This is Part IX of the ongoing coverage of Assault With A Deadly Twitter. Previous entries:

Also see conversations I’ve had with Vocativ & the BBC.

Long time readers and others following this lawsuit will recall that not much has been happening recently due to the legal system functioning in its slow and lumbering way. If you’re coming into this new, I recommend reading some of the above for background on the case.

Good news everyone! Remember the whole the-Dept-of-Justice-subpoenaed-Twitter-for-my-identity thing that I covered in Part 8? That case was dropped! So the DOJ is no longer trying to figure out who might be behind the mysterious @associatesmind Twitter account. With my name and picture on it. Linking to this website. And a bluecheck verifying my identity.

Now that we’re done with that nonsense, let’s get focus on Eichenwald v. Rivello. A Judge issued a memo last week and it’s a doozy.

Rivello had filed a Motion to Dismiss Eichenwald’s claims. There was no hearing held and Chief Judge James K. Bredar issued a memorandum based on filings.1US District Court for the District of Maryland, JKB-17-1124.

Background of the Case

The Judge does a tidy job of summarizing the bizarre tail and hints at where he is going right out the gate.

The Judge flat out states that “Defendant intentionally caused photons to hit Plaintiff’s retina, causing Plaintiff to suffer a seizure. This doesn’t bode well for Rivello.

Battery by GIF

After some procedural discussion, the Court gets right down to it in a Section titled “Battery by GIF.”

Prior to dissecting the semantics, as an initial issue, Judge Bredar makes it clear that he views Rivello’s action as a tort. Much like US Supreme Court Justice Potter Stewart’s famous opinion in Jacobellis v. Ohio, Judge Bredar knows a tort when he sees it.2I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [“hard-core pornography”], and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that. 378 US 184, 1964

Next, Judge Bredar dismisses the concerns of the academy and focuses on punishing “conduct outside the bounds of a civil society.”

And he is unconcerned with the exact terminology of what occurred – “the novelty of the mechanism by which the harm was achieved does not make those actions any less a tort.”

Judge Bredar goes onto lay out the elements of a battery in Texas3”in Texas, a battery is the intentional, knowing, or reckless  causing of a bodily injury, or intentionally or knowingly causing “physical contact with another when the person knows or should reasonably believe that the other will regard the contact as
offensive or provocative.”
, noting that in “order for a battery to occur, there must be some physical contact between something and the plaintiff or something attached to the plaintiff.”

And now the money passage:

The Court then goes on to note that contact can often “be of an amorphous nature,” and lists examples of battery without person-to-person contact.

  • Causing a person to come into contact with harmful smoke) can constitute a battery.4See Irene Sharf, Breathe Deeply: The Tort of Smokers’ Battery, 32 Hous. L. Rev. 615, 663 n.263 (1995) (citing cases)
  • A court in Georgia found a battery where the tortfeasor made a loud noise over the phone in order to harm the victim.5See Hendricks v. S.
    Bell. Tel. & Tel. Co., 387 S.E.2d 593, 594-95 (Ga. App. 1989).
  • It is not unreasonable to infer that causing an electrical shock to someone may be regarded as a battery whether or not [the tortfeasor] ever laid a hand on [the
    victim].”6 Carter v. Maryland, Civ. No. JKB-12-1789, 2012 WL 6021370, at *11 (D. Md. Dec. 3, 2012)

Physical Harm and Offensive Touching

Judge Bredar then goes onto to focus on the physical harm of the issue and how it is unrelated to speech. He then clarifies even further:

The strobe GIF was a physical tool, one that would have the same impact on any person with Plaintiff’s condition. . .What mattered was the physical nature of the light emitted from the GIF. The light, and not the emotional or intellectual impact of any accompanying message, caused a seizure…

Novelty Does Not Mean Without Redress

And while there is no particular case law on point, Judge Bredar is unconcerned. He offers other examples where he is confident that Texas courts would also find to be a Battery, despite being novel or presenting a unique fact pattern.

Finally, to sum things up, Judge Bredar declares “that Defendant intentionally caused Plaintiff physical harm by means of a device, and that is a battery.”

If it Looks Like a Duck, and Quacks Like a Duck…

Despite the novelty of the given situation, Judge Bredar’s memorandum leaves no doubt to his assessment:

  • Knowing someone is a sensitive epileptic;
  • Sending them a strobing Gif ;
  • With the intent to cause a harmful touching; and
  • Causing a harmful touching

is a battery.

So there you have it, straight from a Court – weaponized Tweets are a real thing. Welcome to the future.

You can read the full memo here.

Update: You can also read Venkat’s and Professor Goldman’s take here.

More coverage as the case continues to develop. And thanks to Virgil for staying on top of the case and letting me know this memo was released.  

And if you want to discuss the case with other lawyers and not scrubs/wannabes/anime avatars on Twitter -> LawyerSmack.


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