Criminal

Miami Judge Drops Hammer on Photojournalist Who Took Cops' Picture

Arthur Bright — Thu, 03 Jul 2008 08:27:16 -0400

“Photography is not a crime, it’s a First Amendment right,” proclaims the title of photojournalist Carlos Miller’s blog. Nonetheless, a jury found Miller guilty of obstructing traffic and resisting arrest without violence during his encounter last year with five Miami police officers that he photographed on a public street. As a result, Miami County Court Judge Jose Fernandez sentenced him to one year of probation,100 hours of community service, anger management lessons, and over $500 in court fees, well in excess of the three months probation the prosecutor had been seeking.

Miller was arrested on February 20, 2007, after he saw the police questioning a man "in a gravel construction area between the road and the sidewalk," according to a post Miller made a few days later on Democratic Underground, a liberal online forum. (The post does not indicate how the construction affected traffic along the street.) When Miller, who was also standing in the gravel area, started to photograph the police, they told Miller to move along. Miller said he refused, arguing that it was a public street, and continued to shoot photos of the police. The police then escorted him across the street and, according to Miller, forcibly arrested him.

In contrast, the police said that Miller began taking pictures of them while standing in the street blocking traffic, according to an officer’s report which Miller has posted online. The officer wrote that the five police present told Miller to cross to the other side of the street, but Miller refused and continued to take pictures. When the police attempted to escort Miller across the street, the report said that he resisted, so they arrested him. (Contrary to the police report, however, the photos that Miller took of the police, one of which appears at the top of his blog indicate that he was not in the street.)

The police initially charged Miller with nine counts, but they were later reduced to four: disobeying a police officer, disorderly conduct, resisting arrest without violence, and obstructing traffic. The jury found Miller not guilty of disobeying a police officer and disorderly conduct.

The original incident prompted Miller to start blogging, and as the name of his blog makes plain, photographers' rights are his main subject. “I started this blog to document my trial,” he wrote in the About section, “but as it languished, I began documenting First Amendment violations against other photographers throughout the country, which occur on a shockingly regular basis.” In particular, he focuses on violations committed by law enforcement; his blog entries feature incidents all over the U.S. of cops confronting people taking pictures or recording videos. He also covered his trial's progress, with which Judge Fernandez expressed irritation during Miller's sentencing.

The verdict against Miller drew "disappointment and concern" from the Society of Professional Journalists ("SPJ"), according to an SPJ press release.

“The fact that Mr. Miller was arrested for taking pictures in a public place was the first violation of his First Amendment rights,” SPJ President Clint Brewer said. “Those rights were violated again when Mr. Miller’s statements in his blog became factors in Fernandez’s sentence. The Society fully defends Mr. Miller’s right to speak freely in his blog.”

The SPJ also took the opportunity to post a guide advising reporters how to avoid confrontations with police while gathering information.

Miller is appealing his conviction for resisting arrest, according to a post on Miller's blog by his trial attorney, though it appears that Miller will have new counsel on appeal.

Unfortunately, it's hard to see how Miller can show that the trial court erred in finding him guilty of resisting arrest without violence. Of the elements of the crime listed in Fla. Stat. § 843.02, the one most susceptible to challenge would appear to be the requirement that the officers were acting "in the lawful execution of any legal duty." If Miller could show that the officers' arrest for obstruction of traffic was bogus, that would topple the charge of resisting arrest. But looking at the little evidence available online, the case appears to be Miller's word against the officers' word, and the jury evidently felt the officers' word was sufficient to prove obstruction of traffic. Without any more evidence, it's difficult to see grounds for overturning the criminal conviction.

But even if Miller's arrest was legal, his sentencing is problematic and merits appeal. According to another post on Miller's blog, Judge Fernandez seems to have taken personal exception to Miller's lack of remorse, saying that it "appall[ed]" him. While Judge Fernandez is welcome to his personal opinion about Miller, under Florida law, he cannot use Miller's lack of remorse to impose a harsher sentence.

While a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt. Although remorse and an admission of guilt may be grounds for mitigation of sentence, the opposite is not true.

