I wrote extensively in Chapter 8 of The Laws of Disruption about the madness of prosecuting Lori Drew, a Missouri woman, for her participation in a cruel MySpace hoax that contributed to the suicide of a 13 year-old girl named Megan Meier. Drew’s behavior aside, the decision by federal prosecutors to charge her under the Computer Fraud and Abuse Act was a cynical effort to appease an angry mob of bloggers and news media who wanted to see blood spilled. The judge, who for dubious reasons of his own allowed the case to go to the jury, signalled a few months ago that he was going to grant a defense motion to overturn the verdict, which he has has now done.
As the old legal adage goes, hard cases make bad law. Had the jury’s verdict stood, federal prosecutors would have found themselves with the awesome power to treat any violation of the Terms of Service of any private website as a federal crime, limited only by the wise application of prosecutorial discretion, which the Drew case itself amply demonstrated to be a virtue best honored in the breach.
(Not to get into the details of messy facts, but most of the nasty behavior was perpetrated not by Drew but by an 18 year-old part-time employee of her home-based business, who received immunity for cooperating with the prosecution. Drew hadn’t even been the one who clicked on the “I Agree” for the MySpace Terms of Service, as if anyone believes that doing so signals understanding let alone ability to comply. The jury foreperson, after the case, made clear that their chief objection to Drew was her failure to adequately parent her own 13 year-old daughter, the other mastermind behind the hoax. If only that were a crime…)
Drew’s ultimate acquittal was never in serious doubt. But in the meantime, recognizing the lack of any real law she or her teenage co-conspirators had broken, the Missouri legislature weighed in with an idiotic anti-“cyberbulling” statute known of course as “Megan’s Law,” which is now being tested, as reported last week by CNET’s Lance Whitney. The law criminalizes the use of the phone or Internet by someone 21 years old or over to cause emotional distress to someone 17 or under. Garden-variety bullying by one’s peers and, one presumes, emotional distress inflicted by parents are still perfectly legal. In the test case, a 40 year-old woman is being charged for posting a fake personal ad on behalf of a teenage girl. The defendant faces up to four years in prison.
It doesn’t take a genius or a crystal ball to see that Megan’s Law will soon be declared unconstitutional on First Amendment grounds. Which the Missouri legislature undoubtedly knew. But passing stupid laws that appease angry mobs is easy, especially when hypocritical legislators can all rely on “activist” judges to overturn them.