Lynn Greenky is professor emeritus of communication and rhetorical studies at Syracuse University.
Jack Sweeney, a junior at the University of Central Florida, says the First Amendment gives him the right to publish publicly available information about the flight paths of private jets owned by the rich and famous – including Taylor Swift.
Swift’s legal team – and many of her fans – say that Sweeney posting the comings and goings of the singer’s private plane on social media is technological stalking.
Sweeney also tracks the private planes owned or used by Elon Musk, Ron DeSantis, Mark Zuckerburg, Bill Gates, several Russian oligarchs and others, using public data from a global flight-tracking website, TheAirTraffic.com.
I am an attorney and a scholar who has written about the boundaries of the First Amendment. My advice to Mr. Sweeney: The First Amendment is a valuable ally, but its protections might not be available to you in this situation.
The arguments, explained
Since December 2023, Swift’s attorneys have sent Sweeney multiple cease-and-desist letters demanding that he stop sharing the real-time and precise information about Swift’s plane’s location. The most recent letter that has been made public accuses Sweeney of “intentional, offensive, and outrageous conduct” that threatens her safety and well-being.
Swift’s attorneys warn Sweeney that if he continues to publish her private travel information, she will seek legal action against him.
Sweeney, who is 21 years old, has gained fame, and perhaps a fortune, over the past few years with this work. He has several hundred thousand followers across multiple social media platforms, including Instagram, Mastodon, Discord, Telegram, X – formerly known as Twitter – and Threads.
Sweeney argues that he is merely reposting public information as a matter of public interest. Sweeney also says the public has a right to know that Swift and others are “trying to hide the bad PR of (carbon) emissions.” He insists that his passion for the environment adds constitutional protection to his activities.
Sweeney is correct that the First Amendment offers robust protection to political speech. Over and over again, the Supreme Court has reminded Americans that protecting political speech is necessary for a strong democracy – but even the shield of political speech has its limits.
The First Amendment does not protect speech that could further a crime. Speech that terrorizes another person, causing him to fear for his life, can be prosecuted. It is no defense that the speaker was trying to make a political point.
The trail of digital data
Technology makes the act of gathering information easier than ever before.
Corporations and tech-savvy private citizens like Sweeney can forage through the depths of the digital world, finding and publishing information that most people would rather keep confidential.
Today, though there are some state and federal privacy protections in place, anyone willing to pay for the data can usually learn about people’s buying habits or even where they live, work and play.
Dozens of unregulated companies collect this personal information and log people’s movements via mobile phones. They then store that information in large data files.
Sweeney claims his First Amendment right to publish information about others is as vast as his technological ability to gather personal information about celebrities and other high-profile people.
Tread carefully
The Department of Justice defines stalking as “a course of conduct directed at a specific person that would cause a reasonable person to fear for his or her safety or the safety of others or suffer substantial emotional distress.”
If a court determines that Sweeney is stalking Swift – which legally is considered conduct, not speech – his assertion that he is exercising his First Amendment right will not transform his act of publishing flight information into protected speech.
Sometimes, an action or a certain behavior is intended to communicate a message. For example, people have worn black armbands in the past to protest the Vietnam War. People also have publicly burned the American flag to show their disapproval of different political decisions or policies.
Wearing an armband and burning the American flag are not illegal activities, so the First Amendment protects the messages attached to these behaviors.
But if someone’s behavior used to communicate a message is unlawful or harmful, the First Amendment will not protect the speaker. In other words, a messenger can be held responsible for any conduct that causes harm, even if the behavior was intended as a form of speech.
Sweeney has not been prosecuted or sued for stalking anybody, so no court has determined if he has indeed engaged in that behavior. But if, as Swift contends, Sweeney’s actions are simply a more sophisticated form of stalking, the First Amendment will not transform his behavior into protected speech.
So, Mr. Sweeney, back to my advice: Tread carefully.
Technology is powerful, but so is people’s right to be free from terror and harm. The First Amendment may not be available to you to defend your behavior even if you cloak it in political speech.
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