A newly enacted statute, Rev. Stat. 14:40.7 provides, in relevant part:
A. Cyberbullying is the transmission of any electronic textual, visual, written, or oral communication with the malicious and willful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen.B… (2) “Electronic textual, visual, written, or oral communication” means any communication of any kind made through the use of a computer online service, Internet service, or any other means of electronic communication, including but not limited to a local bulletin board service, Internet chat room, electronic mail, or online messaging service….
F. The provisions of this Section shall not be construed to prohibit or restrict religious free speech pursuant to Article I, Section 18 of the Constitution of Louisiana.
The penalty is up to 6 months’ in jail (or an up to $500 fine or both), except that under-17-year-old offenders are routed to the juvenile justice system.
This is not bad as the earlier version, which also applied to speech intended to “embarrass, or cause emotional distress.” But it’s still pretty bad, especially because it leaves unclear what exactly is a “malicious and willful intent to … abuse [or] torment.”
Would publishing an online editorial — or a blog post — condemning an underage criminal for his crimes qualify as “malicious and willful intent to … abuse [or] torment”? Or would it not be “malicious” because it would be justified by righteous indignation (in which case I take it courts would have to decide what indignation is righteous and what is not)? Note that the law isn’t limited to messages sent only to the target, but includes speech published to the world at large as well.
Would sending a message castigating an ex-lover for cheating (assuming both the ex-lover and the sender are 17) qualify as “malicious and willful intent to … abuse [or] torment”? What if the message “speak[s] insultingly, harshly, and unjustly” (unjustly, that is, in the view of the judge), which is the dictionary definition of “abuse” that seems most relevant to speech?
So either the law is too broad, or it will be narrowed only by reading “malicious” as limited to speech that courts dislike — which raises the risk of impermissible content and viewpoint discrimination. And until the narrowing takes place (and maybe even after that), the law will be remarkably vague.
The exception for religious speech is also probably unconstitutional, because it treats nonreligious speech worse than religious speech. Cf. R.A.V. v. City of St. Paul (holding that content-based distinctions are presumptively unconstitutional even when they operate within an unprotected category of speech).
UPDATE: Some commenters suggested that “malicious” is sufficiently well-defined because it arises often in legal contexts.
But the trouble is that means different things in different contexts. In the law of homicide, for instance, the “malice aforethought” that distinguishes murder from manslaughter is a term of art that means (more or less) extreme recklessness, knowledge, or purpose that the result will be brought about, plus absence of certain kinds of immediate provocation. This would indeed cover the examples I gave, since there it may be very likely that the speaker does indeed want to make the listener feel “abused” or “tormented” (if that’s what’s required), and that there was no immediately preceding provocation.
In the constitutional law of libel, “actual malice” means simply reckless or knowledge about the falsehood of the statement, pretty clearly not what’s intended here. In tort law, “malice” sometimes does mean, mor or less, “ill will” towards the target — but that too might be satisfied in the examples I gave: Someone writing an online article excoriating a young criminal may well feel ill will towards the criminal, and might well want the criminal to feel ashamed and “tormented” by guilt or by a sense of public condemnation. And sometimes “malice” means something else, such as “reckless disregard of the law or of a person’s legal rights,” which in this context is circular.
JohnM says:
Makes me wonder about 17 year olds taking dual-credit courses at their local community college — wonder if their instructors will have to be more careful about discussing grade disputes over e-mail.
There’s a desperate need for some clear definitions and clear boundary conditions on the applicability of this law.
July 9, 2010, 3:52 pmRobG says:
What is the standard for malicious here? If the legislature intends to borrow (or if the courts do) from the libel context and apply an “actual malice” type standard, it seems to me that the defendant’s intent will be the pivotal element.
I don’t know Louisiana law, but this could significantly limit the application of the law. Black’s Law Dictionary (that not-so-binding authority) lists one variant definition of “malice” as “a condition of the mind showing a heart regardless of social duty and fatally bent on mischief.” That interpretation would protect the online editorial EV was considering.
July 9, 2010, 3:59 pmwhit says:
the problem is the very idea is flawed from the start. instead of trying to criminalize malicious speech etc. and somehow micro-slice up the exceptions to somehow get around that pesky 1st amendment, legislators need to realize that it is not the job, or within the authority of govt. to criminalize being a meanie with words.
i’ve long claimed that WA state’s cyberstalking statute will never stand scrutiny either. it’s knee-jerk for the children’ism. “oooh, the internet. what it needs is some kneejerk ill-thought out laws!”
July 9, 2010, 4:10 pmKamal says:
Under laws with exceptions such as this:
What stops one from claiming their hate speech is religious? For example, a closeted gay man starts posting “tormenting” speech onto an openly gay teen’s myspace page and claims he is just ‘spreading the word of god’. Would this law give him a pass?
July 9, 2010, 4:21 pmKamal says:
If so (to my last question), if I likewise pretend that my harassing of someone was due to my being a pastafarian, would that exempt me?
July 9, 2010, 4:23 pmDuffy Pratt says:
I guess I’ll have to keep my opinions to myself about Justin Bieber, Twilight fans, the Disney kiddie star factory, etc…
July 9, 2010, 4:31 pmJohn Burgess says:
Does this means that yelling at kids to stay off my lawn is out, too? Or only if I mention their lack of class and character?
July 9, 2010, 4:43 pmPierre Corneille says:
As one commenter suggested above, wouldn’t requirement that the cyberbullying be done with “malicious and willful intent” actually limit the reach of the law? Not only would the would-be prosecutor have to prove that the accused engaged in the alleged cyberbullying, but also that the accused did so with malicious intent.
As to the point about it being unclear what “malicious and wilfull intent” means, I’m not a lawyer, but doesn’t this issue rise up often in criminal law and wouldn’t there be therefore some jurisprudential precedents that would help judges and juries figure out what counted as malicious intent. I stand to be corrected, but my understanding was that laws often make intent (is the correct term “mens rea,” or is it something else?) a requirement in determining guilt or innocence.
