Friday, May 16, 2008

A World Unto Itself

May 16, 2008, 8:15 a.m.

My Space, but Her Death

Many of the blog entries here involve some use of the tools of legal analysis, issues, and public policy. But it's not a "law professor blog," limited to the subject matter of the courses I teach exploring mass media and Internet law. Moreover, the blog carries a notice that none of the entries constitute "legal advice" or a "legal opinion."

But a story in this morning's Los Angeles Times requires some comment. Scott Glover and P.J. Huffstutter, "L.A. files 'cyber bully' charges against Missouri mother in connection with girl's suicide; Lori Drew is accused of creating a fraudulent MySpace persona whose comments may be linked to the teen's death," Los Angeles Times, May 16, 2008.

The story is the latest development in tragic events you may well recall from prior news coverage.

The pre-teen and teenage years can involve some real emotional roller coaster rides in personal relationships, as any parent of teens probably knows. Two teenagers can go from bff ("best friends forever") to bitter enemies in short order. And so, apparently, it was with Megan Meier and a girl friend who was the daughter of Lori Drew.

Drew (the mother), for reasons unknown, created an account under a false name ("Josh") with MySpace (an "online community" favored by young teens), and began communicating with young Meier. Drew's fictitious Josh established an online relationship with Meier, apparently flirting and ultimately moving on to sexual overtones. Once established, Drew's character then unceremoniously dropped Meier cold, following which she committed suicide.

Drew is now being prosecuted by the U.S. Attorney in Los Angeles. He, "U.S. Atty. Thomas P. O'Brien said he believed it was the first case of its kind in the nation [and that] Josh told the girl 'the world would be a better place without her'" -- believed to be the final factor in her suicide.

At the outset, let us concede that Drew's (the mother's) actions (via her "Josh") were despicable. I cannot imagine any explanation that would cause one to come to a contrary conclusion.

But the legal questions involve which categories of either civil or criminal law into which this "first case of its kind in the nation" neatly fits.

Given that the people involved (Drew and Meier) were in the St. Louis metropolitan area there is a threshold question as to why a U.S. Attorney and courts in Los Angeles are involved in this matter at all.

But the Internet, or "cyberspace" as we call it, has required a rewriting of the entire law school curriculum -- not the least of which is the matter of a court's "jurisdiction."

Cyberspace is both nowhere and everywhere at once. As the AP reports, "Salvador Hernandez, assistant agent in charge of the Los Angeles FBI office, [said], 'The Internet is a world unto itself.'" AP, "Woman Indicted in MySpace Suicide Case," The Gazette, May 16, 2008, p. A3.

You see, "Josh" lived inside a virtual world called MySpace that hundreds of millions of individuals around the world with Internet access could share with him. (Two years ago MySpace alone had over 100 million accounts.) Josh was in Singapore as much as he was in St. Louis, in London as much as Los Angeles, in Iowa City as much as Istanbul.

From this perspective Drew could be sued anywhere. But as it happens MySpace is a business with a corporate headquarters, and what we call a "brick-and-mortar" (as distinguished from an online or virtual) office building -- located in Los Angeles.

Putting that aside, let's also put aside the matter of civil liability -- which does not seem to be in question here (though it might be later). There is something called "intentional infliction of emotional distress" that could be explored; which would require addressing whether that cause of action continues beyond Meier's death, enabling the parents to bring such an action on her behalf, or that of her estate -- or themselves (separate and apart from the emotional distress suffered by their daughter -- although their emotional distress comes, not from the messages themselves but from her death, thereby raising other issues).

There is the question of "cause." Presumably, in order for Meier's parents to win a "wrongful death" action, for example, as in the O.J. Simpson case, they would need to prove that Drew's actions were sufficient to have caused her death. Since Drew's only actions involved words (rather than a physical assault) and the death was self-inflicted, it's not clear that they could bear that burden of proof. Normally the media are not responsible for the reasonably predictable "copy-cat" results of their content. (Examples: a boy who hung himself after watching a stunt man on the Johnny Carson show explain how they staged hangings; a woman who was sexually assaulted following the depiction of a similar assault in an NBC drama -- by attackers who had seen the show; a Florida man attempting to defend himself from murder charges by asserting that, in effect, "the TV made me do it.")

