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 @clinthendler 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.
[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.