Ritter v. State, 885 So.2d 413, 414 (Fla. App. 2004) (citations removed). Considering the rather stunning discrepancy between the sentence that the prosecutor sought and the sentence that Judge Fernandez gave, it sure looks like the judge let his feelings about Miller's lack of remorse color his sentencing. In Ritter, the Florida District Court of Appeal overturned a sex offender's sentence, which went above and beyond that the prosecutor asked for, because the trial judge took umbrage at the offender's continued claims of innocence. Miller's case seems directly on point with Ritter, and if so, Miller's sentence should be vacated and remanded to a new judge.

(Arthur Bright is a second-year law student at the Boston University School of Law and a CMLP Legal Intern.)

WIA Releases Report on Arrests of Bloggers, Does It Overcount?

Arthur Bright — Tue, 24 Jun 2008 12:25:41 -0400

According to a new report by the World Information Access (“WIA”) Project, 64 independent bloggers have been arrested since 2003, suggesting governments around the world are growing more aware of blogs and more likely to act to silence bloggers.

In the report, WIA researchers write that they used Google and LexisNexis to find arrests of bloggers who were unaffiliated with news organizations. The researchers found that the number of reported arrests appeared to increase over the years, with just five arrests during 2003, but totaling 36 in 2007. Arrests were most frequent in China (11), Egypt (13), and Iran (8), and overall Asia and the Middle East accounted for the lion’s share of WIA’s data. But western nations were not blameless – researchers recorded a blogger arrest in each of Britain, Canada, and France, and three arrests in the U.S. as well (Josh Wolf, Jack McClellan, and Daniel Aljughaifi). On the whole, WIA reports that the arrested bloggers tended to be males between the ages of 21 and 45, and the durations of their arrests ranged from a few hours to eight years.

The researchers observe that blogger arrests seem to increase during “times of political uncertainty,” noting for example that most of Egypt’s arrests took place during its 2007 elections. The researchers predict that 2008 will likely see a further increase in the arrests of bloggers, as China, Iran, and Pakistan all have elections this year.

The researchers also acknowledge that there are likely more arrests than they’ve managed to include in the report, noting for example that according to a list kept by the Committee to Protect Bloggers (“CPB”), 344 Burmese have been arrested, and some of those may be bloggers. (The CPB wrote after the WIA report’s release that it is indeed likely that some of the 344 are bloggers, though certainly not all of them.)

Unfortunately, while acknowledging the survey’s undercounting of arrested bloggers, the researchers appear to have inadvertently overcounted the arrests instead. Despite the report’s stated intent to “record[] only bloggers who were arrested for using electronic media . . . to discuss or record political issues and events,” it often seems to fudge the distinction between arrests for blogging, the survey’s purported goal, and arrests of bloggers, where blogging was not itself the grounds for arrest. I counted at least 13 instances where, from the articles cited in their data, it was either unclear or unlikely that the blogger’s online activities directly related to his or her arrest.

Take blogger Alaa Abd El-Fatah, one of the report’s data points. Fatah was one of some ten people arrested for taking part in a peaceful demonstration. Judging by the article cited by the report, Fatah is a prominent Egyptian blogger. It is likely that his arrest will chill the speech of other Egyptian bloggers. But is his blogging relevant to his arrest? From the article’s description, it doesn’t appear to be. Rather, his arrest seems to stem directly from participating in the protest.

Similarly, two of the three U.S. blogger arrests that the report cites seem loosely tied to the bloggers' online activities. Jack McClellan, a self-proclaimed pedophile who posted photos of children he had taken in public places on his blog, was arrested for violating a restraining order against coming within 30 feet of any child in California. Daniel Aljughaifi was arrested for undergoing terrorist training in Africa and for conspiring to use a destructive device. Of the three U.S. bloggers' arrests, only that of Josh Wolf, arrested for refusing to turn over to a federal grand jury footage he filmed and posted of a burning police car, seems directly tied to blogging. The fact that McClellan and Aljughaifi have blogs appears coincidental, not causal, to their arrests.

Is it helpful to include arrests like those of Fatah, McClellan, and Aljughaifi in the WIA survey? I’d argue no. While it is commendable to analyze the efforts of governments around the world to muzzle bloggers, it is the repression of free speech that is the concern. By including the arrests of those who happen to be bloggers in their count, the WIA researchers diminish the impact of their report, because they blur the value of that which they mean to defend.

