YouTuber Could Be Subjected to Anti-Cyberstalking Order Based on His "Edict" that Viewers Confront Another YouTuber and "Let Her Know Nobody Likes You"

From Strober v. Harris, decided today by the Florida Court of Appeal (Judges Darryl Casanueva, Nelly Khouzam, and Suzanne Labrit):

Rashida Marie Strober appeals an order dismissing her petition for injunction for protection against stalking filed against Thomas Jerome Harris….

Ms. Strober and Mr. Harris each derive a portion of their incomes from their respective YouTube channels. Ms. Strober, a Florida resident, focuses on the issue of colorism, which she defines as skin tone discrimination within the Black community. Mr. Harris, a Georgia resident, testified that he is "considered the largest Black YouTuber" in his sector and is "mostly focused on Black people and the Black family." Although Mr. Harris testified that he does not consider himself a "shock jock," he admitted that "people do consider me that."

Ms. Strober appeared on Mr. Harris's channel for an interview, which ended up being contentious. Afterward, Ms. Strober asked Mr. Harris to remove the video of her appearance from his channel. Mr. Harris replied that he would remove the video only if Ms. Strober paid him to do so, which she declined to do.

Thereafter, Ms. Strober and Mr. Harris published competing video content on various platforms in which they criticized one another. For Mr. Harris's part, his videos specifically named and focused on Ms. Strober, including one titled "Dear Rashida Strober."

After Mr. Harris began posting these videos about Ms. Strober, she received a variety of threatening and disturbing emails, text messages, and phone calls. In addition to outright death threats, these messages also included (1) pictures of mutilated and dismembered human bodies, (2) a picture of a young Black woman in a casket, (3) photographs edited to show Ms. Strober hanging from a tree, (4) the home addresses of Ms. Strober and other members of her family, and (5) a picture of a location near Ms. Strober's home with the message "see you soon."

Although most of the threatening messages did not identify the sender, some asserted they were from Mr. Harris, others came from addresses associated with his name, and still others stated they were sent on his behalf. However, none came from the email address through which Mr. Harris had previously communicated with Ms. Strober.

Ms. Strober asked for an "injunction for protection against stalking":

She alleged that through videos published to his YouTube channel, Mr. Harris had directly threatened her and had also incited threats against her from his viewers. Among other things, Ms. Strober alleged that Mr. Harris had falsely accused her of child abuse, announced her home address online to his viewers, and published a photograph of her minor daughter. The petition asserted that Ms. Strober had received hundreds of threats and other harassing messages as a result, attaching copies of some of them as exhibits….

Among other statements in the excerpts of his videos played at the hearing, Mr. Harris (1) directed viewers to approach Ms. Strober in public, giving them an "edict" to confront her and "let her know nobody likes you"; (2) dared Ms. Strober to sue him over their dispute, saying "Let's go to war, Bitch. I love to be—I want one of you Black hoes to go to court with me. I want to go to court with one of you Black bitches"; and (3) solicited monetary donations from viewers in order to "make this bitch mad," praising those who donated because "Y'all gon' make her kill herself." …

The trial court concluded that it lacked jurisdiction over Harris, but the Court of Appeal disagreed, and moved on to the merits:

The trial court also ruled that "… the petition for injunction would be denied" … [because] neither the videos nor the threats were sent to Ms. Strober directly by Mr. Harris himself. But … the trial court's analysis reflects a misapprehension of the governing statutory standard.

[In relevant part, Florida Statutes section 784.048(1)(d) define "cyberstalk" to mean] …

To engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person … causing substantial emotional distress to that person and serving no legitimate purpose.

Thus, the statutory definition of cyberstalk includes not only messages "communicate[d]" by a respondent, but also messages "cause[d] to be communicated" as well.

