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GUEST OPINION: Satirical tweets may be fake, but they’re protected

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By KEN PAULSON
First Amendment Center
The queen of England had a rough weekend recently. It rained relentlessly and her youngest son, Edward, was stuck in the garden wearing an Easter Bunny suit.

I know this because I follow “Elizabeth Windsor,” a Twitter account that shares Elizabeth’s personal musings. It’s informative, amusing – and totally fabricated.

It’s one of hundreds of satirical Twitter accounts that adopt the persona of a famous person. Twitter – which prohibits impersonation – has even carved out an exception for what it calls “parody accounts.” That means you’ll find not-so-authentic tweets from Betty White, Mark Zuckerberg and even “Pharrell’s Hat.” There are raunchy tweets, ostensibly from Bill Clinton, and life-affirming tweets, channeling Oprah.

And then there are the tweets that lead to the Peoria Police Department raiding your home. On April 16, police seized electronics, phones and computers from the home of Jon Daniel, allegedly the author of “@Peoria Mayor,” a Twitter account bearing the photo of Mayor Jim Ardis and featuring profane posts on drugs and sex.

Offended by the 50 or so tweets, the mayor sought search warrants to identify the culprit. The process involved three judges and seven police officers. Apparently, there’s very little crime in Peoria.

The upshot: A roommate was charged with marijuana possession, but there’s been no prosecution for the renegade tweets.

And there shouldn’t be.

Parody is clearly protected as free speech.

Still, there is an Illinois law making it a crime to misrepresent yourself as a public employee, regardless of intent. Cue the U.S. Supreme Court, which in 2012 struck down the Stolen Valor Act, a federal law that punished those who claimed military honors they never earned.

“Permitting the government to decree this speech to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse government authority to compile a list of subjects about which false statements are punishable,” Justice Anthony Kennedy wrote in the plurality opinion.

If lying about the Medal of Honor isn’t prosecutable, it’s a good bet you can pretend to be the mayor of Peoria in a Twitter feed.

But what if you want to celebrate a long-dead film star? Surely you can create a Twitter feed using the handle @JamesDean and post your thoughts on why he was so iconic. Or so it seemed until this month.

Twitter allows users to use accounts with celebrity names as long as there’s no misrepresentation or damage to the famous person.

But in February, CMG Worldwide, which licenses Dean’s image, sued Twitter seeking suspension of the @JamesDean account, which streams reverential salutes to the late actor. The company contends the account is a misappropriation of publicity rights. Consider that. A company is arguing that free speech doesn’t include the non-profit use of the name of a public figure on a service invented 51 years after the actor’s death in 1955.

This is new and unsettling territory, made more so by Twitter’s recent suspension of @JamesDean without public explanation.

Both cases suggest a blind spot about emerging media, as though ideas are less valuable in 140-character increments.

No one would dream of raiding the house of an author who wrote a book mocking a public figure or trying to bar a magazine title chronicling a famous actor’s career.

Tweets are no less worthy of constitutional protection.

Ken Paulson is president of the First Amendment Center and dean of the College of Mass Communication at Middle Tennessee State University. He is also the former editor-in-chief of USA Today.