BALTIMORE -- The line between cyberstalking and freedom of speech isn't always clear, O. Lizette Solis, MD, and colleagues said in a poster presentation Thursday at the annual meeting of the American Academy of Psychiatry and the Law here.
With technology evolving through the use of text messaging, email, and social media, instantaneous communication has increased the risk of unwanted, repeated harassment, Solis, a psychiatrist in Westerville, Ohio, and colleagues said. In the -- a supplement to the twice-yearly National Crime Victimization Survey administered by the Justice Department -- 25% of respondents reported some form of cyberstalking, which is usually defined as the use of electronic media to stalk an individual.
Although cyberstalking is a crime in all 50 states, "these laws may be challenged on the basis that they infringe on First Amendment rights," the authors noted. "The expert opinion of psychiatrists may be sought by attorneys on behalf of their clients or directly by the courts, in regard to threat assessment, consideration of parole, or in the arena of civil litigation for psychic harm," therefore elevating its importance for psychiatrists.
The authors discussed two cases involving allegations of cyberstalking. One case, U.S. v. Latigo, occurred in 2017 and concerned Heriberto Latigo and the victim, known only as Jane Doe, who were coworkers and started dating. Latigo became very controlling and demanding, forcing her to send him nude photos of herself. If she didn't meet all his demands, he threatened to and later actually did send the nude photos to male coworkers and to her sister. She got pregnant and had an abortion, whereupon Latigo created a Facebook page in which he pretended to be the aborted fetus. Doe became distraught and attempted suicide.
Doe moved, changed jobs, and closed her social media accounts, but Latigo found her and continued to harass her. "This was the first case tried in the Southern District of Texas in which a defendant used the Internet to cause substantial emotional distress," the authors noted, adding that Latigo was convicted and sentenced to 5 years in prison.
This case is typical of many cyberstalking incidents, Solis told 番茄社区. "Many times these are former intimate relationships that have broken down, and ended poorly, and one of the partners proceeds to terrorize the other partner."
The outcome was substantially different in the second case, known as Rynearson v. Ferguson. In that lawsuit from this year, Richard Rynearson, a civil liberties activist, became acquainted with Washington state resident Clarence Moriwaki, who founded a memorial for Japanese-American internment victims. After Moriwaki refused to publicly denounce the National Defense Authorization Act of 2012, Rynearson criticized Moriwaki online and sent multiple critical text messages; he also started a Facebook page echoing these criticisms.
Washington state has a law banning repeated or obscene electronic communications sent with "intent to harass, intimidate, torment, or embarrass any other person," the authors noted. Moriwaki obtained a temporary stalking protection order against Rynearson and accused him of violating laws against both stalking and cyberstalking laws. A municipal court ordered Rynearson to remove any public Internet pages or Facebook pages with Moriwaki's name on them. Eventually a permanent order was granted. Rynearson's claim that his actions were protected by the First Amendment were rejected, the investigators said.
However, Rynearson eventually found relief in a federal court, which ruled that Washington's law was unconstitutional because it included protected speech. "Even public criticisms of public figures and public officials could be subject to criminal prosecution and punishment if they are seen as intended to persistently 'vex' or 'annoy' those public figures, or to embarrass them," wrote U.S. District Court Judge Ronald Leighton.
"The point of this poster was to illustrate the challenge faced by the legal system in balancing freedom of speech, which is a First Amendment right, with the legal responsibility to protect people from credible threats," Solis said. "Many times, these things posted online may be somewhere in the middle."
"Cyberstalking can be very much a crime of context; it's how the victim is interpreting what's being posted," she said. "For example, if a perpetrator sends a victim a picture of a closed fist, that might not have any meaning to me or you, but to a potential victim, could be a reminder of how he or she used to be hit in the relationship, or it can be a threat they will be hit again."
"So the victim might feel like that is threatening, but if that person would take that picture to law enforcement and say, 'This is my evidence that I'm being cyberstalked or harassed or intimidated,' that might be dismissed, that might not be seen as anything," she added. "The actual perpetrator, if confronted, might say, 'It's freedom of speech; it's my way of communicating. It's not criminal; I didn't mean anything by it.'"
Today, cyberstalking "is very much a crime of context subject to state laws and what the specific criteria are for defining what is cyberstalking or harassment; it's something that will continue to evolve as technology evolves, and as states catch up with their laws," Solis said.