Page 106 - Cyber Warnings

Congress shall make no law…prohibiting the free exercise thereof; or abridging the
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freedom of speech, or of the press…
 U.S. Constitution, First Amendment

The U.S. Constitution gives every citizen the freedom to speak their mind, so long as it does not
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constitute certain types of speech, such as hate speech. Hate speech is…any form of
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intimidation…that [is] most likely to inspire fear of bodily harm. In an ordinary case, the
standard of care a court will look to is that of a reasonable person in like or similar
circumstances. However, in this case, the standard of care shifts to that of a person in like or
similar circumstances who suffers from epilepsy.

It appears from this case, that Mr. Rivello would not be shielded under the First Amendment
because the tweet could be considered hate speech. The GIF was created and sent to Mr.
Eichenwald with the purpose of causing the fear of potentially having a seizure. While words
alone cannot make anyone do something, a person who may not have complete control over
their physical impairment(s), the analysis changes.

2. Did Mr. Eichenwald Assume the Risk of Receiving Any Form of a Message,
Even a Strobing GIF?

Assumption of risk refers to situations in which an individual acknowledges the risks associated
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with any activity, but chooses to take part regardless. In other words, the individual knew the
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activity could result in a particular end result, but decided to proceed with it regardless.
Mr. Rivello could first argue that Mr. Eichenwald assumed the risk of being exposed to
potentially dangerous tweets such as his own because of his public status as a reporter and the
nature of his job which invites critiques and unsolicited messages at times. However, Mr. Rivello
could rebut that on the basis that maintaining an active social media account as part of their
daily reporting routine journalist does not automatically subject the individual to the infinite
number of potential solicitations or unsolicited messages.

Mr. Rivello could next argue that he was not the only one to send Mr. Eichenwald messages of
this kind and he should have known that because of his criticized articles and/or interviews with
the media, that he was bound to receive a similarly-styled unsolicited message from the general
public. To counter, while the nature of Mr. Eichenwald’s job requires him to maintain an active
online presence, that does not at the same time, open every door to every possible risk that
may present itself online in the realm of social media. Mr. Eichenwald has a large number of
followers on Twitter that it is almost impossible for him to predict each and every result of
reading every tweet and/or message he receives.

While Mr. Rivello’s argument seems logical, it does not seem likely that Mr. Eichenwald could
be said to have invited himself into a situation where he assumed the risk of suffering a seizure
because he logged into his account and viewed tweets he receives on a daily basis.

58 U.S. Const. amend. I
59 This is only one of the exceptions to the First Amendment protections to Free Speech; these are used simply for
relevance to the particular scenario.
60 Virginia v. Black, 538 U.S. 343 (2003)
61 https://legaldictionary.net/assumption-of-risk/
62 Id.
106 Cyber Warnings E-Magazine – May 2017 Edition
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