I’m not saying any of this to defend the statute in question. I don’t have an opinion on it yet. But in my layman’s eyes, Mr. Volokh’s particular point about the “intent” doesn’t seem any more problematic than the notion of “intent” generally.
July 9, 2010, 4:45 pmwhit says:
there is a simple way to handle crap like this, and it doesn’t involve passing unconstitutional law or burdening the system (and cops) with stupid complaints “somebody was mean to my precious child on the internet. i want JUSTicE!”
if somebody is cyberharassing you,
1) tell them in a response in clear language – do not contact me any more or i will pursue court/criminal action. save the sent email of course.
2) block that email address
3) if it continues, send the same warning ONE MORE TIME.
4) if it continues, contact the police, make a report for DOCUMENTATION purposes and seek a protective order.
5) once the order is served, then ANY contact, regardless of content is a crime. bright line. simple, easy, and no constitutional questions required.
July 9, 2010, 5:07 pmJohnM says:
This is probably already well-trodden territory for most of you, but since I’m not a lawyer I’ll ask anyway:
How is jurisdiction going to be decided here? If I’m a Louisianan and I make a post on Facebook maliciously tormenting a 17 year old Louisianan and the Facebook server is located outside of Louisiana… what then? What if I’m not Louisianan but the child is? What if I’m Louisianan and the child’s not? What if neither I nor the child are Louisianans but the server is in Louisiana?
July 9, 2010, 5:12 pmwhit says:
john, you don’t need to be a lawyer. these types of incidents are prosecutable in EITHER jurisdiction – where the communication originated, or where it is received. we (police) deal with this all the time. domestic violence victim is threatened (receives the communication) in city X, but it was sent from city Y. either city can prosecute, but usually it will be city X.
it doesn’t matter where the facebook server is. i guess it might be prosecutable there, but i’ve never heard that happen. the crime will be prosecuted where the threat (etc.) originates or where it was received.
July 9, 2010, 5:15 pmJohnM says:
So then if someone maliciously torments a person in, say, an online video game without realizing (a) that the person they’re tormenting is from Louisiana or (b) that the person is underage… is that prosecutable? There seem to be all kinds of things potentially prosecutable here.
July 9, 2010, 5:20 pmKen Arromdee says:
You do know the details of the Lori Drew case, right? Drew pretended to be a boy who showed interest in the girl and then dumped her. Part of the reason this was harassment was because of its deceit–both the deceit of not being a teenage boy, and the deceit of “his” original interest being faked. How exactly can you tell someone to stop harassing you when part of the reason that it’s harassment is that it’s deceptive and you don’t know it’s deceptive yet?
July 9, 2010, 5:25 pmsk says:
Non-snarky question:
Is non-cyber harassment at all legally limitable? In other words, if an adult were insulting, or yelling at, or cursing at a 14 year old* in person (Say, at a public pool) is there any way for the law to stop him? Or would it all be simply other local adults essentially putting social pressure on the offending adult to stop? Would there be any reason to call the cops?
If so, couldn’t a cyberbullying law be crafted to match the law in question here?
If not, is it really the case that publicly insulting a kid is only stoppable by 1) shaming the proponent, or 2) essentially threatening him with an (illegal) punch in the face?
sk
*note that technically, it isn’t limited to minors. If an adult were to follow you around, and in a non-threatening manner, simply tell you that you are ugly, to your face, repeatedly (unceasingly), is there nothing you could do? (my guess is that it could be crafted to be ‘stalking’ or threatening, even if it isn’t, and a restraining order would be issued-in essence, the stalking law would be used to halt simple irritating harassment. But I’m no lawyer).
July 9, 2010, 5:41 pmwhit says:
i DO know the details of the lori drew case. i also know that many laws are/were/or will be passed in kneejerk response to such an unusual incident. clearly, the behavior was egregious, but imo it was purely the kind of thing that should be CIVILLY *not* criminally actionable.
there is this thing called “caveat emptor”. it applies to RELATIONSHIPS, as well as purchases.
was there intentional infliction of emotional distress? yes. was it “beyond the pale”? yes. should that be CIVILLY actionable? yes
is she to “blame” for the suicide? imo, no. anybody who would commit suicide over such a farce (assuming arguendo it was the primary/sole motivator for the suicide) was clearly pretty unbalanced.
people are deceptive in relationships (cyber and otherwise) all the frigging time. so what? is that criminal? no, and it shouldn’t be.
July 9, 2010, 5:42 pmworried dad says:
Is there a parental exception? If I text my kids to remind them to do their homework and chorers, and threaten loss of privileges, is that a willful intent to “coerce,” since I do want to coerce them?
July 9, 2010, 5:48 pmwhit says:
first of all, the law in my state doesn’t distinguish between adults and kids in this kind of thing, and imo shouldn’t.
if this incident happened at a public pool, then it would be up to the lifeguards to tell the person to knock it off. if the person continued, call police and request to have the person removed. THEN, if they refuse to leave, they get arrested for trespassing. i used ot be a lifeguard fwiw, and in california many public beach lifeguards are also (technically) peace officers iow with police powers to a large extent, but i digress.
but yes, generally speaking, calling somebody names/being a meanie is very rarely a CRIMINAL thang.
many states (fortunately, not mine) have rather broad disorderly conduct statutes that would (arguably) allow the cops ot arrest the person IF they continued to mouth off after being told to stop, especially in a loud, boisterous manner such that they were creating a “breach of the peace’ etc etc.
but generally speaking, insulting somebody is, should be, and hopefully will be constitutionally protected.
and yes, there is the whole “fighting words thang” but that’s more than a mere insult.
also, the difference between the pool scenario and the cyber scenario is that the former involves “public order” and the latter does not
July 9, 2010, 5:49 pmKen Arromdee says:
So the argument that you can tell them to stop doesn’t make any sense. You don’t know they are being deceptive, so you can’t tell them to stop doing so.
