Laura Mixon’s report on the actions of Requires Hate/ Benjanun Sriduangkaew has given evidence of the widespread harassment and abuse practiced by this person. In the comments, more victims have been speaking out about what happened to them. I personally have had no interactions with any of the RH personas or with BS, but because the question of legal action against RH has been raised a few times, I thought I would pull together *for informative purposes only* some of the facts and issues that either a criminal or civil case against RH would entail. I’m only speaking about law in the United States.
DISCLAIMER: This is not intended as legal advice and should not be taken as such. I am not a criminal lawyer, and my knowledge of cyber-crimes is not more than what is general public knowledge. Anyone who thinks there might be a criminal case against RH should take the facts to the police/FBI. Anyone who thinks she or he has a cause for emotional distress should consult a personal injury lawyer.
Criminal Law
The Law:
18 USC § 875 (c): Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.
The Statute of Limitations runs 5 years (Charles Doyle, “Statutes of Limitation in Federal Criminal Case: An Overview,” Congressional Research Service Report for Congress RL31253, October 1, 2012. http://fas.org/sgp/crs/misc/RL31253.pdf p.29m “All crimes not otherwise provided for.”)
Those requirements both seem to be satisfied for many of the incidents reported.
Actionability:
True threats are not protected by the First Amendment. The current prevailing statement on the issue is Virginia v. Black, 538 U.S. 343. https://supreme.justia.com/cases/federal/us/538/343/
Virginia v. Black, 538 U.S. 343, 359 (2003):
[T]he First Amendment also permits a State to ban a “true threat” Watts v. United States, 394 U.S. 705, 708 (1969)…. “True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States at 708 (“political hyperbole” is not a true threat); R.A.V. v. City of St. Paul, 505 U.S. [377, 388 (1992)]. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Ibid. Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.
The obvious question is What is a true threat? “I have your address and I am coming to your house with a gun to kill you” is different from “Someone ought to shoot that stinking sack of shit.” While the latter is offensive, I think it would be hard for prosecution to make a case that it is a “true threat.” RH’s speech would have to be analyzed on an individual basis, threat by threat, to determine if it met the standards of a “true threat” or was “just” harassment. (It’s possible that the extent of the trolling might make a stronger case, because it shows a pattern of behavior, but I don’t know how that would be handled by the DOJ.)
This issue is particular problematic right now, as the United States Supreme Court will be hearing this year (oral argument set for December 1, 2014) a case about threats made on Facebook and what level of intent is required for a conviction (Elonis v. United States). The court directed that: In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “Whether, as a matter of statutory interpretation, conviction of threatening another person under 18 U. S. C. §875(c) requires proof of the defendant’s subjective intent to threaten.” This seems to me at a quick read to be pretty similar to the RH case, with the difference that Elonis personally knew the people he threatened on FB. We will have to see the outcome of this to know how courts would be likely to go in any prosecution of RH.
Below is a link to the United States’ initial brief in the Elonis case, setting out the facts and relevant law. It is a long case, and I mostly list it here for people who wish to see examples of what kind of speech is at issue. (It’s really ugly, trigger warnings for about everything.) Free speech advocates such as the EFF have filed amicus briefs in support of Elonis’s case. You can find those and other documents at http://www.scotusblog.com/case-files/cases/elonis-v-united-states/
Brief of Respondent the United States:
http://sblog.s3.amazonaws.com/wp-content/uploads/2014/04/13-983-Elonis-Op.pdf
Here are also some news articles that were published when the court took the case:
http://mashable.com/2014/06/16/supreme-court-facebook-threats/
http://www.forbes.com/sites/kashmirhill/2014/06/16/supreme-court-facebook-death-threats/
Burden of Proof:
Criminal law requires proof “beyond reasonable doubt.” This is a tough standard to meet in any case, and I *suspect* is really hard in situations of anonymous internet communications. The issue in an RH case would be of who is actually making the threats.
A secondary issue would be the fact that a lot of the evidence has disappeared. Without screenshots, there’s nothing to prove there was a threat.
Jurisdiction: The residence of the victim should provide a solid jurisdictional basis for prosecution in federal district court. However, if RH is in fact in Thailand (or some country other than the United States), she would have to be extradited.
Tort Law:
“Intentional Infliction of Emotional Distress” (IIED) is a common law tort. In the United States, the statute of limitations for tort varies form state to state. In California, the statute of limitations is two years (Code of Civil Procedure Section 335.1). The statute would begin to run from the date of the first injurious communication. Tort cases also have issues with jurisdiction over foreign defendants.
To win a tort case in general, the plaintiff must prove that there is an injury, that the injury was caused by the defendant, and that the defendant had a duty not to inflict the injury and that duty was breached. “Duty” is usually the tough one. In an IIED case in California, plaintiff does not need to prove duty but does need to prove “outrageous conduct” or at least “reckless disregard.” I think that’s pretty clear in this case, but it’s not a slam-dunk; the factors a jury can consider with regard to “outrageous conduct” include whether the defendant was in a position of authority and whether the defendant knew of a particular vulnerability on the part of the plaintiff.
Plaintiff must also prove that there was emotional distress, and this can be really hard to show, for mostly good reasons – nearly anything related to emotions lies in a grey area subject to multiple interpretations, and we don’t as a society want to legislate degrees of emotions. The big weapon for the plaintiff here is medical proof, such as the testimony of a therapist. If the plaintiff has not received counseling or demonstrated outward signs of emotional distress, the case is going to be much harder. The connected problem for the plaintiff is that bringing in a therapist opens up other areas of inquiry that can also be extremely painful, such as childhood traumas, failed relationships, a history of depression, etc.
Damages are tricky too, first because quantifying “pain and suffering” into dollars is extremely difficult, especially when it’s emotional and not physical. Proving economic damages as a result of not writing / not publishing would be hard for any writer without a proven track record. Further, even if a jury awards substantial damages, the damages still have to be collected. If every victim of RH received 100K in damages, it would not be long before RH was “judgment proof” because she ran out of money. A slip and fall case against a homeowner can result in actual cash because homeowner’s insurance covers liability for such things. People don’t generally carry insurance policies for intentional emotional harm to others, though. So winning a tort case against RH might be a hollow victory.
The California jury instructions, which lay out the legal standards for emotional distress cases, are here: http://www.courts.ca.gov/partners/documents/caci_2014_edition.pdf (sections 1600-1605).
Tort cases can take a long time and be pretty expensive.
Other Actions
One possible remedy would be to try to have a restraining order taken out against RH/BS. I don’t know how this would fly with the courts or in actual practice.
Libel (written) or slander (spoken) are other possible civil causes of action but are probably pretty hard to prove.
