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Thrasher case tests state's new cyber-harassment law

This article first appeared in the St. Louis Beacon, Aug. 20, 2009 - If Elizabeth A. Thrasher is to be convicted of the felony of cyber-harassment, St. Charles County prosecutors may have to justify carving out a new exception to the First Amendment.

Thrasher is the 40-year-old St. Peters woman who this week became the first person charged under the felony provisions of a new state cyber-harassment law passed in the wake of the Megan Meier MySpace suicide. St. Charles County Prosecuting Attorney Jack Banas, who decided he could not prosecute in the Meier case, brought the charges against Thrasher under the new law. (Click here to read Missouri law review article arguing Missouri law is constitutional.)

Thrasher allegedly became angry at the 17-year-old daughter of a woman who was dating Thrasher's ex-husband. Thrasher, the 17-year-old and the teen's mother argued back-and-forth on MySpace, with the 17-year-old posting one message telling Thrasher to "grow up." Thrasher then allegedly posted photos of the girl on the "Casual Encounters" page of Craigslist, along with the phone number and workplace for the girl and a message that could be interpreted as sexually suggestive. The posting prompted men to send lewd photos and messages to the young woman, police said.

The biggest legal issue raised by the prosecution is whether Thrasher's conduct fits into a recognized exception to the First Amendment. Roger Goldman, a constitutional law professor at Saint Louis University, put it this way: "Does it fit within the traditional exceptions, e.g., fighting words ... or does there need to be a new exception?"

Two recognized free speech exceptions are "fighting words" and "true threats." Fighting words are often face-to-face insults that could provoke a physical fight. A true threat is a statement where the speaker means to convey the intent to commit an act of unlawful violence.

The Missouri law makes it a felony for anyone who "knowingly communicates" with a person 17 or under and "recklessly frightens, intimidates, or causes emotional distress" to the minor."

Recklessness is easy to prove. Courts might question whether proof of mere recklessness is enough indication of a criminal state of mind to justify a felony conviction for harassing speech.

Rep. Linda Sanchez, D-Ca., has introduced a similar law in Congress. HR 1966, the Megan Meier Cyberbullying Prevention Act , still is pending.

UCLA law professor Eugene Volokh has criticized the bill as overly broad and unconstitutional because it would criminalize all sorts of protected speech. For example, the bill would seem to criminalize hostile blogs criticizing members of Congress or newspaper editorials strongly denouncing a politician.

"The law, if enacted, would clearly be facially overbroad (and probably unconstitutionally vague)," Volokh wrote, "and would thus be struck down on its face under the First Amendment. But beyond that, surely even the law's supporters don't really want to cover all this speech. What are Rep. Linda Sanchez and the others thinking here?"

William H. Freivogel is director of the School of Journalism at Southern Illinois University Carbondale and a professor at the Paul Simon Public Policy Institute. Previously, he worked for the St. Louis Post-Dispatch for 34 years, serving as assistant Washington Bureau Chief and deputy editorial editor. He covered the U.S. Supreme Court while in Washington. He is a graduate of Kirkwood High School, Stanford University and Washington University Law School. He is a member of the Missouri Bar.