July 9, 2010, 5:50 pmwhit says:
no, the argument makes perfect sense in the VAST majority of “cyberbullying” cases which do not involve elaborate false personas, as any cursory study of the issue (i’ve responded to and investigated such complaints for many years) would show you.
so yes, my advice would not have worked IN the lori drew case, but would in the VAST majority of “cyberbullying” cases where essentially somebody was being mean (god forbid) to somebody else’s precious child! oh, the horror.
the lori drew case was a tragedy, but it was a CIVIL issue, as was explained here clearly by some very good legal minds.
July 9, 2010, 5:57 pmSk says:
“if this incident happened at a public pool, then it would be up to the lifeguards to tell the person to knock it off. if the person continued, call police and request to have the person removed.”
If it is legal to insult people, then what is the basis for calling the police? What is the justification for the police removing that person?
I think you’ve answered, and kind of made my point. They would be removed/arrested under a broadly written ‘disorderly conduct’ or ‘breaching the peace’ statutes, that are used de facto to limit speech.
In other words, we limit first amendment rights all the time-using ‘breaching the peace/disorderly conduct/stalking’ type statutes. In essence, you can insult people a bit, but if you take it too far, you’ll be removed or arrested. We ‘claim’ it is a threat to the public peace, but in fact, its a statute to be polite.
That being the case, what is wrong with either 1) doing the same thing in the cyber arena (say, you can call a teenager ‘fatty’ once or twice, after which it will be interpreted as stalking-just as it would be in the real world), or 2) invalidate these de facto limitations on first amendment rights, and guarantee the public pool bully the right to harass his victims as long as he doesn’t threaten them?
Sk
July 9, 2010, 6:22 pmohwilleke says:
A “malicious and willful intent to … abuse [or] torment” is surely more specific and narrow than many other statutes on the books, such as the federal telephone harassment statute, or most state law prohibitions against disorderly conduct.
In context, “willful intent to . . . abuse or torment” appears to refer to an intent to cause serious emotional harm to a person, it would be factually rare that this could be achieved in a single instance because generally one cannot abuse or torment someone so easily.
Malicious, in this context, would appear to mean without privilege or legal justification, in addition to emphasizing an intent to cause harm.
Willful also cabins the offense to known and intended victims, rather than accidental slights or unforeseeable impacts. Communications that only have bite because of private facts about a victim that the offender doesn’t know wouldn’t be covered. For example, repeatedly and annoyingly sending a picture of a random young woman to the victim would presumably not be within the scope of the statute if the person sending it didn’t know that the picture was actually the picture of the victim’s sister who committed a suicide for which the victim feels guilt.
Willfully also appears to cabin the offense to a known and intended victim, rather than some intangible somebody who might be out there somewhere. It appears that there must be electronic communications specifically directed at a specific “person under the age of eighteen.”
The fact that it only applies to communications directed at specific children (and that very young children presumably aren’t receiving unfiltered electronic communications), also overcomes many free speech concerns.
The existence of a misdemeanor statute specifically covering this conduct may also lead to interpretation of otherwise vague more serious offenses to exclude conduct within this statute. So, this statute may practically speaking discourage felony prosecutions of conduct in favor of misdemeanor prosecutions.
The title of the offense, “cyberbullying” also provides context in which to apply the other words of the statute, as “bullying” is a word with a great deal of context in the culture to inform what is meant by the legislature.
July 9, 2010, 6:32 pmwhit says:
just because it’s LEGAL to insult people does not mean that it’s the sort of behavior that has to be put up with at a public pool, any more than diving in the shallow end is.
there is no “law” against diving in the shallow end, but if you do it you will be asked by the lifeguard to knock it off. if you continue to do it, you will be asked to leave, and if you refuse , the police will be called.
just because something is legal does NOT mean that the “authorities’ don;’t have… wait for it… authoritah.
like i said, i DISAGREE with disorderly conduct statutes that are overbroad and overused, but GENERALLY speaking, even when these are employed the people are given ample warning to cease and desist before they are … finally… arrested. many of the cases are dumped or pled down to a small fine, and that’s because they are used primarily to “maintain order” (cue: omg how fascist!) vs. other sorts of “justice” thangs.
this is the kind of thing that high falutin’ lawyering RARELY deals with , but your average street cop deals with ALL the frigging time.
July 9, 2010, 9:20 pmwhit says:
oh, and also it’s not so much a be “polite” thing in terms of WHAT you say, but HOW you say it. if you are saying at a conversational street tone of voice, “man look at that fat lady in the swimsuit” over and over, that’s a bit different than YELLING it so it causes a DISTURBANCE.
if you yell “i hate soggy pizza” over and over again at a county pool, you are going to be asked to stop. not because you don’t have a right to opine on pizza, but the fact that YELLING it is disturbing everybody else.
there are lots of public fora where you can get away with much more “expressive” speech. a public pool, like a library, has limits.
July 9, 2010, 9:24 pmLaura(southernxyl) says:
The problem here was that Megan actually was unbalanced. She was under care for depression. I don’t think this means Drew was not to blame – actually I think this makes what she did even worse, since she was aware of this.
Even unbalanced people deserve not to be driven to suicide. I’d think other people should be more considerate of them, not less.
July 9, 2010, 10:01 pmwhit says:
let me make this clear – she is not CRIMINALLY liable. is she civilly liable? i’d have to see WAY more evidence to have an opinion either way.
generally speaking, i think people are responsible for their own behavior. that includes… wait for it… suicide. it aint ozzy osbourne’s fault either.
and if she WAS mentally unbalanced, under care for depression, etc. than maybe her parents should have been MONITORING her behavior/internet use…
July 9, 2010, 11:02 pmLaura(southernxyl) says:
Well, if I’d been Megan’s mom, I would have. My daughter wasn’t being treated for depression, but at that age you bet I was monitoring her internet use. But it’s not Megan’s fault that her mom didn’t. I’m sad for her mother, to lose her like that, but the primary victim here is Megan.
Whit, if you saw someone who was standing on the sidewalk lose their balance, and somebody else saw this, went over and bumped them real hard just for the hell of it, so they fell, and hit their head and died, what would you think of that person doing the bumping? If he said, “It wasn’t my fault! He was unbalanced!” would you think that was a valid excuse?