Under the analysis applied by the trial court, however, the mere failure to establish that Mr. Harris himself sent the videos or threats directly to Ms. Strober ended the inquiry. Specifically, the court ruled that "[a]ll of the alleged threatening and harassing communications by the Petitioner [sic] were videos posted for thousands of others to see, and the communications directly received by the petitioner do not have a direct link to the Respondent other than his publicly-posted video." But that begs the question whether the "publicly-posted video[s]" "cause[d the threats] to be communicated"—a crucial part of the statutory definition that the court conspicuously failed to address.

As a result of this narrow interpretation of the statutory standard, the court disregarded Ms. Strober's express allegations and evidence that Mr. Harris had "cause[d the threats] to be communicated" with his videos, even though the court affirmatively found that she began receiving them only after appearing on Mr. Harris's channel.

The court also never addressed Mr. Harris's statement—in a video entered into evidence without objection, admitted to be authentic, and played at the hearing—giving his viewers an "edict" to harass Ms. Strober. And, the court declined to determine whether the threatening messages purporting to be from Mr. Harris were "cause[d] to be communicated" by him. Contrary to the trial court's interpretation of the statute, none of these issues were resolved by the discrete finding that Ms. Strober failed to prove that Mr. Harris sent the threats himself….

The court remanded to the trial court to apply the law. It will be interesting to see how things play out here; the statute expressly excludes "constitutionally protected activity" from "course of conduct," so one question will be whether calling on audience members to remonstrate with someone is constitutionally unprotected.

Another question might be what sort of order the court can issue without being unconstitutionally vague or overbroad (see David v. Textor (Fla. Ct. App. 2016)). An order that, for instance, bars Harris from "communicat[ing], or to caus[ing] to be communicated … language … directed at a [Strober] … causing substantial emotional distress to [her] and serving no legitimate purpose" might well be both vague (what's a legitimate purpose) and overbroad (given that a good deal of criticism could indeed "cause" some listeners to send offensive messages or even threats to the subject of the criticism).

But the Court of Appeal was right, I think, in concluding that the statute goes beyond direct messages from the defendant to the plaintiff.

Comments

[rsteinmetz]

The causation part I can see if a person encourages others to confront or communicate with the target in some ways that are actual harassment.

However I can also see this being extended to statements that are merely criticism or encourage legal actions, like writing letters or making comments on social media.

[Toranth]

This leads directly to the absurd conclusion that you can be guilty of cyberstalking without ever touching a computer, phone, or other electronic device in your life.

It think it is plain "cause to be communicated" was to get around the "I didn't send the email, it was this program I wrote" type of excuse, rather than expand the 'cyberstalking' stature completely outside the electronic realm.

[Eugene Volokh]

Toranth: I'm not sure why "touching a computer" should be the standard. If I shoot and kill you, I'm guilty of murder; if I tell my henchman to shoot and kill you, I'm guilty of murder, even though I've never touched a gun.

Likewise, if I e-mail you a threat, I'm guilty of cyberstalking; and if I get up in a room of my loyal followers (a room room, not a breakout room) and tell them to e-mail you threats, I can be guilty of cyberstalking, too, even though I've never touched an electronic device.

Now simply banning causing others to send messages that cause substantial emotional distress and lack a legitimate purpose would indeed be unconstitutionally overbroad (and vague), though again apart from whether the target has touched a computer: It would cover, for instance, a speech or a newspaper article that harshly condemns someone and leads a few readers to send threatening messages (or perhaps otherwise distressing messages). Perhaps the exemption for constitutionally protected behavior would cure that problem, or perhaps it wouldn't. But again, that vagueness or overbreadth applies regardless of whether the defendant personally touches an electronic device.

[Toranth]

Isn't this indirect causation what things like "solicitation of...", "conspiracy to..." and "felony xxx" exist for?

In this case, if the person encouraging other did commit one of those, then that's the charge they should be facing, right? But stretching the definition of "cause to be" to include other people encouraged by the person seems to be transforming the stature well beyond its intended purpose.

Again, that phrase looks very much like it was added to the statute for specific technical reasons, not anti-conspiracy reasons, and changing the meaning years later seems wrong. Otherwise, the parts of the statute that deal with physical stalking (sections (2) on) are crippled compared to when they applied to 'cyberstalking' - which makes little sense.

