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1. “Sticks and Stones May Break My Bones, But Words Will Never Break Me”
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Words do cause harm, sometimes, they can even cause physical harm or even deadly harm to
another. We have seen proof of the potential harm electronic messages can cause over the
years. It started with one of the very first cases of cyberbullying, Monica Lewinsky. While the
gossip, rumors, and soon to be admitted truth of former President Clinton and Ms. Lewinsky’s
infamous affair was spread across dial-up internet, it still reached the population of the entire
country, causing harm and damage to both Ms. Lewinsky and former President Clinton, still to
this day. The Rivello case presents several questions as to how social media platforms are used
to commit crimes against another.

First, how narrowly does this particular analysis apply? Will the holding of this case apply
specifically to a situation where someone uses a GIF or video posted on social media to exploit
another’s pre-existing medical condition, such as Mr. Eichenwald’s?

Secondly, the next step is to look to the jurisdiction of where the harm is being transmitted to,
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and the effect of the harm being communicated to the recipient. While a minimum contacts
analysis is used to determine the jurisdiction for most crimes, the analysis differs when it comes
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to crimes taking place in cyberspace. It becomes difficult to determine the jurisdiction of a
state court when you have two parties from different states conducting activities through
electronic mediums such as smartphones and computers. In cyberspace, the Effects Principle is
used. Under the Effects Principle, we would simply look to the effect of the harm and how
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frequent the transmission(s) occurred.
Next, how has the social media platform been manipulated? The social media platform itself is
not a weapon. By design, Twitter’s only purpose is to share, exchange, and communicate
information (words, audio, images, videos) across a community of users. In the Rivello case, Mr.
Rivello took substantial steps in manipulating the design and purpose of Twitter from simply
communicating and sharing information, to using Twitter to exploit Mr. Eichenwald’s epilepsy for
public show.

Finally, the analysis ends with the characteristics of the potential victim. Mr. Eichenwald was a
known epileptic who was known for his articles, critiques, and interviews in the media. By
conducting background information on a potential victim, a perpetrator has a better chance of
unlocking and understanding the potentially fragile nature of their victim.

E. What Defenses, If Any, Does Mr. Rivello Have Available?

1. Does the First Amendment Shield Mr. Rivello’s Messages to Mr.
Eichenwald?

54 The Christian Recorder, African Methodist Episcopal Church, March 1862; see also
http://www.phrases.org.uk/meanings/sticks-and-stones-may-break-my-bones.html
55 See Susan W. Brenner, NCR Distinguished Professor of Law and Technology at the University of Dayton School
of Law; she has published various articles dealing with cybercrime; see also http://globalcyberrisk.com/our-
team/susan-brenner/; http://cyb3rcrim3.blogspot.com; https://papers.ssrn.com/sol3/papers.cfm?abstract_id=786507;
https://fas.org/sgp/crs/misc/R42547.pdf; http://euro.ecom.cmu.edu/program/law/08-
732/Jurisdiction/GrayMinimumContacts.pdf; http://corporate.findlaw.com/law-library/jurisdiction-in-
cyberspace.html; http://euro.ecom.cmu.edu/program/law/08-732/Jurisdiction/GladstoneDeterminingJurisdiction.pdf;
56 International Shoe Co. v. Washington, 326 U.S. 310 (1945), where the Supreme Court of the United States held
that a party…may be subject to the jurisdiction of a state court if it has “minimum contacts” with that state.
57 https://www.asil.org/sites/default/files/benchbook/jurisdiction.pdf
105 Cyber Warnings E-Magazine – May 2017 Edition
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