A New Jersey police department is pursuing cyber harassment charges against five people in connection with a protest photo uploaded to Twitter in June. Complaints were served against the original tweeter and four other people who retweeted the message, alleging that they caused the officer to fear for the safety of his family.
It’s an unprecedented use of anti-harassment laws, coming amid a nationwide law enforcement backlash against anti-police brutality activism. If successful, the charges would add significant new risks to political activity on social media, a key element in the ongoing protest movements.
The Nutley Police Department filed its complaints in late July over a tweet posted during a June 26th protest. The now-deleted message included a photo of a masked on-duty police officer with a request that “If anyone knows who this bitch is throw his info under this tweet.” Because of the mask, the officer is not readily identifiable from the photograph, and there do not appear to be any replies revealing his identity.
The original poster and the retweeters are charged with cyber harassment, a fourth-degree felony punishable by up to 18 months in jail. Activist Georgana Sziszak, one of the retweeters, revealed the complaint in a GoFundMe campaign last week. The American Civil Liberties Union of New Jersey confirmed its existence to The Verge, as did Sziszak’s attorney Alan Peyrouton. The Verge has also reviewed a copy of Sziszak’s summons.
“I’ve never seen anything like it,” says Peyrouton of the case. “I don’t see how that rises to the level of a crime.” Sziszak originally requested $3,000 to hire an attorney; so far, she’s raised around $8,200. Her summons orders her to appear in court later this month.
The department charged Sziszak and others on behalf of Detective Peter Sandomenico, who the complaint identifies as the officer in the tweet. It alleges that the photo and accompanying caption threatened the officer “acting in the performance of his duties, causing Detective Sandomenico to fear that harm will come to himself, family, and property.”
At the time Sziszak posted her fundraiser, the post had no replies and five retweets. It’s unclear how the department discovered its existence. However, some departments use automated social media surveillance tools to track all the tweets sent from a particular location. Had such a tool been used to surveil the Nutley protests, it would likely have surfaced the Sandomenico tweet.
The Nutley Police Department confirmed that it had filed complaints against five people for cyber harassment. “Charges were filed by our department. For an incident relating to one of our officers. However this remains under investigation which prevents me from providing any further details,” Detective Lieutenant Anthony Montanari told The Verge. The department also confirmed the officer’s identity.
Sziszak wrote on GoFundMe that she had been blindsided by the summons. “I did not reply, did not say anything against this cop, and had zero clue to who he was,” she wrote. “The purpose of this tweet was to find out the officer’s information, to hold him accountable.”
While the original poster is not named in the summons, Sziszak and her attorney corroborated his identity as Kevin Alfaro, who posted a separate GoFundMe campaign in July. (Alfaro did not respond to messages via Twitter or GoFundMe.) Alfaro’s GoFundMe describes a June 26th Nutley For Black Lives protest where young anti-racism demonstrators were confronted by pro-Christopher Columbus counter-protestors. The groups were eventually separated by barricades and police, although News 12 New Jersey reported that no arrests were made.
The campaign description says Alfaro was upset by officers who were “very friendly” with counter-protesters and covered their badges, a practice that some officers across the country have adopted to dodge complaints from protesters. “In an attempt to identify a specific police officer who was befriending someone harassing me, I uploaded a photo.” His tweet includes a picture of the “Thin Blue Line” American flag printed on Sandomenico’s mask — a symbol that’s used to signify police solidarity but is fraught with racist associations.
The department’s legal argument against the five Twitter users is murky. A 2014 New Jersey law bans online harassment when it threatens someone with physical harm or crimes against their property, or when it involves sending “lewd, indecent, or obscene” material — it’s more typically applied in cases involving persistent harassment campaigns and cyberstalking. The First Amendment also protects the right to photograph on-duty police officers.
There’s particularly little precedent for punishing retweets, even in lower-stakes non-criminal cases. MSNBC host Joy Reid was sued in 2018 for retweeting someone else’s allegedly defamatory post. But the plaintiff quickly dropped the retweet accusation, focusing only on statements Reid wrote. A recent suit claims retweets can count as copyright infringement, but it’s not yet resolved. The protest retweets could potentially be covered by Section 230 of the Communications Decency Act, a shield law that protects web services and their users from liability over other people’s posts.
The complaint implies that requesting Sandomenico’s “info” was an invitation to harass or doxx the officer. Harassment victims have sued trolls who encouraged followers to abuse them — like Montana real estate agent Tanya Gersh, who won a case against neo-Nazi blogger Andrew Anglin last year. But Gersh was terrorized for months after Anglin published dozens of articles about her and asked his followers to create a “troll storm.” The Nutley Police Department did not report any harassment beyond the original tweet, which itself didn’t call for any action beyond identifying Sandomenico.
Alexander Shalom, ACLU-NJ’s director of Supreme Court advocacy, declared the charges specious. “[The law] is designed to prevent venal harm, not hypersensitivity and hurt feelings,” he told The Verge. “What this appears to be is a police officer flexing his ability to charge someone notwithstanding the fact that he cannot establish the elements of the crime.”
Prosecuting people for clicking the retweet button could turn social media into a minefield. It would discourage users from engaging with content if there’s even a small risk of getting a complaint, especially users who aren’t sure what constitutes harassment or other legal violations. And charging everyone who retweeted even a single popular post would be almost impossible, turning it into a cudgel that powerful institutions — including the police — could selectively use against critics. “What if it had gotten retweeted 50,000 times? Are you going to go out to those 50,000 retweeters?” asks Peyrouton. “It’s inconceivable to me.”
Regardless of the outcome, the felony charges have serious consequences for the accused. In the days since receiving the complaint, Sziszak has been forced to manage the expense of hiring an attorney and the frustration of navigating a legal system upended by the coronavirus pandemic. Even if the charges don’t result in a sentence, the filing could intimidate protesters who want to legally record police, or make others afraid to engage with them.
“I cannot explain the fear I have and the worry I have for me vs. a police department,” Szisznak writes. “I feel afraid that I may have compromised my whole future based on something that I had believed was exercising my First Amendment right.”
Russell Brandom contributed reporting.
Update, 8/10 9:35AM ET: On August 7, after this piece was published, the Essex County Prosecutor’s Office moved to drop all charges related to the tweet.