(Arthur Bright is a second-year law student at the Boston University School of Law and a CMLP Legal Intern.)

U.S. Blogger Facing Criminal Libel Charges in Singapore

Arthur Bright — Wed, 18 Jun 2008 12:54:50 -0400

Singapore officials Monday amended the charge against blogger Gopalan Nair, a U.S. citizen who blogs from Fremont, California, accusing him of insulting a public official for his criticism of Singaporean Judge Belinda Ang that he published in his blog, Singapore Dissident, last month. The original charge had asserted that Nair insulted Ang in an email.

In late May 2008, Nair, a former Singaporean lawyer before he emigrated to the U.S., attended a sentencing hearing in the defamation trial of two members of the opposition Singapore Democratic Party. The defendants had been found guilty of libeling former Prime Minister Lee Kuan Yew and current Prime Minister Lee Hsien Loong, Lee Kuan Yew’s son. Lee Kuan Yew, whom Nair frequently criticized in his blog, testified at the hearing.

In his May 29, 2008 blog entry, Nair wrote that Ang, who presided over the hearing, "prostitut[ed] herself during the entire proceedings, by being nothing more than an employee of Mr. Lee Kuan Yew and his son and carrying out their orders." In another blog entry, Nair challenged Lee Kuan Yew to charge him with defamation, writing "I am now within your jurisdiction.... What are you going to do about it?" On the evening of May 31, Singaporean police arrested Nair in his hotel and put him in solitary confinement until he was released on bail on June 5.

In addition to the amended charge filed Monday, Nair was also charged with contempt of court based on an email he allegedly sent to Singaporean Judge Lai Siu Chiu in March 2006. TODAYonline, a Singapore newspaper, wrote that "[a]ccording to the charge filed in the Subrodinate [sic] Court yesterday, Nair had accused Justice Lai of having 'no shame'. He also accused other judges of 'selling their souls (and) their conscience for money'. He charged: 'Your Singapore judges including Lai are corrupt judges.'"

With the original charge amended, Nair faces two counts under Section 228 of Singapore's Penal Code. Section 228 states:

Whoever intentionally offers any insult or causes any interruption to any public servant, while such public servant is sitting in any stage of a judicial proceeding shall be punished with imprisonment for a term which may extend to one year, or with fine which may extend to $5,000, or with both.

The Strait Times reported that the charges will be heard by Singapore’s High Court. The original, unamended charge against Nair had been filed under Section 13D (1)(a) of the Miscellaneous Offences (Public Order & Nuisance) Act, which would have been heard in the lower Subordinate Courts. As a condition of his bail, Nair must report to the police daily until July 14, when his trial date is expected to be set.

Nair’s arrest was swiftly condemned by journalistic freedom groups. The Committee to Protect Journalists wrote in a press release:

Singapore’s media is tightly controlled, according to CPJ research, and is kept in line in large part due to the government’s aggressive use of libel laws.

“Singapore’s detention of Gopalan Nair for public comments about such a highly politicized case is completely unwarranted,” said CPJ Asia Program Coordinator Bob Dietz. “Freedom to criticize the judiciary is fundamental to a modern society. This case illustrates the Singapore government’s ongoing commitment to silencing opposition voices both in print and online.”

Reporters Without Borders also criticized the decision, calling the trial that Nair initially criticized “a farce.” “This charge is improper and will add to the intimidation of bloggers and Internet users who express themselves about Singapore’s political life,” the organization added.

Despite the charges, Nair has not removed the offending blog entry from his site. He also has been updating his blog regularly with accounts of his legal proceedings. In addition, Nair’s lawyer, Chia Ti Lik, offers his view of the case on his own blog.

Reuters reported that Nair has run afoul of Singapore’s law before. In 1991, he was found guilty of contempt of court for comments he made during a political speech, and was charged 21,000 Singapore dollars in fines and legal fees. Reuters added that the U.S. embassy said that it is monitoring Nair’s case.

You can follow further developments in Singapore's dealings with Nair in our Legal Threats Database entry: Singapore v. Nair.

(Arthur Bright is a second-year law student at the Boston University School of Law and a CMLP Legal Intern.)