July 9, 2010, 11:09 pmwhit says:
laura, i am not sure you are grokking the distinction here.
1) i am not EXCUSING the behavior in the lori drew case. i am saying it isn’t, nor should it be … criminal
2) i do not think people should have some kind of affirmative burden on them that they can’t be an assmunch around depressed people lest they get blamed for a subsequent suicide. at least not a criminal legal burden.
your analogy is also not on point btw. bumping that person would have been ASSAULT. a crime, and rightly so. contrarily, calling somebody a name or messing with their head – isn’t
July 9, 2010, 11:13 pmLaura(southernxyl) says:
Well, we disagree, Whit.
I think that adults have an affirmative burden not to take action that has no other reason than to cause emotional distress to troubled children. You don’t. And there it is.
July 9, 2010, 11:20 pmPatHMV says:
I think what was done in the Lori Drew case is malicious and wrong enough that it should be criminal, but I don’t think it’s possible to craft language which targets only that level of egregiousness, and isn’t so broad as to reach mere insults and taunting and the sort of stuff that people do just have to live with. If I could identify language which would cover that type of egregious action while clearly not covering trash talking and kids-being-kids (even mean kids) insults, then I would support it.
My own solution would be somewhat along the lines suggested earlier, but I would make it easier to formally order someone to have no further contact with you. I don’t think you should have to go to court to get a protective order. You should be able to tell someone directly that they are not to direct any further communications at you, and if they do after that, they are guilty of some sort of stalking offense. This would work just like trespassing. You don’t have to get a court order to forbid somebody from entering your property. You can just tell them that they are not allowed on your property, and if they refuse to leave, or enter again after you’ve told them that, the police can arrest them for trespassing. You don’t have to go get an injunction first. And, of course, parents would have the right to forbid anybody else from speaking to their children.
July 10, 2010, 1:31 amCurt Fischer says:
I won’t speak for whit, but…I don’t understand how you get from “affirmative burden” to criminal liability. I agree with you that adults have an affirmative burden not to take action that has no other reason than to cause emotional distress. It’s a burden called “decency” or “not being an ass”.
I disagree with you that this burden is best imposed on people using criminal law. Does the fact that Lori Drew has been acquitted mean that you regard her actions with less contempt than you would if her conviction had stood? Why legislate morality, isn’t well-publicized opprobrium at least as good an enforcement mechanism?
July 10, 2010, 2:15 amwhit says:
they do . mORALLY. but not LEGALLY. people have an affirmative burden to be nice to each other, regardless of whether they are troubled children or just joe next door. people SHOULD be civil and nice to each other. but the law shouldn’t step in every time somebody is a meanie
do you grok the difference? it is not the job of the law, or law enforcement to legislate every mean thing people can do to each other. god forbid we ever sink to that level.
July 10, 2010, 3:41 amwhit says:
i think you are wrong on so many levels i don’t even know where to begin. first of all, GENERALLY speaking, if you tell a guy to leave and he refuses , the cops are called, and they will act as your agent and tell the guy to leave and only THEN will they make an arrest for trespassing if he refuses. that’s pretty much par for the course in all 3 agencies i have worked for. and yes, generally speaking, if you are smart, you WILL get a court order after that incident.
i also think it’s ridiculous that somebody should be arrested (or even charged) merely because you told them not to talk to you any more. how many thousands of times do people say “i never want to speak to you again” in relationships and a week later, they are lovey dovey and moving back in. by placing a burden on the complainant to seek a court order, you formalize the process, you eliminate he-said/she-said bullshit etc. that’s the way it should be. in email cases, it’s pretty darn simple to simply block the person’s email address, also. right to the spam filter, and you never see it.
parents DO have the right to forbid somebody else from speaking to their children – IF they get a court order. without that, what if the KID initiates or requests contact, then the person has the claim that the kid requested it (or they can lie and make that claim) and it’s way more complicated and he-said/she-said (do you see a pattern here) than if the parents GET AN ORDER and then even if the kid INVITES the contact, it’s still bright line illegal.
i actually had a couple of cases like that, where the parents did the right thing, got the orders, etc.
i had one case where the parents got the order against a male couple who they felt were grooming their kid (they bought him expensive stuff, etc.) and these guys after being served went to the trouble of arranging this whole meeting in another state. they were pretty smart, but not smart enough (buying the kid’s plane ticket with their credit card was one big mistake) and we ended up charging them with conspiracy to violate the order, etc. and it all stuck.
but here’s something we see in the real world all the time. people SAY one thing e.g. “i never want you to talk to me again” or “i want to press charges” and a bunch of time is wasted taking statements, writing reports and stuff when it is often difficult to prove (the he-said she said stuff) or they change their mind – FREqUENTLY. by formalizign the process, you eliminate the vast majority of that crap and eliminate people getting arrested for no reason. if you spend a little time in the real world, you realize that people often say one thing in the heat of the moment, etc. and later on, it’s no big deal and the state wastes time and energy in satisfying people’s immediate desires, not justice. not to mention the whole he-said she said thang.
if it is THAT important that johnny dirtbag stop emailing you or talking smack at the local bus stop – then it’s important enough to get an order.
July 10, 2010, 3:55 amNew Criminal says:
Shame! Everyone who posts here on this forum is now a criminal! FOR SHAME you criminals!
July 10, 2010, 9:31 amLaura(southernxyl) says:
“I won’t speak for whit, but…I don’t understand how you get from “affirmative burden” to criminal liability.”
I don’t either, since I don’t recall typing “criminal liability”.
My point was that Whit seemed to be saying that what happened to Megan was not a big deal; she was unbalanced, hence inherently flawed, I guess, so her death was no great loss. I’m sorry, Whit, I know you don’t think that, but the dismissive way you said that such a person must be “unbalanced” actually reads that way.
