Bored lawyers: Q on cyberbullying case

[gsabc]

The defendant was found guilty of some minor charges, not guilty of others, with a mistrial on the major issue of conspiracy. My question, though, comes from this section in the article:
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Drew's lawyer, Dean Steward, contended his client had little to do with the content of the messages and was not at home when the final one was sent. Steward also argued that nobody reads the fine print on service agreements.

"How can you violate something when you haven't even read it?" Steward asked. "End of case."
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I don't understand that argument. Is "Ignorance of the law is no excuse" just an adage with no real basis in reality? I would contend that it would be incredibly easy to violate a service agreement you haven't read, since you obviously have no idea what it says and what actions it may prohibit. I would also contend that there are numerous accounts of people being held to contracts they didn't really read, the most obvious current example being the home buyers who were duped into unaffordable mortgages by unscrupulous agents seeking a fat commission.

Am I incorrect? I'm truly curious about the realities of the law here and the validity of the lawyer's statement.

[themanintheseersuckersuit]

I suspect that he was arguing that his client had no intent to commit a crime. If intent was a element of this crime (as it usually is) actual knowledge that she was violating the user agreement would be important.

[Bob78164]

The defendant was found guilty of some minor charges, not guilty of others, with a mistrial on the major issue of conspiracy. My question, though, comes from this section in the article:
----------------------------------
Drew's lawyer, Dean Steward, contended his client had little to do with the content of the messages and was not at home when the final one was sent. Steward also argued that nobody reads the fine print on service agreements.

"How can you violate something when you haven't even read it?" Steward asked. "End of case."
---------------------------------
I don't understand that argument. Is "Ignorance of the law is no excuse" just an adage with no real basis in reality? I would contend that it would be incredibly easy to violate a service agreement you haven't read, since you obviously have no idea what it says and what actions it may prohibit. I would also contend that there are numerous accounts of people being held to contracts they didn't really read, the most obvious current example being the home buyers who were duped into unaffordable mortgages by unscrupulous agents seeking a fat commission.

Am I incorrect? I'm truly curious about the realities of the law here and the validity of the lawyer's statement.

There's a difference between civil liability and criminal liability. Civil contracts are often enforced against people who have not read them, though even then, in the context of form contracts, courts will be hesitant to enforce terms that would have come as a surprise to the consumer.

In the criminal arena, it's generally true that ignorance of the law is not an excuse. However, if the nature of the conduct doesn't give you any notice that it's likely to be unlawful, there may be an exception to this rule, particularly if the penalties are serious (misdemeanors count as serious in this context). --Bob

[Bob Juch]

The whole trial shouldn't have happened in the first place.

California claimed jurisdiction over something that happened in Missouri because MySpace has a Beverly Hills HQ address.

A civil suit should happen, however.

[Bob78164]

The whole trial shouldn't have happened in the first place.

California claimed jurisdiction over something that happened in Missouri because MySpace has a Beverly Hills HQ address.

A civil suit should happen, however.

You're mistaken. The federal government claimed jurisdiction. It sited venue in California based on the MySpace Beverly Hills address. The State of California had no involvement in the case.

As for a civil suit -- on what basis? The First Amendment is a very high barrier to civil liability based on the content of speech that is not factually false and defamatory. --Bob

[Bob Juch]

The whole trial shouldn't have happened in the first place.

California claimed jurisdiction over something that happened in Missouri because MySpace has a Beverly Hills HQ address.

A civil suit should happen, however.

You're mistaken. The federal government claimed jurisdiction. It sited venue in California based on the MySpace Beverly Hills address. The State of California had no involvement in the case.

As for a civil suit -- on what basis? The First Amendment is a very high barrier to civil liability based on the content of speech that is not factually false and defamatory. --Bob

OK, someone got that wrong then.

The speech certainly was false! What else would you call making up a character with the intent to damage a person?

[Bob78164]

The whole trial shouldn't have happened in the first place.

California claimed jurisdiction over something that happened in Missouri because MySpace has a Beverly Hills HQ address.

A civil suit should happen, however.

You're mistaken. The federal government claimed jurisdiction. It sited venue in California based on the MySpace Beverly Hills address. The State of California had no involvement in the case.