[Eugene Volokh]

1. No: For instance, when someone "order[s], direct[s], and plan[s]" a murder, he is himself guilty of murder, see, e.g., Kirkman v. State (Fla. 2018). (The crime of solicitation plays an important role in some other situations, such as where the underlying crime doesn't happen.)

2. But in any event, the statute clearly covers both engaging in technological communications to inflict serious emotional distress and causing another to do so. If you prefer to think of it as a ban on "cyberstalking and solicitation of cyberstalking," just wrapped into one offense and under one name, that's fine. One way or the other, the statute bans both.

[Bill R]

I agree with Toranth on this. "Cause" and "solicit" are two different things. Cause implies that there isn't any choice - I pushed the button, I left the parking brake off. The statute doesn't mention causing or influencing another person to do anything. If it was intended to be read that way, it would say so.

[Eugene Volokh]

Bill R: (1) That is not how "cause" is used in law; people are often seen as causing a result even when there were intervening decisions by other parties.

(2) The statute does mention "causing"; it defines "cyberstalk" as "[t]o engage in a course of conduct to communicate, or to cause to be communicated, words, images, or language by or through the use of electronic mail or electronic communication, directed at a specific person … causing substantial emotional distress to that person and serving no legitimate purpose."

[Toranth]

The problem with your interpretation is that a person physically following or harassing someone must do it in person to be charged under this statute - but the third case of "follow, harass, or cyberstalk" suddenly gains an entire extra prong, whereby they can be charged for someone else's actions.

That makes no sense.

Instead, it makes perfect sense if you look at "cause to be" to be there in order to get around claims like "I didn't do it, this script running as a different user account did it instead". You would reverse these two, leaving an odd hole in both the physical and technical sides.

[ReaderY]

It is not uncommon for organized crime leaders to direct their followers in code, saying things that appear innocuous to outsiders but whose meaning is understood by their followers.

It violates nothing in the constitution, and no fundamental principle of justice, to regard the leaders who conceive, organize, amd direct a criminal eenterprise in committing a crime to be at least as culpable as the followers who carry the orders out and do the dirty work. And the idea that direct others to commit a crime doesn’t cause it seems absurd logically.

Common law principles and definitions are not fixed for all time. The whole point of having a legislature is to let the people’s representatives update legal doctrines and definitions to meet changing circumstances.

The rise of organized crime made it eminently sensible to upgrade directing a crime from being a mere lesser offense of solicitation to being a principle crime in and of itself. Legislatures were eminently entitled to pass statutes throwing out traditional common law categorizations and reflecting an increase in the severity with which such conduct is regarded by the law.

[Holden C]

Again, just another armchair intellectual masturbation from Eugene Volokh to strike down any court order or law that would protect victims of cyberstalking. In Eugene's world, there is nothing that can occur online that would ever qualify as harassment, let alone stalking. For Eugene and his sycophants on this blog, they are so blinded by an absolutist interpretation of "Free Speech" that this is somehow expanded to cover all criminal activities online, including malicious harassment, malicious stalking, grudge websites to ruin people, blackmail, anything goes under the sun, as long as it involves the typed word, because that superficially qualifies as "speech". The most uncivilized and criminal behaviors online would be considered "sacred rights" under Eugene Volokh's biased, dangerously broad interpretation of Free Speech. Eugene would be ok if people committed suicide and societal violence increased as a result of online harms and crimes, he would have no problem with that. Other countries are all passing cyberbullying laws to strike down on deviant and harmful online conduct but Eugene blindly takes a view that all speech must be sacred no matter how damaging, relevant to public interests, harmful to the victims, malicious of the perpetrators, these factors be damned.

Eugene Volokh is reckless and his views are downright dangerous and poisonous for America. Anyone would be the next victim of an online crime and you can thank Eugene Volokh for this. Fortunately, it seems Congress will be passing more regulations to curb online harms this year, to Eugene Volokh's dismay.