And I don’t see a big difference between physically pushing someone you know to be physically off-balanced so that they fall, and psychologically pushing someone you know to be mentally off-balanced so that she falls. What Drew did was no accident – she targeted Megan on purpose and deliberately took advantage of her vulnerability. Everybody’s hypotheticals about parents grounding kids by email and so forth are so far off the mark, they might as well be saying that if you can’t drop your kids off a bridge or drive them into a lake, you obviously can’t rid yourself of them for a weekend by dropping them off at grandma’s.
July 10, 2010, 9:37 amPatHMV says:
Whit, I think we’ve agreed with each other enough on this forum over the years that you can stop with the “real world” snark. I’ve been a prosecutor, spent 2 years doing misdemeanors day in and day out. I’m quite familiar with the people encountered in the “real world,” thank you very much.
As for trespass, yes, what you describe is what the normal practice is, and it’s a wise practice, but it’s not the law. The law allows the police to arrest the trespasser because he refused to leave at the owner’s insistence. It makes for an easier and more certain case in court if the cops tell him to leave and arrest him for refusal to follow THAT instruction, because then the only witness you need is the cop, not the owner. And it’s good police work, because maybe the suspect just needed to be metaphorically slapped upside the head to understand what he needed to do, and the cops repeating the owner’s instructions to leave provides that opportunity.
But the law is that you can indeed arrest him, in your discretion, simply because the owner told him to leave and he didn’t. The owner does not have to incur time and expense to go to court to get a piece of paper, and then wait until the sheriff gets around to serving the paper, before you as a cop can arrest the trespasser.
And, of course, in the “real world,” if you’ve got a guy who keeps trespassing at the same place, then you, as a cop in the real world, generally become more proactive, and arrest him as soon as you show up to the call. If the guy is abusive or obnoxious beyond his mere trespassing, then you start piling on the charges in hopes that he gets the message to stop trespassing on that property.
Now, back to the Lori Drew type case. My teenager is getting repeated phone calls and taunts. I tell the person to never call our home again, or otherwise contact my child. She refuses to listen to me, and continues. I go to court and apply for a temporary restraining order and preliminary injunction.
What does that entail? I have to take off from work and go to some strange building I’ve probably never been in and meander through a confusing bureaucracy until I find the place which has a self-help form to request a restraining order. Then I have to figure out how to fill out this form, which is (in my experience) generally written with the expectation that the two parties to the order (the person seeking it and the person to be restrained) once had some sort of domestic relationship. Then you see if the judge will sign it or not, and then you wait for the sheriff to manage to actually serve the person.
THEN, and only then, is it legally binding on the other person such that they can be arrested if they don’t comply.
But let’s suppose that the defendant is an obnoxious bitch of the sort who enjoys tormenting troubled children, and she actually shows up in court for the hearing on the preliminary injunction, and asserts that there is no basis for this order. The judge turns to me and asks me for my evidence that she’s been harassing my child. I start to explain generally about the annoying phone calls and e-mails, and the judge starts asking for details, how many calls, what exactly did the e-mails say. Well, I say, my daughter told me… And I’m stopped, because that’s hearsay. Besides, I may or may not have saved any of those e-mails, and I didn’t keep a log of the phone calls. I’m not an attorney, how was I supposed to know I needed to do that to get evidence to justify the restraining order?
So the judge has no choice but to dismiss the preliminary injunction, which dissolves the temporary restraining order (sure, he gives a stern warning to the defendant, but that has no legal impact at all), which lets the psychopath continue harassing my kid, forcing me to take the law into my own hands if I want to stop her, or, now that I’ve been educated about documenting the evidence, spent the next month logging every communication, trying to record every call, etc. Meanwhile, my kid, who I told could trust me and the courts to take care of it, is now in even worse shape than ever.
Now take my law. I’m fine with amending my proposal to require some sort of formality, but not a restraining order, because that requires the courts, and there is not in fact a general law which allows one person to order another person to never try to contact them (or their kids) again. I mean, if you want the law to say that any person can ask the judge to issue a no-contact order, and the judge is required to issue the order simply because the person asks for it, fine, I suppose that would be better than nothing. But let’s assume my law is just as I stated it originally.
In your reaction to it, you suddenly act as if the cops, who you assert have all the discretion in the world to not arrest trespassers, will have no discretion at all, and will suddenly be forced to arrest somebody because his pissed-off wife is now claiming he didn’t heed her instruction to “never speak to me again, you cheating bastard!” Seriously? Of course that’s not how it would work. No, you would do just as you do now, and tell the guy, “sir, she clearly doesn’t want you around right now, so do you have somewhere else to stay tonight?” The only difference is, if he refuses to obey your (the cop’s) instruction (as her agent, as you point out), then you can arrest him right then.
In the Lori Drew scenario, you go to the malicious bitch and say “ma’am, Megan’s father tells me he told you not to speak to his child anymore. Look, I’m not trying to figure out what happened before or anything, but I’m informing you that he has a legal right to order you not to contact his child, and if you do it again, I’m going to have to arrest you. Do you understand?”
And if, when she makes contact again, and you go out and talk to her, she says “well, Megan e-mailed me first” or something like that, then you can do some investigation and once again use your discretion…. just as you do routinely in domestic cases and other ugly cases involving interpersonal relationships. But this time, there IS a law which can be used (and one which is no more arbitrary than trespass law) to stop the malicious behavior.
July 10, 2010, 10:17 amKatahdin says:
@PatHMV: thanks for a thought provoking post. I have to ask, though, for email and phone harassment, doesn’t the ‘delete’ key and caller ID offer a pretty simple way to stop the harassment?
July 10, 2010, 11:45 amUrso says:
I agree that Pat’s post was excellent. As to your point, there are ways around those measures. *69 springs to mind. And to know an email has to be deleted, you need to at least glance at it first. More generally, do you really want to put the burden on the victim to avoid harassment? It’s like telling a woman whose ex husband has been stalking her, ma’am, couldn’t this all be avoided if you just moved to another state?