Lori Drew Indicted For Misuse of MySpace in Megan Meier Suicide Case

David Ardia — Fri, 16 May 2008 14:54:01 -0400

Lori Drew was indicted on Thursday for her alleged role in a hoax on MySpace directed at Megan Meier, a 13-year-old neighbor of Drew's who committed suicide in October 2006 after a "boy" she met on MySpace abruptly turned on her and ended their relationship. The boy was allegedly Lori Drew, who pretended to be 16-year-old "Josh Evans" to gain the trust of Megan, who had been fighting with Drew's daughter.

I've blogged about this tragic story several times and noted in January that the Los Angeles Times was reporting that a federal grand jury in Los Angeles had begun issuing subpoenas in the case. The grand jury has now charged Drew with conspiracy and three counts of accessing protected computers without authorization in violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030. The indictment charges that

[o]n or about the following dates, defendant DREW, using a computer in O'Fallon, Missouri, intentionally accessed and caused to be accessed a computer used in interstate commerce, namely, the MySpace servers located in Los Angeles County, California, within the Central District of California, without authorization and in excess of authorized access, and, by means of interstate commerce obtained and caused to be obtained information from that computer to further tortious acts, namely intentional infliction of emotional distress on [Meier].

The Associated Press provides a bit more background on the indictment, noting that Drew has denied creating the account or sending messages to Meier:

Drew will be arraigned in St. Louis and then moved to Los Angeles for trial.

The indictment says MySpace members agree to abide by terms of service that include, among other things, not promoting information they know to be false or misleading; soliciting personal information from anyone under age 18 and not using information gathered from the Web site to "harass, abuse or harm other people."

Drew and others who were not named conspired to violate the service terms from about September 2006 to mid-October that year, according to the indictment. It alleges they registered as a MySpace member under a phony name and used the account to obtain information on the girl.

Drew and her coconspirators "used the information obtained over the MySpace computer system to torment, harass, humiliate, and embarrass the juvenile MySpace member," the indictment charged.

The United States Attorney prosecuting the case, Thomas P. O'Brien, has said this is the first time the CFAA, which is normally used to address hacking, has been applied in a social-networking case. Not surprisingly, there is some doubt as to whether the CFAA even applies to the conduct Drew is alleged to have engaged in.

Orin Kerr and Daniel Solove at Volokh Conspiracy and Concurring Opinions, respectively, have parsed the language in the CFAA and concluded that while Drew's alleged conduct is reprehensible, it is not illegal. Both Kerr and Solove argue that to predicate a criminal prosecution on the violation of a site's terms of service is a big stretch.

While the CFAA generally prohibits accessing a computer "without authorization" or "exceeding authorized access," it takes a pretty broad reading of the Act to conclude that it encompasses a violation of a site's terms of service. If a website's terms of service require civility, for example, is it a crime to behave rudely? Moreover, as Kerr points out,

there is no evidence that Drew even read the TOS [terms of service]. Most people don't, of course; I would be surprised if 1 person in 100 actually tried reading it. If Drew wasn't aware that she was violating the TOS, she couldn't be exceeding her authorized access intentionally.

Grand Jury Issues Subpoena to MySpace in Megan Meier Suicide Case

David Ardia — Thu, 10 Jan 2008 10:28:21 -0500

The Los Angeles Times reported yesterday that a federal grand jury in Los Angeles has begun issuing subpoenas in the Megan Meier case, the Missouri teenager who committed suicide after a "boy" she met on MySpace abruptly turned on her and ended their relationship. According to the Los Angeles Times, the boy was allegedly Lori Drew, a neighbor who had pretended to be 16-year-old "Josh Evans" to gain Megan's trust. (You can read more about the case in a post I wrote in November.)

According to anonymous sources who spoke to the Times:

Prosecutors in the U.S. attorney's office in Los Angeles, however, are exploring the possibility of charging Drew with defrauding the MySpace social networking website by allegedly creating the false account, according to the sources, who insisted on anonymity because they are not authorized to speak publicly about the case.

The sources said prosecutors are looking at federal wire fraud and cyber fraud statutes as they consider the case. Prosecutors believe they have jurisdiction because MySpace is headquartered in Beverly Hills, the sources said.

If you are interested in the legal issues involved in this case, you can participate in a online chat on the Washington Post website from 11:00 AM to noon EST today on privacy, free speech, and anonymity on the Internet. Daniel Solove, who has written extensively about these issues, will be one of the participants and he expects to spend some time discussing the Meier case.