[Krayt]

Freedom of speech must be fought for on distasteful grounds, like cavemanlike behavior or porn, because the next step is more reasonable speech under some argument The People cannot handle news unfiltered by their disinterested protectors in government.

[Holden C]

Volokh's approach gives victims of malicious targeted online harassment no legal recourse, even if their lives have been turned upside down by the malicious stalking or harassment from these individuals. Volokh purposefully ignores talking about the huge impact to the lives of victims of cyberharassers who target these people for years because the harasser has a mental issue. The Free Speech should be balanced with safety and appropriate privacy for citizens online, otherwise it's been weaponized by sick and sadistic bastards and criminals, and Eugene is fighting hard for these sadistic bastards and criminals to keep harming people. Eugene has never given two shits about the victims of cyberharassment, never in any of his papers does he even consider the unique nature of the internet and the ability for malicious actors to ruin private individuals who are not in the public eye. Eugene Volokh has opposed laws banning doxing, revenge porn, Section 230 reform, etc... anything that would put more legal responsibility on platforms, ISPs, and intermediaries to make their products safer for people.

Eugene Volokh is a sadistic liar of the highest order. He gets paid by Google so that's why he's purposely ignores the pain to victims of these crimes. He doesn't care because he gets richer if laws are not passed to make Google remove harmful material. But these laws are necessary because otherwise victims have no recourse, and criminals are having a field day online. Eugene helps criminals and lines his own pockets with money.

[Holden C]

If America fails to pass a new Federal data protection law this year you can thank Eugene for this.

[gormadoc]

Sounds good to me.

[Holden C]

Volokh's approach gives victims of malicious targeted online harassment no legal recourse, even if their lives have been turned upside down by the malicious stalking or harassment from these individuals. Volokh purposefully ignores talking about the huge impact to the lives of victims of cyberharassers who target these people for years because the harasser has a mental issue. The Free Speech should be balanced with safety and appropriate privacy for citizens online, otherwise it's been weaponized by sick and sadistic bastards and criminals, and Eugene is fighting hard for these sadistic bastards and criminals to keep harming people. Eugene has never given two shits about the victims of cyberharassment, never in any of his papers does he even consider the unique nature of the internet and the ability for malicious actors to ruin private individuals who are not in the public eye. Eugene Volokh has opposed laws banning doxing, revenge porn, Section 230 reform, etc... anything that would put more legal responsibility on platforms, ISPs, and intermediaries to make their products safer for people.

Eugene Volokh is a sadistic, unethical liar of the highest order. He gets paid by Google so that's why he's purposely ignores the pain to victims of these crimes. He doesn't care because he gets richer if laws are not passed to make Google remove harmful material. But these laws are necessary because otherwise victims have no recourse, and criminals are having a field day online. Eugene helps criminals and lines his own pockets with money.

[Holden C]

Eugene wants everyone's information to be online and profiled by SEO thereby increasing Google's profits and thereby siphoning more kickbacks to Eugene behind the scenes. Eugene benefits from an expansive "First Amendment" view directly because he is a mouthpiece of Big Tech who give him kickbacks to knock down cyberharassment laws that would cut into Google's bottom line.

[Alpheus W Drinkwater]

You are making claims without providing any evidence, and making your points in an overly strident and obnoxious manner. But at least you are doing it somewhere where your comments are germane to the original post. If you toned it down a bit and made your argument without personal attacks, you might even get a response.

[Holden C]

Eugene Volokh's approach gives victims of malicious targeted online harassment no legal recourse, even if their lives have been turned upside down by the malicious stalking or harassment from these individuals. Volokh purposefully ignores talking about the huge impact to the lives of victims of cyberharassers who target these people for years because the harasser has a mental issue. The Free Speech should be balanced with safety and appropriate privacy for citizens online, otherwise it's been weaponized by sick and sadistic bastards and criminals, and Eugene is fighting hard for these sadistic bastards and criminals to keep harming people. Eugene has never given two shits about the victims of cyberharassment, never in any of his papers does he even consider the unique nature of the internet and the ability for malicious actors to ruin private individuals who are not in the public eye. Eugene Volokh has opposed laws banning doxing, revenge porn, Section 230 reform, etc... anything that would put more legal responsibility on platforms, ISPs, and intermediaries to make their products safer for people.

