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Tuesday, January 4, 2011

Will New Online Impersonation Law Kill Faux Twitter Accounts?

Posted By on Tue, Jan 4, 2011 at 12:15 AM

click to enlarge Illegally funny?
  • Illegally funny?

Since the clock struck midnight on Jan. 1, it has been a misdemeanor in this state to malevolently impersonate someone on the internet. The "Malicious E-Personization Bill" authored by Sen. Joe Simitian (D-Palo Alto) outlaws the impersonation of another person on the web for the purposes of "harming, intimidating, threatening, or defrauding" said person.

While Simitian is obviously targeting bullies and crooks, is it possible that satirists might be hit by the e-recoil? In short, will purveyors of mock Facebook and Twitter pages such as, say, @Bossy_Brugmann now find themselves in court?

The answer: Possibly. But not probably.

We read First Amendment lawyer Karl Olson a few excerpts from Bossy Brugmann. While the Twitter feed never overtly states it isn't the genuine article from the publisher of the San Francisco Bay Guardian, one might infer such from the bio entry: Publisher, PG&E hater, Smart car owner. Gets litigious in summertime. Wants another What's Up Dog. Now I got a fucking golf cart.

Sample tweets: FUCK FOREPLAY JUST FUCK HIM AGAIN HE'S SORRY ABOUT THE FUCKING TEETH;  WHAT A DAY. SHOVED 5 HEIRLOOM APPLES UP THE ASS OF @ BEFORE HE SHIT OUT A FRUIT SALAD. GUY'S A FUCKING GENIUS; and NOW SHARING STOLEN LAMB SOUP WITH SIXTH STREET STREET GAL ATOP ALL-STAR DONUTS TO THE WAIL OF SIRENS FORLORN. (SONG OF MYSELF).

Olson saw this as fair game, however, even with the implementation of Simitian's new law. "You're going to have to have room for satire," he said. A faux first-person Twitter feed mocking the University of California higher-ups who have recently threatened to sue the state regarding the reductions of their generous pensions would be fair as well, he notes. No judge or jury would want to give the aggrieved U.C. officials damages in a case like that -- and, he says, Brugmann wouldn't be due a cent either.

Simitian, meanwhile, made the distinction that the key to his law is the credibility of the "e-personization." In other words, it's one thing to portray Brugmann as a slovenly, drunken maniac. It's another thing to do so in a way that people would really believe the genuine Brugmann is tweeting out the aforementioned tales of debauchery. "A key question is, 'is it credibile?'" asks Simitian. "Do people who read it think it's him?" Credibility, the senator admits, will come on a "Case-by-case basis."

Olson, meanwhile, felt tweets such as @Bossy_Brugmann's were protected as the same sort of satire as the famous case involving Hustler Magazine lampooning Jerry Falwell in a faux ad stating he'd lost his virginity with his mother while in an outhouse. The United States Supreme Court eventually ruled that reasonable readers would have realized they were seeing a parody.

click to enlarge The infamous Jerry Falwell Hustler 'ad.' Click the ad for a larger version.
  • The infamous Jerry Falwell Hustler 'ad.' Click the ad for a larger version.
Should the real Brugmann get litigious in the winter, too, Olson points out one more salient fact. He and the Guardian were the beneficiaries of First Amendment protection of satire in the early 1990s, when the courts handled a case regarding a joke letter in a 1991 Guardian parody. Penned in the name of actual city landlord Adam Sparks, it stated tenants who undergo electroshock therapy "are much more cooperative."

Sparks sued, but the court ruled against him:

[Sparks] emphasizes that a reader might not notice anything odd at

first looking at the "April Fool's section" and might not look far

enough to understand the joke. However, the very nature of parody and of

April Fool's jokes is to catch the reader off guard at first glance,

after which the "victim" recognizes that the joke is on him to the

extent that it caught him unaware. The instant "April Fool's section" is

not subtle. Only a viewer that read only the fake letter, accepted it

at face value despite its unusual message, and looked at nothing else

could miss the joke in this case, and that is not the average reader.


Too bad. The Guardian could have put in jokes about shitting out a fruit salad and gotten away with that, too. Next time, next time.

Follow us on Twitter at @TheSnitchSF and @SFWeekly


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About The Author

Joe Eskenazi

Joe Eskenazi

Bio:
Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" was a staff writer and columnist for SF Weekly from 2007 to 2015. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers.

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