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Lori Drew Update:
The St. Louis Post Dispatch has this update on proceedings today in the Lori Drew case.
nyu law libertarian (www):
If the judge rules that lying on Myspace can result in a Federal prosecution, the criminal defense bar will be coming up on a windfall.
10.30.2008 6:32pm
einhverfr (mail) (www):
IANAL, etc....

It seems to me that saying "the world would be better off without you" may be cruel. However, it would seem to my mind that there are profound constitutional questions in this case given the fact that no true threats were made, given the lack of allegations that Megan does not seem to have tried to break off contact, etc.

Terms of service tend to be seen as adherence contracts. Breaking a contract by itself isn't generally a criminal issue. I don't think the unauthorized access charges really should stick.

But what of the cyberbullying charges in this case? I haven't yet found any evidence of true threats against Megan. I haven't seen any evidence that Megan tried to break off contact. Sure, it sucks that Megan killed herself, but do the actions of Lori fall within the protections of the First Amendment? If not, can *any* careless word which results in a suicide rise to the level of criminal charges? Someone gets mad, says something, the other person commits suicide, and now you have manslaughter charges. Is that where we want to go as a society?

I personally think that there has to be a line which is drawn such that the individual who is harassed via a must make an unambiguous effort to avoid such harassment. At that point, forum considerations may allow IMO for further contact to fall outside the first amendment where harassment is concerned. Anywhere short of such a line IMHO would unacceptably limit free speech.

The second issue here is that there might be a different line for civil cases, and indeed many of my objections would be far less in a civil case. After all, we are talking about an adult who plays an extremely cruel joke on a teenager who then kills herself. Given the age difference, the fact that Lori was aware of this and that her intentions appear to have been clear, maybe a civil lawsuit might be acceptable to me.

I guess a lot of this boils down to the idea that our Constitution is generally interpreted to protect a marketplace of ideas. The idea that "the world would be better off without you" seems sufficiently abstract in my mind to be worthy of protection, just as "Kill the niggers.... we intend to do our part" was ruled in Brandenburg v. Ohio (see majority opinion, footnote 1).
10.30.2008 7:03pm
Ken Arromdee:
I personally think that there has to be a line which is drawn such that the individual who is harassed via a must make an unambiguous effort to avoid such harassment.

In this case the victim was being deceived and was unaware that it was harassment, so she had no chance to try to avoid it.
10.30.2008 7:25pm
JollyBlue (mail):
Bullying is an interesting topic, because good bullies torment their victims without ever breaking laws or rules. For example, "failure to invite someone to your birthday party" is hardly a crime, but it can easily be part of a pattern of events that leaves the victim traumatized for life.

Bullied children either learn to sit still and take the abuse, turn violent (Columbine anyone?), or hurt themselves.

I hear the line "The world would be better off without you" as a threat, one that in this case prompted a criminal action. Furthermore, do I understand correctly that this was an ADULT speaking to a child? Telling a child "The world would be better off without you" seems to meet the standard for emotional abuse.


Things a bullied child quickly learns:
-Asking the bully to stop doesn't work; it just becomes another thing to use in the bullying.
-Asking adults (parents, teachers, etc.) to help doesn't work; it suppresses the problem temporarily (like an ice cube on a sunburn) and you are then targeted for retribution.
-Running away doesn't work; usually bullying occurs in an enclosed environment (such as school) where distance or leaving is not an option. In the case of cyberbullying, this is even more pronounced; you can block new email addresses when they are used to torment you, but that doesn't stop a dedicated bully from (as we see here) starting a new account with a different name.

I don't understand the case or the applicable law well enough to comment on the ruling, but dismissing the case just tells bullied children everywhere that appealing to the legal system is just one more thing that won't work.
10.30.2008 7:29pm
einhverfr (mail) (www):
Objections to my position:

From from Ken Arromdee:

In this case the victim was being deceived and was unaware that it was harassment, so she had no chance to try to avoid it.


Sure she did. MySpace I believe has tools for blocking messages from people who send unwanted messages. At any time, she could have done this. There is a difference between the two scenarios below:

1) Your kid invites me (an adult) into your house. I tell your kid his is supremely stupid.....

and

2) After that you or he asks me to leave. I tap on his window and hold up a sign reading "Stupid."

The second one seems to me to be something I would support criminalizing. The second one seems a little hard, even if it is bullying.

