The charges against John Rayne Rivello* for sending Newsweek writer Kurt Eichenwald, “a disabled person,” a twit with a flashing GIF raise a great many issues that, beyond whatever twisted notions compelled Rivello to do such a thing, create challenges for criminal law. Rivello has been indicted federally, and locally. The latter jurisdiction has charged him with aggravated assault with a deadly weapon.
A deadly weapon? The indictment provides a laundry list of possibilities. A tweet. A graphic interchange format. An electronic device. Hands.
Under Texas law, a “deadly weapon” is defined as:
(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or
(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.
The first definition is largely superfluous, being subsumed in the second. The second essentially is limitless, the only caveat being that it’s capable of causing death or serious bodily injury. In this case, Eichenwald, an epileptic, claims that the flashing GIF could provoke (or, it’s unclear, did in fact cause) a seizure, and that a seizure could cause death or serious injury.
While Texas law will obviously be applied to this Dallas indictment, the broader question should reverberate across the country and around the internet. As much as this could be chalked up to one nutjob and a most peculiar fact pattern, the reality is that someone put what little part of their mind that actually worked to figuring out a way to weaponize his twit.
Others will do so as well. How, I can’t imagine, but I have no doubt the crossover from the digital world to the real world will happen. And, I note, that we’re not talking here about the horrifying trauma of hate speech and microaggressions, but physical harm.
Assuming, arguendo, that the breadth of the definition of “deadly weapon” will, as in Texas, encompass any and all means by which physical harm can be inflicted by one person on another, this fails to answer the question of whether a GIF can satisfy the definition of a weapon (deadly or otherwise).
The definition says “anything,” which might suggest that it’s without limitation. However, even that word presupposes that the “any” applies to a “thing,” that thing being a physical object. This is why the indictment includes the four items rather than merely the GIF.
However, the alternative things present problems of their own. Is a “tweet” a weapon? Like a GIF, it’s not a physical thing. It reflects speech and expression, and if the twit itself is the weapon only if it is of the sort that can inflict harm, is its “criminalization” not content-based? Obviously so, though that doesn’t mean it couldn’t be interpreted to fall under the speech integral to a crime exception. But is it a thing?
An electronic device is obviously a physical thing, and thus susceptible to being a deadly weapon. Its mostly likely use is to hit someone over the head with one. But is its use to transmit a digital communication a thing “capable of causing death or serious bodily injury”? The contention is circular, much as a “gun” can shoot bullets or bubbles, and which it shoots determines whether it’s fun or deadly.
Hands is a stretch of the worst order. They are an integral part of the defendant, and can’t be a weapon unless our ordinary existence is inherently a weapon.
So we come back to the GIF. This is where the digiial world defies definitions and concepts created for a physical world. You can see a GIF, but you can’t touch one. It appears to “exist” but it’s no more than ones and zeroes in code. Can a GIF be a thing for purposes of the definition of a weapon?
Some will see the answer in analogies. Isn’t a letter in the mail containing anthrax an assault? Of course, but then, the powdered anthrax is a physical thing. It fails to answer the question. Others will see the answer in the outcome, whether the fact that harm was allegedly caused makes the mechanism by which it was caused a thing. In other words, if a GIF can do harm, then it is, therefore, a weapon.
But that’s a dangerously slippery slope. Theoretically, harm can follow all manner of conduct, twits included (and the physical act of tapping out a twit is, without question, conduct even if the content of the twit may be speech) in ways that we may not yet be able to imagine. After all, who would have thought this flashing GIF could provoke a seizure? We would thus be put in the position of creating an outcome-based rule, a crime, without grasping its unintended consequences and less than desired results.
Even the inclusion of an intent requirement fails to provide sufficient limits to what could conceivably be charged as a weapon in the digital world. People regularly write horrible twits, Facebook posts, for the deliberate purpose of hurting others.
Or perhaps the facts of this case, that Eichenwald suffers from epilepsy and can potentially be physically harmed by a flashing GIF, are so unique that holding a GIF to be a deadly weapon will have no collateral consequences and, well, there is no concern that this will create a precedent for which we will later suffer for our lack of foresight.
But for now, the issues exist and the answers are either very easy or not easy at all. Given the potential that people like Rivello will find ways to do harm using the internet in ways normal people can’t imagine, the decision of whether to make a GIF into a weapon may well be one of the most difficult ones we face as we transition crime from the physical to the digital world.
Update: While I lacked a sufficiently fertile imagination to come up with examples that would create the conflicts that make the physical world definitions of deadly weapon problematic in the digital world, Eugene Volokh did a far better job. For all you easy-peasy folks, it’s not.
*Keith Lee has a gaggle of posts providing the background of the case.