July 10, 2010, 1:35 pmwhit says:
actually, no , in some states the law does NOT allow the cops to arrest the trespasser based on a PAST act, because in some jurisdictions, trespass is an arrestable misdemeanor only in the officer’s presence. in some jurisdictions, it is a misdemeanor presence exception, but even then – yes. if the guy is just being a jerk (like refusing to leave a restaurant and the cops are called), the general practice is to “trespass” him there, and even fill out a form showing so. so, if he comes back – he gets arrested period. those forms usually go for one year.
as for the phone call example.
first of all, at least in my jurisdiction, it’s an anti-harassment order, not a restraining order. it takes about 1/2 an hour to fill out the form, and not much longer to have a judge sign it. ime, in at least 3/4 or more of the cases, though, merely threatening the person with such an order will prevent further contact.
yes. there is a hearing in 2 weeks, because this is america and BOTH people get to tell their side of the story. why is that bad? if she is repeatedly calling your daughter and arresting her there will be PHONE records showing the calls and the time of the calls. if your state is 1 party consent, you can record them easily and if 2 party, you nearly need to advise and THEN record. big deal. easy evidence. although the phone records themselves showing all the incoming calls and NO outgoing calls should establish the pattern of harassment alone. it’s not a criminal case, it’s merely civil, you are not proving a crime beyond a reasonable doubt, etc.
in brief- this process, in the real world (sorry, that’s what i see day, month and year after year) WORKS.
it’s not rocket science. it also offers greater protection against false complaints (among otherthings people are way less likely to get an order and sign an affidavit falsely than merely report X to police).
your daughter should understand that the justice system is not there to do whatever you want it to do, it must balance the rights of the accused and the alleged victims, and that people have to take at least a LITTLE responsibility on their own to help themselves. i’m a libertarian. i believe that. if it’s annoyoing enough where you want the cops to arrest the person, then you can spend an hour or two at the courthouse getting the order. and like i said, MOST of the time, a mere warning from the cops to “knock it off” and/or your threatening to get an order DOES stop the calls.
and here’s the thing about your last point. IF you get the order, even if the complainant emails her first, if respondent to the order replies it would still be a violation. period. it would be a bad idea, because the judge might throw out the order after the fact, since you are violating the “spirit” of the order, but unless it’s a two way order (extremely rare), it’s irrelevant if the petitioner initiaties contact. the respondent still can;’t respond. at least where i work.
July 10, 2010, 3:27 pmwhit says:
there ARE ways around it, but i personally never answer a call on my cell from a # i don’t recognize and that will prevent any harasser from having any effect. and in my experience (scores of such incidents), they give up pretty quickly IF the recipient makes it clear that they will seek police assistance and does not play along by responding and showing that they are feeling harassed.
it’s a psychology thang. the harasser WANTS a response. he/she WANTS to get a reaction. if you don’t GIVE them a reaction, they almost always cease. and if not, — get an order. i don’t think that’s an undue burden if you want the police to act on ARRESTING somebody merely for being annoying. we are not talking assault, or robbery, or burglary. we are talking – being annoying
July 10, 2010, 3:31 pmwhit says:
that is a large part of my point. when it comes to email, especially, it’s not like somebody taunting you and standing in front of you and yelling at you, following you down the street, etc. you CAN simply press delete. if it is THAT annoying that you have to (god forbid) route somebody to your spam filter, and that isn;’t enough to satisfy you – get an order.
we are talking “annoying behavior” NOT stuff like assault, threats, etc. if the emails are THREATENING, of COURSE the police will take action. threats are in and of themselves a crime (generally speaking – see “true threats”). but merely calling people names, generally isn;t, nor should it be.
July 10, 2010, 3:34 pmwhit says:
that’s not what i said at all. i said it IS a big deal. i said it was not a CRIMINAL thang. those are ENTIRELY different things. i do see a huge distinction (and you don’t) as does the law between PHYsICALLY pushing somebody … if they are at a cliff’s edge, and you do that – that’s murder. if you act like a jerk towards them and call them names, it is NOT the same thing. if somebody is SO metnally unstable that such activity leads them to commit suicide, no it is NOT the same thing as physically pushing them off a cliff. it’s case for civil court,and they should get sued for everything they have.
which is what the law says, btw. the criminal case was a sham, and it was thrown out
July 10, 2010, 3:37 pmLaura(southernxyl) says:
All right, I’m going to address this one more time and then I’m going to stop.
Whit, you said this:
Yes, Megan was unbalanced. She was being treated for depression. Drew knew this. You think Drew bears NO responsibility for Megan’s suicide? Really? She said, pretending to be a boy who’d liked her and then dumped her, that everybody would be better off if she was dead. She knowingly did that to a depressed 13-yr-old.
Your point about how Megan being “clearly pretty unbalanced” is that you think it exonerates Drew. I see it as exactly opposite.
Also, you people talking about just hitting the “delete” key – are you a 13-year-old clinically depressed girl? How in the world can how you imagine you would act, apply to this kid?
July 10, 2010, 9:58 pmAdam says:
From a First Amendment jurisprudential perspective, what work can the “under the age of 18″ language be doing to constitutionalize what would be an otherwise clearly unconstitutional statute?
Is it that associational rights with persons under 18 are limited (Jett v. Dallas Indept. Sch. Dist (1989))? Does that principle work if the speaker is under the age of 18 as well?
Or do people think it is the principle that like saying “Fire” in a theater or uttering “fighting words”, cyberbullying is somehow per se harmful when directed at someone under 18 but is not when directed at someone 18 or older?
July 11, 2010, 1:56 amReaderY says:
This law may have overbreadth issues, and one can come up with hypothetical horribles within the arguable statutory definition. But the Louisiana courts could fairly easily give it a narrowing construction that would save it. A great deal of the conduct the statute covers is both clear and clearly constutitutional.
The overbreadth doctrine has, since U.S. English, been interpreted somewhat narrowly of late. Even in a First Amendment context, the fact that a naive (or unofficial) construction of a law could conceivably have unconstitutional meanings doesn’t mean that courts are required to accept that construction.