JollyBlue wrote:

For example, "failure to invite someone to your birthday party" is hardly a crime, but it can easily be part of a pattern of events that leaves the victim traumatized for life.


Sure. But if it leaves someone traumatized for life, there are bigger issues. Trust me. I was physically bullied as a kid for around seven years.


I hear the line "The world would be better off without you" as a threat, one that in this case prompted a criminal action. Furthermore, do I understand correctly that this was an ADULT speaking to a child? Telling a child "The world would be better off without you" seems to meet the standard for emotional abuse.


Looking back at Virginia v. Black (again, IANAL, and I realize this isn't perfectly comparable, but I think the cases it cites in this regard are), the court discussed threats as being subject to state regulation because of the disruption that fear of unlawful harm done by another can cause. "The world would be better off without you" as a statement of opinion regardless of who says it doesn't seem to create a fear of unlawful harm (such as violence) at the hands of another. Sure, it could be a threat too but then this doesn't seem to be how Megan took it. The key thing is that a threat would be one person threatening to do something illegal to someone else.

Finally I understand that this was an adult talking to a child, but the child didn't know that, so I am not 100% sure there is a sufficient power arrangement here to make that argument compelling to me. Would you support criminal charges if the perpetrator of the harassment was a 17-year-old? What about an 18-year-old "adult" high-school senior?

Kids do cruel things to eachother, but part of learning to grow up is building that thick skin. Read some of the things that Paul Graham has written about the high-school environment. I suspect that, like me, that process has helped him be quite successful.

Furthermore, like Megan Meiers, I was also diagnosed with attention deficit disorder and depression.


I don't understand the case or the applicable law well enough to comment on the ruling, but dismissing the case just tells bullied children everywhere that appealing to the legal system is just one more thing that won't work.


I don't know. I would prefer to see the court offer guidance to bullied kids to let the system work better without the possibility of criminalizing all manner of things which should not be criminalized.

What I would like to see the court do is dismiss on the basis that:

1) violation of the terms of service, with no other trespass involved is not a criminal manner

2) For harassment to be criminal, there must be *some* attempt to end the harassment on the victim's part. If you want to tout appealing to the system, maybe get your parents to hire a lawyer to write a cease and disist letter? But really, just attempting to block the person using normal computer controls on sites like Myspace should be sufficient for this requirement.

Otherwise.... Imagine the following scenario.....

Troubled teen goes and visits her friend. The parent comes home and finds them doing something they should not be doing, whatever that is. Parent, maybe, is going through some other problems and snaps, says "The world would be better off without you." Teen goes home, commits suicide.

Criminal? Under your test it seems to be.

Also, I really hate to blame grieving parents, but one of the problems we have in today's world is coddling children and preventing them from growing strong in the face of resistance. If you are more worried about your kid fitting in than learning to deal with *not* fitting in, you are not preparing the child to succeed well in life, IMNSHO.
10.30.2008 8:01pm
einhverfr (mail) (www):


1) Your kid invites me (an adult) into your house. I tell your kid his is supremely stupid.....

and

2) After that you or he asks me to leave. I tap on his window and hold up a sign reading "Stupid."

The second one seems to me to be something I would support criminalizing. The second first one seems a little hard, even if it is bullying.


(Correction)
10.30.2008 8:02pm
Jess A.:

Bullied children either learn to sit still and take the abuse, turn violent (Columbine anyone?), or hurt themselves.

You can't imagine any other possible response? In fact, most children are bullied at some point, and most learn far more effective coping strategies. Those who reach adulthood before learning that the world just ain't fair probably suffer more in the long run.
10.30.2008 10:15pm
Ken Arromdee:
MySpace I believe has tools for blocking messages

She was pretending to be a teenage boy. The harassment started with the earlier messages where she pretended to be interested in her, as a prelude for pretending to reject her. The girl didn't know she was a fake, so didn't know that the earlier messages were harassing. You can't avoid harassment if its harassing nature is related to it being fake and you don't yet know that it's fake.
10.31.2008 1:08am
einhverfr (mail) (www):

She was pretending to be a teenage boy. The harassment started with the earlier messages where she pretended to be interested in her, as a prelude for pretending to reject her. The girl didn't know she was a fake, so didn't know that the earlier messages were harassing. You can't avoid harassment if its harassing nature is related to it being fake and you don't yet know that it's fake.


Ok, this gets back to two of my points:

1) If this actually was a teenage boy, the result would have been the same, so it is a little unfair to assume a power difference.