Incitement is a different matter. To stand on the courthouse steps addressing a mob, and say, "Let's all go home right now, get our guns and some explosives, and go kill that [expletive deleted] abortion doctor" is one thing. But what if, with no threats or actual violence, an abortion doctor -- pummeled with anti-abortion commentary by folks in the local community and local press -- commits suicide. Does it follow that those who were critical of him are responsible for his -- self-imposed -- death?

But U.S. attorneys deal in criminal law, and that's what's involved here. So what's the crime, and is Meier's death relevant to that crime?

The L.A. Times' headline reads, "L.A. files 'cyber bully' charges against Missouri mother in connection with girl's suicide." The sub-head is, "Lori Drew is accused of creating a fraudulent MySpace persona whose comments may be linked to the teen's death." And the lead begins the story, "Invoking a criminal statute more commonly used to go after computer hackers or crooked government employees, federal prosecutors in Los Angeles on Thursday charged a Missouri mother with fraudulently creating a MySpace account and using it to 'cyber-bully' a 13-year-old girl who later committed suicide."

Note that, although there is repeated reference to the suicide none of these possible theories and statutes involves a charge of "murder."

As a fellow law professor is quoted by the L.A. Times:

Rebecca Lonergan, a law professor at USC and former federal prosecutor in Los Angeles, said applying the statute in this case is a stretch.

After reading the indictment, she said there was some ambiguity as to whether MySpace or Megan was the victim. The case hinges, she said, on getting the circumstances surrounding Megan's tragic death before a jury if the prosecution "has any hope of winning."

"This is an extremely aggressive prosecution," she said. "L.A. is doing a laudable thing in trying to find a charge. But I'm not sure the courts are going to let this stand."
I agree.

It may be that what we're dealing with here is similar to prosecuting a serial-killer-member of organized crime for income tax filing offenses -- because you want to prosecute him for something and that's the only offense you can prove.

An indictment is never the end of any prosecution, and especially is that so in this case. There will be much more to come, for certain -- for the providers of online services like MySpace, those who use those services in a mean-spirited and dangerous way, state and federal prosecutors, Congress and state legislatures -- and, oh yes, cyberspace law professors and their students, as well as this blog.

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Anonymous said...

Professor Johnson,

I have a similar (sort of) situation I'd like your opinion on. As you may know, Powerline is a nationally known blog - and recently, one of its authors, who happens to practice patent and intellectual property law in Minnesota, helped to instigate a state investigation of a Muslim charter school here in Minnesota. That investigation concluded that the charter school stepped over the line with a Friday afternoon meeting in which Muslim philosophy was discussed, and which wasn't really voluntary - and by a minor infraction regarding extension of the school day for voluntary prayer.

The author of the Powerline article - Scott Johnson, is as I said, a reputable attorney - and was somewhat repudiated by this investigation because no agregeous violations, which he asserted existed, were found. Johnson's response was that "the state's interpretation of the (MN) Constitution is in error."

My question for you - given that Johnson almost certainly could understand that the policy for the investigation and its findings were either set by an attorney beforehand, or the results reviewed by a state attorney afterward - how would you charactarize his comments?

My position is that he openly asserted error on the part of an attorney in an area of law in which Johnson isn't an expert. While not 'malpractice' per se', especially since he isn't actively representing anyone - but he didn't make a general statement about the Constitution, but rather asserted error on the part of the state - and not just asserted, but made a statement of fact that the state IS wrong, not just perhaps wrong. I found his comments, like many neo-cons, to be the height of hubris, and in my view professionally impolite certainly, and probably professionally irresponsible since his blog is in fact both highly visible and as well in the public space. His actions may NOT incite action by the state, but they have in the past. While certainly not criminal, it is somewhat abusive and preferential.

Please let me know what you think - regards - Leftout

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