Kansas Court Issues Search Warrant to Lawrence Journal-World Seeking Identity of Anonymous User

David Ardia — Wed, 09 Jan 2008 15:46:54 -0500

Last month, an investigator at Kansas University delivered a search warrant to the Lawrence Journal-World, a highly regarded newspaper in Lawrence, Kansas, demanding access to their computer servers in order to get information about the identity of a user who had posted comments on the paper's website, LJWorld.com. The warrant, which appears to violate the federal Privacy Protection Act, raises serious concerns about governmental overreaching and highlights the need for adequate procedural protections for anonymous online speech.

Based on the search warrant's description of the evidence to be searched, investigators were after the identity and contact information of a pseudonymous user named "a2thek," who had commented on a December 8, 2007 article about a Kansas University student who was found dead in a KU dorm room, indicating that the death was heroin-related. According to the Lawrence World-Journal, which made the search warrant public on January 6, 2008, the investigator gave the paper "the opportunity to call its attorney, who contacted the district attorney’s office and the court to object to the search warrant. During that time period, the KU investigator left the Journal-World offices without executing the search warrant and did not return."

Although the investigator ultimately backed down, the fact that the local district attorney's office sought -- and a Kansas state judge issued -- a warrant on a news organization is very troubling. If the public believes that news organizations -- whether they be citizen media or professional media -- are simply repositories of information that law enforcement can tap at will, this will have a chilling effect on speech, as people will be less likely to post information on these sites. This risk didn't go unnoticed at the Journal-World:

"What we see is that more and more frequently, law enforcement is scrutinizing the postings on our Web site and is attempting to use what we consider fishing expeditions to come after the identity of individuals,” said Ralph Gage, director of Special Projects for The World Company, which publishes the Journal-World. “We do feel an obligation to the people who use that site to not be an automatic conduit for law enforcement."

Moreover, it's likely that the search warrant violated the Privacy Protection Act which, subject to certain exceptions, makes it "unlawful for a government officer or employee, in connection with the investigation or prosecution of a criminal offense, to search for or seize documentary materials . . . possessed by a person in connection with a purpose to disseminate to the public a newspaper, book, broadcast, or other similar form of public communication." 42 U.S.C. § 2000aa(b).

Demonstrating some disdain for anonymous online speech, District Attorney Charles Branson told the Lawrence Journal-World that the Act doesn't prohibit searches related to the identity of an online user:

“The best thing I can say about the Privacy Protection Act of 1980 is that it needs to be revised,” Branson said. “What it hasn’t been able to do is keep up with the times. In 1980, they had no clue what a blog is and how it would operate. They didn’t understand that people would basically be able to spray paint on it like a graffiti wall and move on.” Specifically, Branson said he did not believe an electronic file containing information about the identify of an online poster could be considered the “work product” of the newspaper.

While the Act does contain a separate section dealing with "work product material," which is entitled to even greater protection, the law's protections are not limited merely to work product. As the language I've quoted above shows, the protection also extends to "documentary materials . . . possessed by a person in connection with a purpose to disseminate to the public." I couldn't find any cases interpreting this language in the context of anonymous user information, but the plain language of the statute would seem to support the inclusion of this information under the Act. If you know of a case addressing this question, please let me know by commenting to this post.

It's also obvious that investigators sought to avoid having to take the proper -- and legally permissible -- route of issuing a subpoena for the information. And why would they do that? Because a subpoena implicates certain due process protections, especially the right to reasonable notice and an opportunity to object. If the newspaper had received a subpoena it or the user could have filed a motion to quash on a variety of grounds, including a possible claim that providing the information would violate the reporter's privilege or the First Amendment's protection of anonymous speech. A search warrant, on the other hand, gives law enforcement the right to collect the information immediately and thus obviates these procedural protections.

As a side note, after the Journal-World made the search warrant public, a2thek posted a follow-up comment apologizing for providing inaccurate information in his earlier comment:

This infomation [sic] is not 100% correct and I would like to take some time to apologize for any mis-information. The guy that works with me I overheard in the bathrool [sic] making this speculation of what actually happened so I dont [sic] know if it's actual fact or hearsay. I do once again dont [sic] want to draw any lines or conclusions being I really dont know anything about all of it and I think the guy at work was just an aquitance [sic] and went to school with the guy and that's what he heard. I guess when a autopsy is performed that will get you the answers that your looking for. Sorry for all the misleading info once again.