As for a civil suit -- on what basis? The First Amendment is a very high barrier to civil liability based on the content of speech that is not factually false and defamatory. --Bob

OK, someone got that wrong then.

The speech certainly was false! What else would you call making up a character with the intent to damage a person?

A hoax (and a particularly cruel and tragic one), but not defamatory. The content of the speech boiled down to, "You're a bad person and no one likes you." That's pure opinion, and therefore by definition can't be defamatory. --Bob

[littlebeast13]

I just wonder if this whole trial would've happened in the first place had one of our local stations not made it their personal crusade to see this woman crucified from the very beginning....

It's too bad they're the only real newscast on before I go to work every night....

lb13

[TheCalvinator24]

You're mistaken. The federal government claimed jurisdiction. It sited venue in California based on the MySpace Beverly Hills address. The State of California had no involvement in the case.

As for a civil suit -- on what basis? The First Amendment is a very high barrier to civil liability based on the content of speech that is not factually false and defamatory. --Bob

OK, someone got that wrong then.

The speech certainly was false! What else would you call making up a character with the intent to damage a person?

A hoax (and a particularly cruel and tragic one), but not defamatory. The content of the speech boiled down to, "You're a bad person and no one likes you." That's pure opinion, and therefore by definition can't be defamatory. --Bob

My first Trial was defending a woman on a Defamation case. We won.

[Bob Juch]

You're mistaken. The federal government claimed jurisdiction. It sited venue in California based on the MySpace Beverly Hills address. The State of California had no involvement in the case.

As for a civil suit -- on what basis? The First Amendment is a very high barrier to civil liability based on the content of speech that is not factually false and defamatory. --Bob

OK, someone got that wrong then.

The speech certainly was false! What else would you call making up a character with the intent to damage a person?

A hoax (and a particularly cruel and tragic one), but not defamatory. The content of the speech boiled down to, "You're a bad person and no one likes you." That's pure opinion, and therefore by definition can't be defamatory. --Bob

I didn't claim it was defamatory. It was intended to hurt the girl. That's a tort.

[Bob78164]

OK, someone got that wrong then.

The speech certainly was false! What else would you call making up a character with the intent to damage a person?

A hoax (and a particularly cruel and tragic one), but not defamatory. The content of the speech boiled down to, "You're a bad person and no one likes you." That's pure opinion, and therefore by definition can't be defamatory. --Bob

I didn't claim it was defamatory. It was intended to hurt the girl. That's a tort.

No, it's not. Jerry Falwell lost a Supreme Court case to Hustler Magazine (unanimously, in a decision written by Chief Justice Rehnquist) on precisely that issue. --Bob

[themanintheseersuckersuit]

They would possibly have a civil case for intentional infliction of emotional distress.

[wintergreen48]

A hoax (and a particularly cruel and tragic one), but not defamatory. The content of the speech boiled down to, "You're a bad person and no one likes you." That's pure opinion, and therefore by definition can't be defamatory. --Bob

I didn't claim it was defamatory. It was intended to hurt the girl. That's a tort.

No, it's not. Jerry Falwell lost a Supreme Court case to Hustler Magazine (unanimously, in a decision written by Chief Justice Rehnquist) on precisely that issue. --Bob

Not true: the decision was not quite unanimous (one Justice did not participate, another concurred in the result but not in the reasoning), but more importantly, Falwell lost because he was a 'public figure,' and the Court essentially just upheld the traditional (since 1964, anyway) rule that you can say pretty much anything you want about a 'public figure' and not be taken to task for it. Falwell claimed that there was 'actual malice' in the case (the one exception to the 'public figure' rule), but the nature of the underlying action (an obvious parody) pretty much wiped that argument out, at least, in the eyes of the Supreme Court (both the trial court and the Court of Appeals had ruled AGAINST Flynt in that case, so it was not actually so cut and dried). In the cyberbullying case, you are not talking about a 'public figure' who is the victim of a tort, you are talking about a child who was otherwise unknown until she was victimized by a deliberate attempt to cause her harm.

Boy Scouts of America revised the requirements for the third real rank, First Class Scout, effective this year, to include a 'cyberbullying' training module-- Scouts are of course not supposed to engage in cyberbullying (violation of the 'Friendly' and 'Courteous' and 'Kind' portions of the Scout oath), but also, they are supposed to learn how to deal with cyberbulling when they are themselves the victims.