July 11, 2010, 4:08 amwhit says:
i said she had no CRIMINAL liability.
i think the case is perfect for a civil trial.
and the law agrees with me.
July 11, 2010, 7:02 amwhit says:
when you consider the kind of smack talk teenagers ROUTINELY engage in, the idea that they are some kind of fragile precious flowers who need to be protected from people who say mean things to them is offensive, paternalistic, and ridiculous. and that we need to do this via the barrel of the gun (which is what a criminal law is), is insane.
there are adequate ways of dealing with this stuff, as i explained without calling johnny law in to arrest somebody for calling somebody a mean name.
July 11, 2010, 7:04 amwhit says:
fwiw, i’d love to see this website address the wa state cyberstalking law. i have long believed it is also overbroad and has constitutional issues.
July 11, 2010, 7:05 amLaura(southernxyl) says:
Whit, my point was not to say that what Drew did should be criminal (although I do.) My point was to object to your calling Megan “unbalanced” as though that fact exonerated Drew.
Adam:
I can live with that.
Whit:
Not all teenagers engage in it. Mine didn’t. The kids that don’t, don’t come to your attention and aren’t a blip on your radar. But they’re people too. Tell me, how many sensitive 13-year-old girls are you personally acquainted with? How is it that you know it’s unreasonable to think that they would be hurt by something that wouldn’t hurt you, Whit? Do you really think a 13-yr-old girl should be expected to think and act exactly like a grown man would in every circumstance, and if they can’t, well, too bad?
July 11, 2010, 10:29 amwhit says:
believe it or not, i have contact with scores of kids, primarily through sports (about 60:40 boys:girls) and yes, that includes those oh so sensitive 13 yr old girls.
and no, i don’t think a 13 yr old girl should be expected to think and act exactly like a grown woman or man.
i do think that calling a 13 yr old girl a “poopy-face” with (god forbid) MALICE should not be a crime.
sticks and stones, y’know. it’s worked for decades. there is not something magickal about the internet such that when an insult is transmitted via instant message or email it somehow becomes worse (and criminal) vs. somebody saying it to your face. in fact, generally speaking, the opposite is true.
and that goes for 13 yr old boys, too. this is (at least) the 2nd time i can recall wherein you at least imply a sexist standard in the law, when the law should be gender neutral in stuff like this. cyberbullying is cyberbullying, whether it’s a 13 yr old girl or 13 yr old boy.
July 11, 2010, 11:40 amLaura(southernxyl) says:
I agree that we shouldn’t differentiate betw. girls and boys here. I thought we were talking about Megan, who committed suicide, and not because she was called a poopy-head.
Let’s go back to my analogy that you changed all up to say that somebody was pushed off a cliff.
Scenario A: A man is standing on the sidewalk. Another man comes along and because he is annoyed, he jostles against the first man. The man doesn’t fall but he is staggered, and he says, watch it, buddy. You wouldn’t arrest the second man, probably, if that was an isolated incident.
Scenario B: The exact same thing happens except that, unbeknownst to the second man, the first man happens to be off-balance, and he falls and strikes his head on the sidewalk and dies. This kind of thing happens, by the way, and I believe it’s called involuntary manslaughter. The second man might not be charged, or he might get probation, because it’s just one of those things; he reasonably thought he was only jostling the first man and didn’t expect to knock him over.
Scenario C: Exactly like the second scenario except that the second man knew the first man was off-balance and expected him to fall, and meant for him to. Maybe he didn’t mean for him to die, but he definitely was pushing him over.
You see no difference in liability, right, in these three scenarios? The first guy just needed to not be off-balance? And as far as the second guy, jostling somebody on a sidewalk is assault, but pretending to be a boy interested in a depressed teenager for the purpose of stringing her along and painfully dumping her, and telling her that everybody would be better off if she was dead, is the equivalent of calling her a poopy-head? I doubt that you’ve actually had dealings with kids at all, if that’s the case.
July 11, 2010, 12:35 pmwhit says:
i see a difference in liability as does the law.
otoh, people in this society have no legal duty to be nice to people who happen to be clinically depressed (you would be surprised how many kids are on anti-depressants btw. i know, having investigated numerous drug related cases with juveniles), because if they say something mean, the kid might commit suicide.
we are NOT specifically talking about the lori drew case. we are talking about a criminal law in louisiana.
read the law . again. it’s right up top of your page.
now, realize that this law is insanely overbroad and essentially criminalizes saying mean stuff to kids. note that saying mean stuff to kids IN PERSON is not illegal. but in louisiana, it is illegal if done via the internet?
why? because legislators kneejerk and tend to write overbroad and unconstitutional legislation whenever some tragedy happens, and ESPECIALLY when it’s a “think of the children ” thang.
people shouldn’t be mean to other people, whether that’s over the internet or in person.
under the law, imo (and in every jurisdiction i’ve worked) , the law generally doesn’t distinguish acts against juveniles vs. adults (assault, etc.) except when it comes to age of consent for statutory rape, obviously. otherwise, an 18 yr old (for example) assaulting an 18 yr old (two adults) is the same as an 18 yr old punching a 17 yr old (a juvenile). certainly, a judge CAN take into account the frailty/physical capacity etc. of a victim. 12 yr olds TEND to be much smaller weaker than 18 yr olds, but it depends on the individual, of course. just like with men and women. i train with one of the strongest women in the country. stronger than (at least) 95% of men out there. but in general, disparity in size, strength etc. can be taken into account by the judge (and jury) .
*********and since you seem to have a difficulty with reading comprehension, i am NOT saying that calling a kid a “poopy-head” is the same as what happened in the lori drew case. i AM saying that this law CRIMINALIZES calling a kid a “poopy-head” (if you have god forbid MALICE) in order to spread a wide enough net to catch the lori drews in a criminal net. ***************
that is bad law, plain and simple. many people are ok with this stuff because they think it’s ok to rely on the noblesse oblige of prosecutors not to prosecute cases under laws like this, except when really bad stuff happens a la lori drew case. never good policy.
i realize based on your posting history, that you may feel ok with nannyish laws, and with giving the power to the state to make such decisions. i don’t, and that comes from somebody who has worked a LOT with suicidal people (fwiw, i went to grad school for counseling psychology), and even unfortunately have had to deal with the tragic aftermath of suicide many times, both teen and adult.
