Eichenwald v. Rivello

318 F.Supp.3d 766 (2018)

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Nature of the Case

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Facts

P is a journalist and author living in Texas. P writes for Newsweek and Vanity Fair. He worked for years at the New York Times, has authored four books, and has won several awards. P is an active Twitter user, having posted over 50,000 tweets. P has epilepsy. Medication has helped reduce the number of seizures, but he continues to experience them. P has been public about his condition in the past and in 2016 wrote an article, published in Newsweek, titled 'Sean Hannity: Apologize to Those with Epilepsy, or Burn in Hell.' P is often critical of then-2016 candidate Donald J. Trump and expressed those views in his writing and on his Twitter account. P 'received numerous threats and messages over the Internet.' P wrote about the online abuse for Newsweek in October 2016. P 'received a tweet from someone with the Twitter handle 'Mike's Deplorable AF.'' In that tweet 'Mike made mention of P's seizures and included a small video . . . . The video was some sort of strobe light, with flashing circles and images . . . flying toward the screen.' The video was 'epileptogenic,' meaning it 'triggers seizures.' P did not suffer a seizure upon opening this video. Two months later a Twitter user with the handle @jew_goldstein, replied to one of P's tweets. The replies to his tweet 'immediately loaded,' including the reply from @jew_goldstein. The tweet included (and immediately displayed) a gif that contained 'an animated strobe image flashing at a rapid speed.' The GIF contained the message 'YOU DESERVE A SEIZURE FOR YOUR POSTS.' P suffered a severe seizure. D intentionally caused photons to hit P's retina, causing P to suffer a seizure. P's wife witnessed the seizure and called the police. D, who lives in Maryland, operated the @jew_goldstein account. D discussed with others his intent to harm P by causing a seizure. A grand jury indicted him for the offense of aggravated assault with a deadly weapon. P has continued to suffer from the seizure. He experienced another seizure in his sleep, and he had to take increased medication, which left him sedated and disabled during the holidays. He 'required assistance from his family to perform routine tasks,' and was 'embarrassed, humiliated, and deeply upset,' as a result of this incident. P filed a civil suit for (I) battery, (II) assault, (III) intentional infliction of emotional distress, and (IV) 'purposeful infliction of bodily harm/prima facie tort under Texas law.' D has moved to dismiss Counts I and IV.