You can read more about the search warrant and track future developments by reviewing the CMLP's database entry: Kansas University v. Lawrence Journal-World.

British Blogger Threatened with Arrest for Inciting Racial Hatred

David Ardia — Mon, 07 Jan 2008 09:43:01 -0500

Glenn Reynolds over at Instapundit.com reports that a British blogger was recently threatened with arrest for inciting racial hatred. The blogger, who runs a controversial Christian blog and goes by the pseudonym Lionheart, stated on his blog that British police are threatening to arrest him for "stirring up racial hatred by displaying written material" contrary to sections 18(1) and 27(3) of the Public Order Act 1986.

Reynolds recommends that if you're interested in supporting free speech rights -- and you should be if you are reading this blog -- you can contact the British Embassy to let them know that people shouldn't be arrested merely for writing things that the powers-that-be find distasteful.

(Note: Glenn Reynolds is on the CMLP's Board of Advisors.)

Massachusetts Wiretapping Law Strikes Again

Sam Bayard — Wed, 12 Dec 2007 11:20:59 -0500

Boston Now reports that Peter Lowney, a political activist from Newton, Massachusetts, was convicted last week of violating the Massachusetts wiretapping statute (Mass. Gen. Laws ch. 272, § 99) and sentenced to six months probation and fined $500. The criminal case arose out of Lowney's concealed videotaping of a Boston University police sergeant during a political protest in 2006. Apparently Lowney was shooting footage of the protest when police ordered him to stop and then arrested him for continuing to operate the camera while hiding it in his coat. As part of the sentencing, the Brighton District Court ordered Lowney to remove the footage from the Internet.

The Massachusetts wiretapping statute criminalizes "interception of wire and oral communications" and defines "interception" as the secret recording of the contents of a communication through the use of an "intercepting device" without the permission of all parties to the communication. The statute provides that a person who "willfully commits an interception" may be punished with a fine of up to $10,000, imprisoned for up to five years, or both. Massachusetts is among the minority of states that prohibit recording a conversation without the permission of all parties involved. Most states and the federal wiretapping law permit secret recording of a conversatino if one party to the conversation consents.

Eugene Volokh and Daniel Solove both posted about the Lowney case yesterday, and both do a good job at pointing out why the Massachusetts statute is wrong-headed from a policy perspective. It makes little sense that a statute aimed at protecting privacy should be used to stop the recording of public officials engaging in a public function (in public no less!). The reach of the statute doesn't just affect citizens who legitimately want to document mistreatment at the hands of government officials, but impedes newsgathering as well (note that Lowney himself appears to have taken on a journalistic function when he posted his footage on the Internet). Solove sums the situation up well by quoting from the dissenting opinion in another Massachusetts case involving the wiretapping statute, Commonwealth v. Hyde, 750 N.E.2d 963 (Mass. 2001):

The purpose of G.L. c. 272, § 99, is not to shield public officials from exposure of their wrongdoings. I have too great a respect for the Legislature to read any such meaning into a statute whose purpose is plain, and points in another direction entirely. Where the legislative intent is explicit, it violates a fundamental rule of statutory construction to reach a result that is plainly contrary to that objective. . . . To hold that the Legislature intended to allow police officers to conceal possible misconduct behind a cloak of privacy requires a more affirmative showing than this statute allows. . . .
The statute, on its face, makes no exception for members of the media or anyone else. Had Michael Hyde, the defendant in this case, been a news reporter he could have faced the same criminal consequences that the court now sanctions. If the statute reaches actions by police officials acting in their public capacities in the plain view of the public, the legitimate news gathering of the media is most assuredly implicated.

