The American Spectator

The Nation's Pulse

A Federal Case

By Christopher Orlet on 12.8.08 @ 6:07AM

When one of us makes a big deal out of a relatively small matter, the more reasonable among us are likely to ask that we "not make a federal case of it."

It would be insensitive to say the bullying and subsequent suicide of a 13-year-old Missouri girl is a small matter. Especially when that story is for months badly reported and manipulated by the national media. So federal prosecutors did what savvy, career-minded professionals do: they decided to make a federal case of it.

Whatever else it might have been, the MySpace suicide case was good television, certainly better than the eerily similar Ryan Patrick Halligan story from 2003, which did not involve adult bullying. And because it was good TV, it received lots of attention, and because it received lots of attention -- as good TV is wont to do -- viewers demanded prosecutors and legislators do something about it. "There are two reasons why laws are made," said Demosthenes: "the first is to stop anyone committing any unjust acts, and the second is for the rest of the community to make those who transgress better by punishing them." Had he lived today, the Greek statesman might have argued for a third: "Because they make good TV."

Desperate to punish alleged cyberbully Lori Drew, 47, state prosecutors scrambled to find an applicable cyberbullying law. When they couldn't find one, federal prosecutors sought to turn what should have been a tort claim into a federal crime akin to computer hacking. Legal scholar Jonathon Turley expressed the perplexity of many legal professionals when he noted that "this is a case that belongs in tort not criminal law. Indeed, I remain confused why the family did not pursue Drew in tort. Instead, the prosecutors are criminalizing the tort of intentional infliction of emotional distress, which is referenced directly in the indictment." Adding to the circus atmosphere of the trial, the conspiracy theorists weighed in charging that the trial was just another attempt by "The Feds" to use "broad and badly drafted federal legislation" to criminalize everyday behavior so that they are free to begin rounding up whomever they want.

THE FEDS FAILED to make their case. A Los Angeles jury gave Drew a slap on the wrist, finding her guilty of three counts of gaining unauthorized access to MySpace for the purpose of obtaining information, and not for harassing the teen. (Not surprisingly, trial testimony showed that Drew, charged with violating MySpace's terms of service, hadn't bothered to read the policy. In a survey of 155 adults conducted in 2002 by the Privacy Council, only 22 percent admitted to reading privacy policies. Among respondents aged 18 to 25 only 8 percent read the policy.) In the process, the jury acquitted Drew of having anything to do with Megan Meier's suicide. Rather it turned out the hoax was the brainchild of the prosecution's star witness, Ashley Grills, then 18, who testified after a grant of immunity. Grills also created the fake profile, and sent the final message that allegedly drove the 13-year-old Megan Meier to suicide.

Conservatives had mixed feelings at the outcome. As one commentator noted: "I know it won't go over real well with people who have irrational bloodlust, but maybe the legal system should not be viewed strictly as a results-oriented means of railroading convictions against bad people without regard for the consequences for the rest of the populace going forward." Indeed, at one time a woman like Lori Drew would have been tar and feathered and ridden out of town on a rail. Or placed in the stocks. Today society is much too civilized for that. Instead Drew received harassing phone calls and death threats. Signs posted around the neighborhood called her a murderer. School officials asked Drew's daughter, Sarah, 14, to leave school after they concluded they could not control the bullying she was receiving from students. Eventually the family was forced to move away.

Conservatives are uncomfortable with bullying laws. Most female bullying is non-aggressive or "indirect bullying," such as social isolation (which includes gossip, criticism, ostracism). The consequences of non-aggressive bullying can be just as devastating to a young girl. But it would be impossible and unwise to criminalize ostracism. Bringing this case to federal court meant it was potentially a federal offense to criticize or spread rumors about someone online, which is why the case should be thrown out on appeal.

It behooves us to remember that life isn't fair and no amount of legislation is going to make it so.

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