[peacock2121]

The whole trial shouldn't have happened in the first place.

California claimed jurisdiction over something that happened in Missouri because MySpace has a Beverly Hills HQ address.

A civil suit should happen, however.

You're mistaken. The federal government claimed jurisdiction. It sited venue in California based on the MySpace Beverly Hills address. The State of California had no involvement in the case.

As for a civil suit -- on what basis? The First Amendment is a very high barrier to civil liability based on the content of speech that is not factually false and defamatory. --Bob

OK, someone got that wrong then.

The speech certainly was false! What else would you call making up a character with the intent to damage a person?

cracks me up!

[Appa23]

I didn't claim it was defamatory. It was intended to hurt the girl. That's a tort.

No, it's not. Jerry Falwell lost a Supreme Court case to Hustler Magazine (unanimously, in a decision written by Chief Justice Rehnquist) on precisely that issue. --Bob

Not true: the decision was not quite unanimous (one Justice did not participate, another concurred in the result but not in the reasoning), but more importantly, Falwell lost because he was a 'public figure,' and the Court essentially just upheld the traditional (since 1964, anyway) rule that you can say pretty much anything you want about a 'public figure' and not be taken to task for it. Falwell claimed that there was 'actual malice' in the case (the one exception to the 'public figure' rule), but the nature of the underlying action (an obvious parody) pretty much wiped that argument out, at least, in the eyes of the Supreme Court (both the trial court and the Court of Appeals had ruled AGAINST Flynt in that case, so it was not actually so cut and dried). In the cyberbullying case, you are not talking about a 'public figure' who is the victim of a tort, you are talking about a child who was otherwise unknown until she was victimized by a deliberate attempt to cause her harm.

This cracks me up!

Wintergreen saved me the time of explaining the actual holding and relevant findings of the Falwell case.

[Thousandaire]

Most internet terms of service are so broadly written as to be unenforceable, in my decidedly uninformed opinion.
Look at Yahoo's, for example:

"You agree to not use the Yahoo! Services to: 1. upload, post, email, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;"

Yet on Yahoo message boards there are thousands of "threatening, abusive, harassing" entries posted every day. These are subjective terms and I have no idea how you would prosecute or defend them in court.

That said, I was hoping Drew could be found guilty of a more serious charge.

[Ritterskoop]

How does everyone know who Drew is and where this took place?

[Bob78164]

I didn't claim it was defamatory. It was intended to hurt the girl. That's a tort.

No, it's not. Jerry Falwell lost a Supreme Court case to Hustler Magazine (unanimously, in a decision written by Chief Justice Rehnquist) on precisely that issue. --Bob

Not true: the decision was not quite unanimous (one Justice did not participate, another concurred in the result but not in the reasoning), but more importantly, Falwell lost because he was a 'public figure,' and the Court essentially just upheld the traditional (since 1964, anyway) rule that you can say pretty much anything you want about a 'public figure' and not be taken to task for it. Falwell claimed that there was 'actual malice' in the case (the one exception to the 'public figure' rule), but the nature of the underlying action (an obvious parody) pretty much wiped that argument out, at least, in the eyes of the Supreme Court (both the trial court and the Court of Appeals had ruled AGAINST Flynt in that case, so it was not actually so cut and dried). In the cyberbullying case, you are not talking about a 'public figure' who is the victim of a tort, you are talking about a child who was otherwise unknown until she was victimized by a deliberate attempt to cause her harm.

But the point of the analysis was that even though the claimed tort was intentional infliction of emotional distress, and even though the jury found for Falwell (thereby impliedly making all necessary factual findings in support of the verdict), none of that mattered because the basis of the charged conduct was pure speech. Under the applicable legal standard, there could be no liability for defamation, and that's pretty much the only basis for tort liability based on pure speech (other than a threat of imminent harm that can be classified as an assault).

The same thing is true here. The conduct was pure speech, it was obviously not defamatory (because, among other reasons, it wasn't published to others), so it can't give rise to tort liability under any theory. Why do you think the U.S. Attorney reached for such a tortured theory of liability to prosecute the case? --Bob