PrintMay 24, 2009
Cyberbullying Laws and the Moral Code
"Hard Cases, it is said, make bad law"
-John Campbell Argyll
When a jury convicted 49 year old Lori Drew of O`Fallon Missouri (an ex-urb of St. Louis) in the now-infamous cyber-bullying case in which Drew posed as a teenage boy on Myspace to woo-then harass-13 year old Megan Meier, many were pleased that justice was done. But that pleasure quickly turned to disgust when it was learned that the jury`s verdict came with a standardized recommendation of probation and a large fine rather than jail time. The presiding judge in the case can still impose jail time at the sentencing hearing on May 18, and he is under considerable pressure to do so; the troubled young girl hanged herself as a result of Mrs. Drew`s harassment.
But Lori Drew was convicted by a jury in Los Angeles, not in Missouri, because there were no laws in the Show-Me State against what she did. Much like Al Capone, who was not convicted of racketeering or other criminal charges but of tax evasion, Drew could not be accused of any real crime, so Federal prosecutors charged her with fraud for creating a false profile on Myspace. Myspace is based in Beverly Hills.
And Mrs. Drew was acquitted of 3 felony counts because it could not be shown that she operated solely with malicious intent. She was convicted of 3 misdemeanor charges of unauthorized access to the networking site.
In short, there is no crime in cyberbullying.
But people want Megan`s death avenged, and interviews after the announcement of the verdict were nearly universal; toss Drew in the dungeon and throw away the key!
The judge in this case will have to be brave to follow the recommended sentencing guidelines.
But the question remains; should a reprehensible but legal act be punished with the force of law simply because we judge it to be a reprehensible act? I would argue that the Law is not God, and that sometimes justice should not be meted out by our guardians in government.
First, let me state unequivocally that a grown adult who would harass a 13 year old girl is the worst sort of scum, deserving of near total ostracism by the community. She should also be subject to civil penalties should Megan`s parents decide to sue. That said, I`m not at all sure it is a good idea to place the force of Law into this situation.
That the child in this instance died is not really pertinent to the discussion, insofar as it cannot be established that Drew intended to drive Megan Meier to commit suicide. Were Lori Drew`s intentions malicious? Yes, of course, but malice alone isn`t grounds for charging someone with a felony. There is no right in the Constitution to be free of verbal mistreatment from another citizen. There have been many, many instances throughout history of individuals harassing other individuals, and it has traditionally been understood that such treatment may be immoral but does not fall within the purview of the legal code.
It should also be pointed out that a computer can be turned off, or the victim of cyberbullying can take actions to block or otherwise avoid dealing with such a situation. Steps can be taken (like restraining orders) to kick the bully off the network or whatnot. It is far easier to avoid cyberbullying than it is to avoid playground bullies; the playground bully is physically present, and can confront the victim directly.
I am not trying to be hard-hearted here; I detest bullying in all forms. The problem is, authorities can never stop bullying in the long run; it is up to the victim herself to do that. Bullying is one of those unfortunate things that simply cannot be dealt with by others.
Which brings us to the purpose of this essay; contemporary America has an almost spiritual faith in the powers of government to redress all wrongs, and hard cases make bad law.
Which is why what Democrat Linda Shanchez is doing is so disturbing; the California Democrat has proposed a bill to make electronic harassment into a Federal felony, ostensibly to make cases like Megan Meier`s fall within the authority of Federal prosecutors.
According to H.R. 1966:
"Whoever transmits in interstate or foreign commerce any communication, with the intent to coerce, intimidate, harass, or cause substantial emotional distress to a person, using electronic means to support severe, repeated, and hostile behavior, shall be fined under this title or imprisoned not more than two years, or both....
["Communication"] means the electronic transmission, between or among points specified by the user, of information of the user's choosing, without change in the form or content of the information as sent and received; ...
["Electronic means"] means any equipment dependent on electrical power to access an information service, including email, instant messaging, blogs, websites, telephones, and text messages"
What does it mean to coerce, intimidate, harass, or cause substantial emotional distress? Such wording opens a Pandora`s box, because any sharp trial lawyer could claim that anything conveyed through electronic media is somehow intimidating, harassing, coercive, or distressing.
Would pro-life organizations be guilty of violating this law for claiming abortion is murder? Would a Baptist church group be guilty if they say homosexuality is against God`s law? For that matter, this very essay could be misconstrued as advocating bullying and thus be distressing.
This is another example of "never letting a crisis go to waste"; a very bad situation could be turned into a very useful tool for the Left! The hard case that resulted in the suicide of a young girl can be manipulated to, say, shut the mouths of those who are opposed to his High Holiness Barack Hussein Obama and Congregation.
The Constitution protects the freedom of individuals to speak as they see fit -- including speech that is offensive. Often the "offensive" speech becomes the norm in future years. Consider the abolitionists; this law could well have been used in antebellum times (had they had computers and cell phones back then) to shut the abolitionists mouths. Many considered them kooks and firebrands, and slavery could well have never ended because government silenced their speech.
Yes, freedom of speech has certain limitations -- such as a prohibition against causing panic or actually threatening someone -- but the Framers of the Constitution wanted the role of government very circumscribed when dealing with what people say, and this law may have been intended for a noble purpose, but noble purposes have been corrupted many times in the past.
