The vast majority of gifs, memes, and other internet content constitute speech protected by the First Amendment. As a general rule, aesthetic decisions concerning that speech—such as the usage of certain colors, background graphics, or font size—are expressive elements that warrant full constitutional protection. But a recent cyberattack against Twitter followers of the Epilepsy Foundation blurred that line. In November 2019, internet hackers sent a series of videos and flashing images to thousands of individuals affiliated with the Epilepsy Foundation. The transmission of that content was intended to trigger seizures in those with epilepsy. This begs the question: did the hackers’ messages containing strobe gifs constitute free speech protected under the First Amendment? Arguments have been waged on both sides, though no court has yet to address the question. This Article answers with an emphatic no. Messages calibrated to inflict physical harm on the recipient are “virtual assaults” and are not entitled to First Amendment protection. This Article defines a new cause of action for virtual assault and, in arguing that such an action would be constitutionally permissible, concludes that senders engaged in such conduct should not be permitted to skirt tort and criminal liability by hiding behind the right of free speech.
a. Supervising Attorney and Clinical Professor of Law with the First Amendment Clinic at Duke University School of Law. The author would like to thank Duke Law student Shira Levine ‘22 and Duke Law graduates Luke Morgan ‘19, Kyle Nodes ‘19, Ryan Rizzuto ‘19 for their research assistance. The author is grateful to Professors Stuart Benjamin, Joseph Blocher, Darrell Miller, Jeff Powell, and the Duke Law Jr. Scholars Workshop for their helpful comments and feedback.
The full text of this Article is available to download as a PDF.