2) It appears that it *never* occurred to her that she was being harassed/bullied. Hence I don't think you can simply treat it as such.

Look, as I said, I have less of a problem seeing this taken up in civil court because there clearly seems to have been a somewhat dubious intent, and it caused harm. IMO this is what wrongful death suits are for. But when you criminalize words which directly cause nothing more than what essentially amounts to hurt feelings regardless of the intent (irregardless of indirect consequences), I think you open up a dangerous can of worms.

I guess it comes back to the Brandenburg test: were these words intended and likely to cause imminent lawless action? If you tell most teenagers "the world is better off without you," how likely is it that any specific one will commit suicide (and is suicide lawless action in California)?

I know I am defending someone who did something which is morally indefensible (playing a cruel trick on someone else), and with dubious intent. But I still think that criminalizing what amounts to pure speech (in the absence of the factors I suggested or other equivalent ones) in this matter is a serious mistake, and I seriously hope that the courts recognize this as such.

In the case of "the world is better off without you" what is dangerous is the expression, not the non-expressive (for example, practical) elements. You could say the same thing any other way, without making a direct threat of violence or other lawless action, and it would have largely the same impact. If we draw the line anywhere else, we might as well adopt the hate-speech regulations common in Europe (and which I blame for the Jylands-Posten cartoon controvery)-- certainly publication of the cartoons suggesting that Muhammed was a terrorist could be seen as harrassing every Islamic teenager in this country.... And heaven forbid someone actually put a photograph of a dog on a Muslim student's locker!
10.31.2008 3:52am
Ken Arromdee:
If this actually was a teenage boy, the result would have been the same, so it is a little unfair to assume a power difference.

Power differences don't just mean that the adult has the ability to punish the child. They also mean that the adult is more sophisticated and experienced and knows how to say and do things that manipulate the child.
10.31.2008 11:09am
Sparky:
Can anybody explain why a case apparently involving a bunch of Missourians is being tried in Los Angeles?

Or address the issues of personal jurisdiction, venue, forum non conveniens (does it apply in criminal cases?) and prosecutorial misconduct?
10.31.2008 11:59am
SmokeandAshes (mail):
Sparky - The Federal Charges are partly based on that she violated the terms of agreement with MySpace so the victimized party is MySpace (which is located in LA).
10.31.2008 12:07pm
einhverfr (mail) (www):
So, really, if MySpace is the victim here of a felony, then lying about your identity to access the New York Times web site is also a felony...

How many people here are *not* guilty of criminally trespassing on a server under this definition of the law?
10.31.2008 8:40pm
ForMeItWasEasy:
This is too simple for words. Excluding the abuse of the service itself, which may be illegal, the rest is...... what?

Someone above said the parents can't, won't or are unable to stop this. They aren't? My kid was bullied..... I saw it.... I removed the myspace account. Or should I say, I blocked my kid's access to myspace at my router. I also made it clear that if I saw any indication of an attempt to visit the site, I would restrict ALL outbound access to anything.

Folks, if we don't like what they are seeing, it is easy.... shut the danged thing OFF! Then if those mean kids want to bully, they will have to do it in person and we can then deal with that. This isn't a complex legal issue, it is a PERSONAL responsibility issue. WE are responsible for our kids and what they see, what they do and, to some degree, how they interpret it.

I most certainly AM NOT blaming the parents of this child and I AM saying that those bullies should be punished in some way, like maybe making it illegal for them to utilize the internet for 10 or 20 years...... I know, I know, most of you will think that is overkill and I believe that is part of the problem. But I digress, the parents need to take an active role in this nonsense. They need to monitor what is going on. If they don't know how, they need to become educated enough to do that or REMOVE the danged thing from their home.

The legal system is not the place to take care of this. There are WAY too many ways this can infringe on our rights AND we must remember that a good portion of the internet is NOT under or subject to the US Legal system. If the bullying were coming from China, what would you do then?

Bottom line folks: WE, the parents, need to be proactive. Giving the kids free reign to the internet, unsupervised, is like allowing your kid to drive wherever or whenever they wish without ever asking them where in the heck they are going. They will potentially be exposed to all manner of unbelievably vile garbage on the internet...... Shouldn't we help to ensure that doesn't happen? We cannot expect the "government" to take care of every little detail in our lives, no matter how much we would like to abrogate our parental responsibilities to the government because we are too busy to deal with it. That, my friends, is BULL! THAT is the REAL problem here.
11.11.2008 1:12pm