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Commentary: When is something morally offensive a crime?

This article first appeared in the St. Louis Beacon, Aug. 24, 2009 - When I began teaching criminal law two weeks ago, I gave my class the sorry and by now familiar facts of the Lori Drew case: Drew had set up a fake MySpace page under the name of “Josh Evans,” ostensibly to find out what Megan Meier had been saying about Drew’s daughter -- a former friend of Megan’s. After some relatively harmless, semi-flirtatious exchanges with Megan, “Josh” turned on her, wondering if he could be friends with her because she wasn’t nice with her friends. The final straw came when a message sent from the MySpace account to Megan said that the world would be a better place without her. Distraught, Megan took her life.

After reciting the facts, I polled my class. Was Lori Drew guilty of a crime? Twenty three out of 25 students said yes, even though at that point, we weren’t really sure which crime she could be convicted of. So we turned to the books.

Murder? No. How about impersonation? No again (that’s only if you impersonate a public servant or licensed professional.) Endangerment of a child seemed a more promising possibility, but there was the tricky question of whether Lori Drew had created a “substantial risk” of danger to Megan by her messages. Even the harassment statute – and what was Drew doing other than harassing Megan? -- seemed drawn from a more distant age, where harassment was done by letters sent in the mail or calls over the telephone, not via posts on MySpace.

Fitting the clean lines of the law to the messy facts of the Drew case proved harder than it first appeared. Still, my class was more than a little surprised to find out that Missouri state and federal prosecutors decided not to charge Drew with anything. Drew was only later – and controversially – charged in California under federal law for violating the myspace terms of agreement. And then, after being found guilty of three misdemeanor charges, a federal judge issuing a directed acquittal, overturning the jury.

After the Drew case, the Missouri Legislature went into action, updating the harassment statute to make harassment via “electronic communication” a crime. It also significantly broadened the statute, by making “any act” done without “good cause” and designed to inflict “emotional distress” a crime.

Now, this past week, we have the first case of someone charged with felony harassment under the new, broader statute. A St. Peters woman was accused of harassment for allegedly putting up a fake Craigslist posting under the name of the daughter of her ex-husband’s girlfriend. The post was placed in the “Casual Encounters” section; and, predictably, the daughter quickly found her inbox flooded with lewd e-mails and pornography.

As Lori Drew provided the perfect example for my first class, the St. Peters case provides a perfect example for the lesson for this week. We’ll be reading cases and talking about two major defects in criminal statutes: They can be too vague, and they can be overbroad.

Criminal statutes are vague when they don’t give sufficient guidance about what would violate them. For example, in the statute the St. Peters woman was charged under, what counts as threatening without “good cause”? What does “emotional distress” mean? Vague terms in statutes are dangerous, because they give prosecutors discretion to only go after behavior they don’t happen to like. They also fail to give people fair notice about what, exactly, they’re not supposed to be doing. When is something meant to cause embarrassment a crime, and when is it just a practical joke?

Second, criminal statutes go wrong when they are too broad, and reach to behavior that may be bad but not necessarily criminal. Lots of loitering statutes have been struck down as overbroad because they seemed to turn aimlessly going for a stroll into potentially criminal behavior. Law professors Eugene Volokh and Daniel Solove both worried when the new Missouri statute was passed that it basically made teasing someone a crime. Sure, teasing is a bad thing – especially when adults do it to kids -- but should people go to jail for it?

What I try to impress on my class in the first few weeks is that the relationship of the criminal law and morality is in one sense straightforward and in another sense complicated. Many things that we think are deeply immoral are also crimes: rape, murder, theft.

That’s clear enough, and my students understand that the criminal law is a way of saying clearly and unequivocally that some behavior won’t be tolerated. But morality also should inform how we go about imposing the criminal law. We need to be fair in setting out what conduct will be punished.

We are still figuring out what rules ought to govern social networking sites. Some of those rules will be informal and conventional. And there is a place for the criminal law, of course: Consider the older man who uses MySpace or Facebook to troll for sex with young children. But we should be careful where we draw the line between the criminal and the morally bad. And when we draw that line, we should draw it clearly.

Chad Flanders is assistant professor of law at the Saint Louis University School of Law.