Friday, July 18, 2008

The Jagged Edge - Part 3

The first question that comes to mind when reviewing the Megan Meier tragedy is whether Lori Drew could be held liable for Megan’s suicide should it be reasonably determined that her conduct contributed to it. Susan Brenner explains why those responsible for the Josh hoax cannot be held accountable for Megan's suicide at CYB3RCRIM3 .

Quote – “One factor is that they clearly never intended for that to happen. I can’t begin to figure out what these adults thought they were doing (never mind the children involved), but whatever it was, they didn’t set out to kill Megan. They were, at most, reckless or negligent in embarking on a course of conduct that resulted in tragedy.

Every state makes it a crime to cause another person’s death recklessly or negligently. The difference between the two types of homicide goes to the foreseeability of the result.

I sympathize with Megan’s parents and I cannot comprehend why adults had nothing better to do than to play such a cruel trick on a child, but however stupid and cruel their conduct was, those responsible for the Josh hoax cannot be held liable under either standard [recklessly or negligently]. To explain why, I’m going to use a very recent Minnesota case: Jasperson v. Anoka-Hennepin Independent School District (Minnesota Court of Appeals, Case # A06-1904, decided October 30, 2007).”

Professor Brenner’s analysis was published before the St. Charles County prosecutor announced his decision and is a superb example of why criminal charges were not filed in Missouri.

Quote – “On December 3rd, after his review of the case, Jack Banas announced that no charges would be brought. In Banas’s reckoning, the Drews are conclusively guilty of little except egregious judgment that set off a chain of horrible events, and deep insensitivity in their aftermath.”

Quote – "The actions of the Drews and Grills are not criminal under existing state law," Banas said, "because their intent was never to harm, stalk, endanger or harass."

Anthony Sebok explored the question of whether Megan Meier’s suicide formed the basis for a successful tort lawsuit at FindLaw.

Professor Sebok explains that lying to hurt someone’s feelings is not a crime. Discounting a negligence suit based upon the lies told he illustrates two factors:

1. “One would have to prove Lori Drew should have foreseen that her comments would lead not just to emotional hurt, but also to a personal injury, such as suicide.

2. “While it might be easy to show that the nasty message Drew put in "Josh's" mouth caused Megan emotional distress, it is much harder to show that it was the legal cause of her death.

A more practical option, according to Sebok, would have been a “suit alleging an intentional tort,” specifically the tort of intentional infliction of emotional distress. “IIED holds an actor liable if, by extreme and outrageous conduct, he intentionally or recklessly causes severe emotional distress to another.”

There have been conflicting reports regarding the Meier's intentions to file a civil lawsuit. Some articles claim the parent’s were seeking civil action while others contend the Meier's rejected that legal avenue. No explanation is offered for the discrepancy as far as I can tell.

The subsequent federal indictment against Lori Drew generated controversy in cyberspace.

Jacob Sullern of Reason Magazine poses the question, Is Being Mean Online a Federal Crime?

Quote –
“Since individual reactions to insults are unpredictable and highly variable, a rule that criminalized speech when it leads to suicide or other forms of self-harm would chill any expression more negative than "Nice day, isn't it?" Because there is no such rule, O'Brien has twisted a law aimed at fraud, spying, vandalism, and child pornography into an excuse to punish a woman everyone hates.”

Jonathan Turley, a nationally recognized legal scholar, has doubts the charges will stick. Turley claims, “The indictment pushes the law to the very breaking point and possibly beyond” Furthermore, he alleges, “The most credible element to the criminal theory is the use of the site to obtain information from Megan. However, on various levels, this is the motivation of many users. Again, the question is whether this is properly a crime as opposed to a tort.”

He sums it up perfectly with, “Obviously, few people are sympathetic with Drew, but the question is whether a bad case is going to make for bad law.”

Barb Shelly, a columnist for, opined:

Quote –
“I'm not inclined to expend much sympathy on Lori Drew, but she's clearly being indicted because of the unintended consequences of her actions. There aren't enough lawyers in the world to prosecute everybody who embarrasses and bothers people in Cyberspace.”

