Via The Dispatch of Starkville, Mississippi, a local judge has apparently ordered Twitter to reveal account information relating to a parody account of David Little, an Alderman (city councilman to us west-coasters) for the city of Starkville. If the order by Judge Jim Kitchens is as reported by the Dispatch, I doubt the order can withstand First Amendment scrutiny, and perhaps opens those pursuing it to civil liability.
(While I focus on dry legal analysis here, the Dispatch article is worthwhile for raising this fun question: why is someone pretending to be a journalist and giving the cell phone number of a detective investigating the case to one of the parody account users?)
The Dispatch reports:
The order is related to a Starkville Police Department criminal investigation into the satirical @DavidLittleBOA Twitter account, which documents show was later changed to @DavidLittleFake.
No charges had been filed in the case as of Tuesday.
The order, signed by Judge Jim Kitchens, cites Miss. Code Annotated 97-7-43[.]
The cited statute reads:
Whoever falsely and willfully assumes or pretends to be an officer or employee acting under the authority of the State of Mississippi or any department, agency or officer thereof; or of any county, municipality or any other subdivision of the State of Mississippi, or of any department, agency or officer of such county, municipality or subdivision, shall be guilty of a misdemeanor and punished for each separate such offense by a fine of not more than five hundred dollars ($500.00) or by imprisonment of not more than six (6) months in jail, or by both such fine and imprisonment.
As written, the statute is substantially overbroad, depending on how “acting under the authority of” is interpreted. In many cases, this won’t be an issue: the defendant might be suspected of pretending to be a police officer, for example, in an attempt to induce others to rely on his status as a police officer (or other official). That is not the case with a parody account on Twitter: the intent is to impugn and assail the official, not to convince the public that he’s issuing edicts on Twitter. How, exactly, can an alderman act under the authority of the state on Twitter?
If the statute is not interpreted to encompass a requirement of proof of either some cognizable harm or an intent to induce harm, it likely runs afoul of the recent United States v. Alvarez, wherein a plurality of the Supreme Court struck down the Stolen Valor Act, which prohibited false statements that the speaker had been awarded various military honors. There, as here, the law did not require any proof of an intent to induce some harm or a showing of actual harm. Simply because a statement is false does not mean it is unprotected speech. Sometimes, as in parody assailing an elected official, the false statement is deserves protection because it is false.
It may very well be that the parody account made some objectively false and defamatory statement about Alderman Little. We don’t know because the account was deleted after the criminal investigation began. If there were such false statements, made with malice, that damaged Little, he could certainly ask the court to unmask the parody account in a civil action.
But that might require application of the Dendrite approach to determining whether an anonymous online user should be revealed by judicial process. That approach requires, among other things, notice to the prospective defendant, specifying what act the defendant engaged in, and weighing whether the plaintiff’s claims outweigh the speaker’s interest in remaining anonymous.
I doubt anything like that standard was followed in the criminal proceedings, given the absurdity of using the impersonation statute as a basis for unmasking the parodist. I am, however, attempting to obtain a copy of the documents and court order, and have sought comment from Alderman Little. I’ll update this post should either be forthcoming.