Eugene Volokh is a sadistic, unethical liar of the highest order. He gets paid by Google so that's why he's purposely ignores the pain to victims of these crimes. He doesn't care because he gets richer if laws are not passed to make Google remove harmful material. But these laws are necessary because otherwise victims have no recourse, and criminals are having a field day online. Eugene helps criminals and lines his own pockets with money.

If you look through these forums, many others have called out Eugene's hypocritical analysis. The sadistic guy seems to take extreme pleasure in people getting their lives destroyed by harassers online and coming out and defending the harassers while leaving the victims to hang. He takes pleasure when people lose their jobs and livelihoods over doxing. He takes pleasure when plaintiffs cannot file suits using a pseudonym even when they are doing so to protect being re-victimized by the court system. The dude is a grade A sadistic liar and a borderline psychopath based on his behaviour. He enjoys seeing people in pain and then coming out with his BS "Free Speech" arguments to make victims suffer more. You can see it in his eyes, he loves to destroy people. Cu**

[Holden C]

The most disturbing and sadistic part of Volokh’s argument is he NEVER even addresses the HARMS incurred to the lives of VICTIMS of cyberharassment and cyberstalking. The guy has never even addressed the unique nature of the internet to do maximal damage to victims’ lives if they are targeted by malicious individuals who purposely take advantage of the legal loopholes to ruin people. He doesn’t care about this. His message to the victims is “fuck you, you’re collateral damage to my desire to preserve absolute free speech (as long as I’m not the victim, I don’t care).” He has never been the victim himself of targeted cyberstalking so he doesn’t emphasize with victims, and worse off, he actively tries to strike down laws that would protect people from this new type of harassment. The guy has zero conscience, zero empathy, and his blind adherence to a possibly outdated strict interpretation of the First Amendment in an emerging age of the Internet (which was never foreseen by the Founding Fathers) is downright irresponsible, dangerous, and dishonest. There is a lot of bad pervs, trolls, psychos and just malicious individuals who purposefully use the lack of internet regulation to harm people, and they should be brought to justice. Eugene is trying his best to prevent this from happening.

[M L]

You seem like you were not bullied enough in school.

[Holden C]

Volokh is a sadistic, unethical liar of the highest order. He gets paid by Google so that's why he's purposely ignores the pain to victims of these crimes. He doesn't care because he gets richer if laws are not passed to make Google remove harmful material. But these laws are necessary because otherwise victims have no recourse, and criminals are having a field day online. Eugene helps criminals and lines his own pockets with money.

If you look through these forums, many others have called out Eugene's hypocritical analysis. The sadistic guy seems to take extreme pleasure in people getting their lives destroyed by harassers online and coming out and defending the harassers while leaving the victims to hang. He takes pleasure when people lose their jobs and livelihoods over doxing. He takes pleasure when plaintiffs cannot file suits using a pseudonym even when they are doing so to protect being re-victimized by the court system. The dude is a grade A sadistic liar and a borderline psychopath based on his behaviour. He enjoys seeing people in pain and then coming out with his BS "Free Speech" arguments to make victims suffer more. You can see it in his eyes, he loves to destroy people. Cu**

[John F. Carr]

"No appearance for Appellee."

Do uncontested appeals decided in favor of the appellant generally result in published (precedential) opinions? It seems unfair to set a precedent based on one side's arguments only.

[tkamenick]

This seems wrong to me. Yes, much of what the senders were doing would be constitutionally unprotected. But the D's "edict" was to "confront" her (constitutionally protected) and to "let her know nobody likes you" (also constitutionally protected).

How can encouraging people to engage in constitutionally protected behavior not itself be constitutionally protected?

[John F. Carr]

If this was the motion to dismiss stage, it would only be necessary to prove that it was reasonably likely that admissible evidence of fault would be forthcoming.