What this situation illustrates is the failure of our common culture to teach moral absolutes. It used to be believed that concepts of civility, of reasonable behavior, of religious and social norms were the vanguard of a peaceful social order. Law largely acted as the final barrier, the encapsulating structure that held the truly criminal and antisocial in check. Social order came from the customs and traditions that were agreed upon by society at large, and those mores and customs were far stronger at holding evil impulses in check than the force of law, which is, after all, ultimately the exercise of physical power.
But Liberalism has labored for many years to dismantle that network of customs, mores, and traditions in the belief that freedom requires absolute moral autonomy, and American society has witnessed a horrific slow barbarization as a result. Where once what Drew did was absolutely unthinkable because of cultural restraints, now our modern "liberated" individual doesn`t think twice. Remember-"if it feels good, do it"? It feels good to torment someone who angers you. Revenge plays to our most primal of desires. Without the influence of civilization, without customs, mores, and traditions we will find those primal desires become our primary motivations.
So, what is the answer? I ask this humble question; why don`t we see more racial epithets on the internet? Is it because of hate crimes legislation, or is something more fundamental at work?
America has made the N-word (note I do not even use it here) into a taboo, something that cannot be said in polite company. How did this happen? People used to use it with regularity up until the 1970`s, and many black people still use it among themselves. What happened is that a majority of people decided it was a hateful, hurtful expression and so people themselves changed the public norm and made the word anathema. Anyone who uses that word suffers social scorn and ostracism, and so few continue to use it. Society, not law, made that word unacceptable.
And that is what must be done about cyberbullying. The new technology, the internet, text messaging, all of these things offer a degree of anonymity that give courage to those who would never have the nerve to say such things openly. The mouse becomes a lion when he can hide amid the millions of gigabytes coursing through the electronic nervous system. Couple this sense of anonymity with a culture that has coarsened, a culture where one is liberated from decent behavior, and you have a recipe for this very thing. It must become a matter of unacceptable ill-manners on the part of the average computer user-be they adult, teen, or tween. The law is simply inadequate for dealing with this sort in any but the most hamhanded-and ultimately restrictive-fashion. What happened to the N-word in polite society has to be applied to all forms of nasty commentary by computer users.
But it requires much more; what is needed is nothing short of a return to civility, based on a code of conduct that abhors the barbarism wrought in the name of "freedom". This will not be easy; the internet has fostered a generation of rough young beasts, people such as the Netroots or Democratic Underground who take joy in the libertine expressions of their passions. These passions, given free reign as a matter of "liberty", have become the standard of behavior rather than the exception, and it will be difficult to reinstitute codes of civility to those holding such a barbarous worldview. But attempting to restrict such things through force alone is destined not just for failure but for an increase in such, because the standard then becomes the exercise of power over others rather than the exercise of restraint of one`s own. To use the modern moral relativistic rejoinder "what right have you to judge me!" That right, that employment of the power of the State, becomes purely arbitrary. Instead of calling behavior like Lori Drew`s immoral it becomes simply illegal-something far weaker. People chafe under a code of behavior imposed from without, and the moral imperatives will become that much more despised.
There used to be a concept known as honor, which was something that held human passion in check; the community imposed heavy social sanctions on those who violated the code of honor, and many would rather have died than face such disgrace. Liberals tried to expunge this concept, and the rise of the cities-and the anonymity they gave to the new urban dwellers-made the concept of honor increasingly irrelevant. Thus Law and the concept of guilt-something the liberals load heaping helpings of on the American plate-became the primary methods for social control. We see how the Left uses guilt to manipulate the populace; you're a bad person if you don`t recycle, or if you think gay marriage is wrong (just ask Miss California about that) or to get America to vote for an African-American candidate for President. White guilt has been addressed by many brilliant intellects, and is not the primary focus here, but suffice it to say that this is one of the replacements for the dead concept of honor.
But guilt only works on those who are willing to carry such burdens, and the Left has sought to use it as a tool to manipulate popular attitudes toward political goals or for social change rather than to actually stop bad behavior. One of their goals has been to remove any sense of guilt where it acts to constrain the individual`s personal sense of self. This is where conservatives and liberals part company on the meaning of words like freedom and liberty; the Left believes in eliminating these types of personal restraints. Essentially, every man is a sort of god unto himself, deciding what constitutes reality and who and what they should be and do. This is the core of moral relativism, the notion that we have no right to judge others because they are completely liberated moral agents. To the Left, Liberty is pure license.
But now those chickens have come home to roost, and Lori Drew is the embodiment of the New Woman. Without internal moral restraints (perhaps without even a moral compass, since America has chosen not to believe in objective right and wrong) she acts according to her passions, destroying a teenage girl because it suits her. Guilt will not restrict her because she has been told not to feel guilty about such things. (One wonders how she would feel about someone tossing aluminum cans into the general trash bin.) So it becomes a matter for the Law, which ultimately requires the use of force.
And by empowering the Law to deal with Lori Drew, we are removing the shackles placed on Law by our Forefathers, who understood the great dangers of the exercise of civil power. Giving Judges and Prosecutors the power to stop another Megan Meier case is giving them the power to destroy us. We should not be surprised when such laws take us where we do not want to go; after all, what is the paving of the Road to Hell?
It was a hard case. It will make bad law.