The Los Angeles Times published a sensible opinion.

Quote -
“State laws against cyber-bullying and other forms of harassment are designed to draw the line that separates death threats, stalking and other injurious behavior from deceptive but legal speech. It's an important distinction that the federal statute ignores, and it shouldn't be lost in the outrage over Megan's death.”

Dan Gillmor, who is involved in citizen-media efforts, had this to say:

Quote -
“But if this is a crime, then America is a land of criminals — because this is a practice that anyone with common sense engages in from time to time. Yes, some do it for mischief. But pseudonyms are also about sometimes justified self-protection.”

TChris, of TalkLeft, calls the indictment “dubious”.

Quote -
“This prosecution is an abusive and dangerous misapplication of the law. The indictment should be dismissed and the U.S. Attorney's Office should be given a good scolding.”

Jennifer Granick, civil liberties director at the Electronic Frontier Foundation, opined at Wired.

Quote -
"To say that you're violating a criminal law by registering to speak under a false name is highly problematic. It's probably an unconstitutional reading of the statute."

“When asked if this is the kind of case Granick would want to litigate, she said, "If [Drew] calls me I'd be very interested in talking with her about this case. I think there is such an extreme reading here, and I do think it's dangerously flawed for other cases. I think it's scary and it's wrong and something should be done about it."

Dave Wieneke, an online strategist, appropriately cut to the chase at UsefulArts.

Quote -
“But is MySpace a victim of fraud?
Or are they responsible for the systems that allowed both parties in this story to create misrepresentations? Is the company a victim or a responsible party? The company is wisely keeping a low profile, so as not to become the story.

The problem here may be that bad parenting can have tragic results, but for the most part it can’t be criminalized. The acts ascribed Lori Drew suggests she’s either the world’s most overinvolved parent, or she’s covering for her teenage daughter. Meanwhile, Megan Meier’s parents knew their daughter, who was reportedly being treated for depression, was flirting online with a boy three years her senior.”

Susan Brenner explains, with remarkable precision, why she disagrees with the federal charges at CYB3RCRIM3 .

Quote -
“The people who created the Constitution and our federal system intended that criminal law be enforced firstly and foremost at the state and local level. They intended that because crime and the imposition of criminal liability are matters that resonate with local concerns, local mores, local attitudes. They also didn’t want too much power centralized in the federal government.”

Noting that Lori Drew faces up to twenty years in prison, Ms. Brenner outlines the goals of sentencing:

"Incapacitation, Deterrence, Rehabilitation, and Retribution."

Quote - “Does it make sense to lock Lori Drew up for 20 years? Would doing that achieve any or all of these goals?

This goes to an issue I often raise with my students: overcharging. If Missouri had a harassment statute that would have encompassed what Ms. Drew allegedly did, then it seems to me it would be perfectly appropriate to charge her with that crime, convict her if the evidence established that she committed it and then punish her "enough" to achieve whichever of the above goals were driving the prosecution. So, in our hypothetical, she's convicted of harassment under state law and, what?, maybe fined, maybe given 30 days in jail, put on probation for a few years, required to work at suicide prevention center or some other appropriate place. That would make sense to me.

I just don't see the sense in, as the saying goes, "making a federal case out of it", especially not when it could mean 20 years in jail.”

According to ABC News, Tina Meier has a different outlook.

Quote -
"She deserves the life sentence that our family has been given," Tina Meier said today on "Good Morning America. I am hopeful she will face the maxiumum 20 years in prison," Tina Meier said. "Twenty years is unfortunately not enough for her," Meier added. "She played a ridiculous game with my daughter's life."

In November of 2007, Tina Meier told a local newspaper that she didn't think anyone involved in the hoax intended for her daughter to commit suicide, but that she thought it was "vile" that an adult would be involved in such behavior.

Next: A pound of flesh

Labels: , , ,