Incidentally, this is not the first time that the Massachusetts law has been on our radar screen. In 2006, Mary Jean, a Massachusetts resident and the operator of the website Conte2006.com, posted a video to the site that showed state police engaging in a warrantless and possibly unconstitutional search of Paul Pechonis' home. The video was recorded by Pechonis' child-security system (or "nanny cam"), and Pechonis himself gave the video to Jean. On Feb. 14, 2007, the Massuchetts state police sent a cease-and-desist letter to Jean demanding that she remove the video within 24 hours or face criminal action under the wiretapping statute. Rather than removing the video, Jean filed a lawsuit in federal court requesting an injunction to prevent the Massachusetts police from pursuing legal action. The district court granted the injunction, and the First Circuit Court of Appeals affirmed, holding that the First Amendment barred the Massachusetts police from prosecuting Jean for publishing the video, even assuming she knew that it was unlawfully recorded. (Please see the CMLP database entry, Massachusetts State Police v. Jean, for details.)

The Jean case is obviously different from Lowney's because he actually made the recording at issue, and the State presumably prosecuted him for the act of recording, not publishing the footage (although the details of the case are not clear based on the press report). Without the obvious First Amendment concerns present in Jean, this case draws into focus even more clearly the basic public policy shortcomings of the statute.

Note: This post previously misidentified Paul Pechonis. When the police conducted a warrantless searched of his home on September 29, 2005, they arrested him on a misdemeanor charge.

Missouri Town Makes Online Harassment a Crime After Megan Meier's Suicide

David Ardia — Tue, 27 Nov 2007 18:53:05 -0500

City officials in Dardenne Prairie, Missouri unanimously passed a measure on November 21 making online harassment a crime, punishable by up to a $500 fine and 90 days in jail. The city's six-member Board of Aldermen passed the ordinance in response to 13-year-old Megan Meier's suicide.

Meier committed suicide after a "boy" she met on MySpace abruptly turned on her and ended their relationship. The boy was allegedly Lori Drew, a neighbor who had pretended to be 16-year-old "Josh Evans" to gain the trust of Megan, who had been fighting with Drew's daughter, according to the Los Angeles Times. (In an interesting side note, the local media refused to identify the neighbor who was allegedly involved, so several blogs such as RottenNeighbor.com and hitsusa.com did some investigating and identified Drew and posted the Drews' home address, phone numbers, e-mail addresses and photographs.)

When it looked like local and federal prosecutors could not find a way to charge anyone for Meier's death, city officials stepped in and made online harassment a crime. As the Associated Press reports:

Mayor Pam Fogarty said the city had proposed the measure after learning about Megan Meier's death. "It is our hope that by supporting one of our own in Dardenne Prairie, we can do our part to ensure this type of harassing behavior never happens again, anywhere," Fogarty said, adding, "after all, harassment is harassment regardless of the mechanism or tool."

While Meier's suicide is a tragedy and it is laudable that city officials want to reduce online harassment, criminalizing such conduct raises important First Amendment concerns. I should point out, however, that I've been unable to review the actual language of the ordinance, and have had to rely on the following press reports.

According to the St. Louis Post-Dispatch, "the ordinance outlaws harassment using electronic communication, which includes the Internet, e-mail, paging services and mobile phone text messaging." The Associated Press is a bit more helpful:

The four-page measure defines both harassment and cyber-harassment, essentially making it illegal to engage in a pattern of conduct that would cause a reasonable person to suffer "substantial emotional distress," or for an adult to contact a child under 18 in a communication causing a reasonable parent to fear for the child's well-being.

Generally speaking, the government may ban speech in this context only if it will clearly cause direct and imminent harm. Because the Dardenne Prairie ordinance appears to criminalizes otherwise protected speech (for example, pure opinion), it is likely to be unconstitutional.

Update on Phoenix New Times Case

Sam Bayard — Fri, 26 Oct 2007 10:57:41 -0400

As mentioned in our previous post on the Phoenix New Times arrests, two Phoenix-area news organizations filed a motion on October 19 requesting the Arizona Superior Court to publicly release documents related to the New Times grand jury investigation, presumably including the subpoena that caused all the ruckus.

The First Amendment Center reported yesterday that the court ordered the release of the requested documents on Wednesday, October 24. According to the First Amendment Center's article, Judge Baca of the Superior Court indicated that release was appropriate in part because the New Times had reported the existence of the grand jury subpeona on October 18, and in part because "other documents in the file didn't need to be kept secret to protect the grand jury process and the matter was of public concern."

The CMLP applauds this move, which is sure to contribute to free and open debate about the subpoena, which plainly overstepped the legitimate bounds of prosecutorial inquiry.