Steve Lash//September 16, 2020
//September 16, 2020
A Salisbury supporter of Donald Trump has agreed to pay $100,000 to a journalist and outspoken critic of the president to whom the backer sent a tweet containing a message intended to cause him to suffer a severe epileptic seizure, which he did.
The three-year-old litigation ended after John Rivello, through counsel, offered to concede judgment on Kurt Eichenwald’s claim that Rivello sent a tweet to him in 2016 with a Graphics Interchange Format image, or GIF, containing a strobe-light effect. The strobe triggered the seizure in Eichenwald, a Dallas resident who has written extensively of his epilepsy and criticism of Trump.
Eichenwald’s counsel accepted the offer and Chief U.S. District Judge James K. Bredar filed the judgment Friday. Bredar, who presides in the federal courthouse in Baltimore, also ordered Rivello to pay the $100,000 in damages agreed to by counsel for Rivello and Eichenwald.
Rivello, who had denied Eichenwald’s allegations, faces a criminal charge in Texas of aggravated assault with a deadly weapon by “inducing a seizure with an animated strobe image.”
As was alleged in the lawsuit, the strobe contained in Rivello’s message emitted light waves that touched Eichenwald’s retina, generated an electric signal and caused the seizure, a cause-and-effect that can be discovered via an internet search.
“Kurt Eichenwald did not bring the case for the money,” his attorney, Steven Lieberman, said Wednesday.
Eichenwald, who plans to donate the $100,000 to organizations that support people with epilepsy, sought to assert the rights of individuals with disabilities and of journalists to be free from violence, Lieberman added.
The judgment makes “clear that attacks against people with epilepsy cannot be made with impunity” and that “there are consequences for attacking a journalist for doing his or her job,” said Lieberman, of Rothwell, Figg, Ernst & Manbeck PC in Washington.
“He was doing his job as a journalist and he was attacked in a vicious way,” Lieberman added.
Rivello’s attorney, Bruce F. Bright, distinguished his client’s “offer of judgment” – provided for under Rule 68 of the Federal Rules of Civil Procedure – from an admission or judicial finding of wrongdoing.
“It is simply an offer that defendant makes to the plaintiff,” said Bright, of Ayres, Jenkins, Gordy & Almand PA in Ocean City. “There is no factual finding by a judge or jury.”
Eichenwald, a former longtime reporter for The New York Times, a winner of two George Polk Awards for investigative reporting and a prolific author, has written about his epilepsy for the past three decades and in recent years has criticized via online posts Trump’s foreign business ties as a potential threat to U.S. national security.
Eichenwald alleged he received a message via Twitter on Dec. 15, 2016 that stated “You Deserve a Seizure for Your Posts” and contained a GIF of an animated strobe image flashing rapidly.
The seizure that resulted would have been more harmful had Eichenwald’s wife, Theresa, not placed him in a safe location on the floor away from furniture, according to his complaint.
The seizure also left Eichenwald susceptible to more bouts and requiring increased medication, the complaint stated.
The complaint added that Theresa replied to the malicious tweet with the statement, “This is his wife, you caused a seizure. I have your information and have called the police to report the assault.”
Police reported their investigation revealed Rivello sent the tweet under the Twitter handle @jew_goldstein, an anti-Semitic reference.
“Just like a terrorist who mails a bomb, or an envelope filled with anthrax, Mr. Rivello knew and intended his Twitter message with a flashing strobe light would cause serious harm – and perhaps even death – to Mr. Eichenwald,” Lieberman and his co-counsel, Jennifer B. Maisel, stated in the complaint.
The resolution of Eichenwald’s lawsuit followed Bredar’s ruling in 2018 that Rivello could be held civilly liable for Eichenwald’s seizure though he never touched him. Bredar held that conventional physical contact is not necessary to claim battery under Texas law, which applied in the now-settled case because Eichenwald, a Dallas resident, allegedly suffered the seizure in that state.
Physical contact can be of such “an amorphous nature; it is not always accomplished by means of a solid, graspable object,” Bredar wrote in denying Rivello’s bid to have the lawsuit dismissed. Bredar added that deliberately transmitting a loud noise over a phone to harm the listener has been found to constitute battery.
“If a person intentionally (or knowingly, or recklessly) causes another to come into contact with a harmful physical element, that is a battery under Texas law,” Bredar wrote. “Here, plaintiff generally alleges that defendant caused plaintiff to come into contact with a harmful physical element (i.e, the strobe GIF), and that is a battery under Texas law.”
The federal court had jurisdiction in the case based on the Texas plaintiff and Maryland defendant being from different states and the amount in controversy exceeding $75,000.
The case was Kurt Eichenwald v. John Rivello, Civil No. JKB-17-1124.i