 (Cal. App. 6th Dist. 2003) – Assault with a lighter was found to be assault with a deadly weapon. 6Holding that a lighter could be a deadly weapon, when lit and moved to between a quarter and three-quarters of an inch of the girl’s jacket. The court reasoned the defendant used the lighter in a way that could have caused the girl’s jacket to catch on fire and further cause great bodily injury, such as burns to her skin, thus supporting a finding that the lighter was used as a deadly weapon.
  • Bennight v. Western Auto Supply Co., 670 S.W.2d 373 (Tex.App.1984) (abrogated on other grounds) – Assault with bat (the flying mammal kind). Employer intentionally sending employee into warehouse, that was known to be infested with bats, was sufficient cause for assault when employee was bitten and suffered bodily injury due to rabies treatment. 7The employee-wife’s job required her to work in a warehouse periodically. The manager of the store employee-wife worked in knew the warehouse was infested with bats, and that bats terrified the employee-wife. Nevertheless, employee-wife was forced on several occasions to run “business errands” in the warehouse. Eventually employee-wife was bitten by a bat, which required a rabies vaccination. Unfortunately, employee-wife reacted negatively to the vaccination which caused her to be emotionally disturbed and permanent blindness. – Peters ex rel. Peters v. Texas Instruments Inc., CIV.A. 10C-06-043JRJ, 2011 WL 4686518, at *4 (Del. Super. Ct. Sept. 30, 2011)

All that’s to say, assault isn’t something that only happens when you hit someone with a wrench. There are plenty of wild scenarios that give rise to assault.

Can You Assault With A Tweet?

Let’s apply the elements of assault to the Eichenwald Scenario:

  • Eichenwald is a well-known epileptic
  • JG knows Eichenwald is epileptic
  • JG was in possession of epileptogenic image
  • JG sends epileptogenic image to Eichenwald (“offensive contact”)
  • Containing the message “You deserve a seizure for your posts” (intent to cause Eichenwald bodily harm)
  • Eichenwald claims to have had a seizure as a result of viewing the epileptogenic image (actual bodily harm).

So while it may seem silly to you that a Tweet can qualify as assault, under the very specific set of circumstances involving JG and Eichenwald, it’s quite likely that it could technically be considered assault.

That being said, as I was discussing the topic on Twitter last week, noted constitutional lawyer Marco Randazza chimed in with:

With which I pretty much agree.

In the ivory tower, the Eichenwald Scenario is a clear case of assault. In the messy world of courts, judges, and litigants, it’s hard to imagine this actually getting anywhere. Finally, Eichenwald does himself no favors by being about as unsympathetic a plaintiff/victim as possible.

So does Eichenwald actually get anywhere with this? I remain doubtful. But I also think there is a fair chance he’s going through the motions for all this so he can dox JG and expose his identity. Regardless, we should know something in the next couple of weeks after Eichenwald deposes Twitter.

If that was too much case law for you, you should check out my book, which doesn’t have any.


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