July 11, 2010, 3:51 pmDrFunke says:
I go back and forth.
On one hand, I think that online laws need to be revamped to make sure that people are not allowed to do whatever they want, whenever they want with little punishment.
On the other, these types of online laws are so open to interpretation that it feels like we will go over-board in enforcing this
July 11, 2010, 4:36 pmLaura(southernxyl) says:
So you weren’t talking abut Megan Meier here? My bad.
July 11, 2010, 7:09 pmLaura(southernxyl) says:
BTW, correct me if I’m wrong, but I thought nanny-state laws were more about telling people they can’t eat sugar or fat, or taxing them for using tanning beds b/c they cause cancer, or that they have to wear motorcycle helmets. I didn’t think laws to prevent people from preying on other people were nannyish laws, even when those other people are children.
I can even see laws against payday loan companies being nanny-state laws, since the borrower went into the agreement freely (if naively, and perhaps the loan companies count on this.) But not laws against person X being agressive toward person Y.
July 11, 2010, 7:40 pmKatahdin says:
I think ‘into the agreement freely’ captures the essence here. As tragic as suicides are, ultimately they are something people do to themselves; it is their hand on the trigger/noose/pill bottle. Perhaps their decision is the result of a genetic predisposition to depression, or an unhappy childhood, or mean acquaintances, but whatever the actions of others not present may have contributed to the decision, other people aren’t enough of a proximate cause for criminal liability to attach. The bill collector is not liable for my robbing a bank, no matter how he has hounded me. My boss is not liable for my running a red light and killing a pedestrian, no matter how much he has complained about me being late.
Perhaps the bill collector or my boss will feel remorse, or be shunned – but they shouldn’t be prosecuted.
July 11, 2010, 8:13 pmLaura(southernxyl) says:
Hm.
I’m not sure that a boss wouldn’t have liability if he told an employee to do whatever it took to get to X place by Y time, and the employee did it, and ran over somebody. I’m not saying he should have liability, I’m saying I’m not sure about the law there.
July 11, 2010, 8:30 pmToby says:
To Laura (mostly)
Hard cases make bad law. Even more, they induce idiot legislatures to reate bad law. Lori Drew is a hard case. We shouldn’t generalize.
There is an [extralegal] principal that says render unto Caesar what is Caesar’s and unto God what is God’s. It was introduced as a principle of taxation, but it works just fine as a principle in this case. Being a jerk, of the sort that the mother who attacked Lori Drew was, was an offense against a sense of ultimate justice, but it should not, cannot be an offense against law, because the law that catches it, is broad enough to catch us all.
Shun that nasty who tomermented Lori. Raise civil cases aainst her. Revive the concept of polite society, that rightfully loathes her. But please, do not deform the law around this bizarre case.
July 11, 2010, 8:32 pmLaura(southernxyl) says:
Y’all are totally missing my original point.
Whit said that Lori Drew was not to blame for Megan’s suicide b/c a person who would commit suicide over cyberbullying was clearly unbalanced.
I said that Megan was in fact unbalanced (treated for depression) and that Drew knew this, and that that fact does make her to blame for it.
When somebody is unbalanced, do you (a) leave them the hell alone, or (b) kick them so that they fall, and excuse yourself by saying that they wouldn’t fallen if they’d not been unbalanced?
July 11, 2010, 8:41 pmmanuel perez says:
Reading the comments of the people gives me ideas of how depression could be treated and also that teenagers should not be push to high levels in punishment but to convince them in therapy treatment.
July 11, 2010, 10:30 pmwhit says:
i said she was not CRIMINALLY liable, but should be sued.
it’s that simple.
and passing kneejerk, overbroad, nannyish laws is not the answer hth
July 12, 2010, 2:15 amwhit says:
much more elegantly stated than my post. good one.
July 12, 2010, 2:16 amwhit says:
So you weren’t talking abut Megan Meier here? My bad.
when i said i was talking about the law, which is the vast majority of most of my posts, as well as the subject of the thread, yes… that was what i was talking about. the lori drew incident surely has inspired and will inspire much bad legislation, not to mention the fraudulent prosecution of her (that was thrown out).
the lori drew case was an example of a horrendously callous, even evil person, but not a criminal matter. we shouldn’t try to engineer such a law to catch the future lori drews of the world, if it means writing overbroad, nannyish laws that criminalize calling a juvenile a “poopy head” which is what this LAW does.
July 12, 2010, 2:19 amwhit says:
why should electronically communicating with a minor with “willful intent to coerce, abuse, torment, or intimidate a person under the age of eighteen.”
be illegal when doing it NON-electronically ISN’T?
what is so special about an email (which can be deleted, etc.) that kids need special protection from somebody being mean to them vs. somebody saying it to their face? why does doing it on the internet make it so much worse as to be criminal?
and is a (for example) 17 yr old so fragile that we need a law to protect them from this stuff ON THE INTERNET vs. an 18 yr old.
it’s actually much EASIER to ignore this stuff on the internet. DE-LETE
July 12, 2010, 2:27 amMr. L says:
An oft-forgotten detail is that Drew’s motive was retaliation for Megan supposedly harassing her own daughter by spreading malicious rumors. If only we’d had this sensible law in place back then so the real criminal would have been sent to jail instead of a grave! As an added bonus, when she inevitably kills herself in juvie it’ll be nobody’s fault but her own! Justice!
July 12, 2010, 10:55 amThink Tank West...ideas from the top think tanks in the world,Cato institute,Brookings,Carnegie,Rockefeller,War college,Aspen,Wilson,Claremont,Levy,Milken says:
[...] offenders under the age of seventeen are directed to the juvenile justice system. As Eugene Volokh points out, this law is still pretty bad: Would publishing an online editorial — or a blog post — [...]
July 23, 2010, 12:22 am