John Rayne Rivello, 29, of Salisbury, Md., was booked into Dallas County Jail on Monday and released early Tuesday after posting a $100,000 bail. He was arrested in Maryland Friday on a cyberstalking charge in connection with the tweet.
Rivello couldn’t be located for comment. The Dallas Morning News reported that his lawyers, whom they didn’t name, issued a statement Tuesday saying that “their client, a Marine veteran who served in Iraq and Afghanistan, immediately apologized for the incident” and is “seeking help from the VA.”
In December, Eichenwald, a senior writer for Newsweek, received a tweet in Dallas of a flashing animated image known as a GIF. It included the message, “YOU DESERVE A SEIZURE FOR YOUR POSTS.”
Immediately after viewing the GIF, Eichenwald had an epileptic seizure that lasted for “approximately eight minutes,” during which he experienced “a complete loss of his bodily functions and mental faculty,” court documents state. Those impairments lasted, in some form, for several months.
“It was a very serious seizure,” Eichenwald’s lawyer, Steven Lieberman, told The Post. He said Eichenwald was “almost fully incapacitated for several days” and also had difficulty speaking for a period of time after the episode.
According to the criminal complaint, Rivello posed as Ari Goldstein and tweeted under the account @jew_goldstein, which has been suspended.
The indictment stated Rivello “knowingly” caused “bodily injury to … a disabled person … by inducing a seizure with an animated strobe image.” Rivello “did use and exhibit a deadly weapon, to-wit: a tweet and a Graphics Interchange Format (GIF) and an Electronic Device and Hands, during the commission of the assault.”
The charge is considered a hate crime because Rivello allegedly showed “bias or prejudice” against “persons of Jewish faith or descent,” the indictment said. Eichenwald’s father is Jewish.
It is, perhaps, the first time an animated image sent via Twitter has been legally defined as a “deadly weapon,” according to New York defense attorney Tor Ekeland, who represents clients accused of federal cyber crimes.
“I’m unaware of anybody being criminally prosecuted for this,” Ekeland told NBC News. “If it’s not the first time, it’s one of the first times this has happened.”
Though speech, including online speech, is generally protected under the First Amendment, experts said that protection likely doesn’t apply here.
“This doesn’t even get in the door of the First Amendment,” Danielle Citron, a legal scholar at the University of Maryland, told The Washington Post. “It doesn’t have expressive value. … It doesn’t express someone’s autonomy of views and opinions. It’s not contributing to the marketplace of ideas.”
“It was very much like sending anthrax in an envelope to someone, or sending them a bomb in the mail,” Lieberman said. “It wasn’t that it was going to convince Kurt that he was wrong about something, or hurt his feelings.”
The offending tweet was sent the same night Eichenwald appeared on Tucker Carlson’s Fox News show. The two argued heatedly, mostly about a Twitter message Eichenwald previously sent claiming President Trump was once institutionalized in a mental hospital. There is no evidence Trump was ever in a mental institution, nor did Eichenwald offer any, as The Post reported.
After the show, Eichenwald sent two tweets to Carlson stating, “[People] who gather and analyze intel at great sacrifice deserve to be honored,” specifically citing the CIA.
The seizure-inducing tweet was in reply to these.
Authorities said Rivello sent the image “as revenge for what he saw as the reporter’s critical coverage of President Trump,” as The Post previously reported.
Quickly after the episode, Eichenwald’s handle tweeted this:
This tweet was followed by a string of hateful tweets from various accounts, many bearing Pepe the Frog avatars, popular among the alt-right, as well as a GIF with a strobe effect. Another showed a doctored photo of Eichenwald without pants.
Eichenwald had long been public about having epilepsy, dating at least back to an 1987 column he wrote in the New York Times about being diagnosed with the condition.
Two months before his Dec. 15 seizure, Eichenwald wrote in Newsweek about a similar attack in which he received a tweet mentioning his vulnerability to seizures. Included was a video with strobe effects that contained images of Pepe the Frog. He was browsing Twitter on an iPad and was able to drop the device before suffering a seizure.
He tweeted that since the Dec. 15 attack, he has received more than 40 GIFs with strobe effects.
The FBI also found several direct messages sent from the @jew_goldstein account that mention Eichenwald. One stated, “I know he has epilepsy.” Another, linked to an image, read, “I hope this sends into a seizure.” A third read, “Spammed this at let’s see if he dies.”
Still another read, “[Eichenwald] deserves to have his liver pecked out by a pack of emus.”
Lieberman said his firm, Rothwell Figg, is handing the case pro bono, “because we believe that it’s important to protect journalists who form a critical component of a democratic system.”
The online reaction to Rivello’s indictment was swift.
The page stated, “If this goes to trial, it will redefine ‘trolling’ and what it means to troll online.”
Max Ehrenfreund and Antonio Olivo contributed to this report.
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