Magistrate Marcia Linsky of the Allen County (Indiana) Superior Court sent me a link to a recent opinion from the Indiana Supreme Court that deals with a very different kind of harassment. . . harassment by a middle school student.
According to the Indiana Supreme Court’s opinion, this is what resulted in the student's being charged with harassment:
When the 2005-06 school year began, A.B. was a student at Greencastle Middle School, where Shawn Gobert had been principal for thirteen years. Sometime before February 2006, she transferred to a different school. In February 2006, Mr. Gobert learned from some of his students of a vulgar tirade posted on MySpace that apparently targeted his actions in enforcing a school policy. As appropriate for a . . . prudent school administrator, Mr. Gobert investigated. With the assistance of others, including some students, he discovered that a `Mr. Gobert’ profile” had been created on a MySpace Internet web page, purportedly by him, and on which A.B. had posted a vulgarity-laced tirade directed against him. In fact, another juvenile, R.B., a friend of A.B. and at the time a student at Greencastle Middle School, had created this false `Mr. Gobert’ MySpace private `profile’ and allowed access to it by twenty-six designated `friends,’ one of whom was A.B. A.B. then made her posting about Mr. Gobert on this private `profile’. Thereafter, . . . A.B. created her own MySpace `group’ page, accessible by the general public, and titled with a vulgar expletive directed against Mr. Gobert and Greencastle schools.The Indiana Supreme Court, not me, edited the post so the “expletives are identified symbolically.” I think we get the idea, though, even with the edits. (I do like how A.B. refers to him as “Mr.” Gobert in that last one.)
As a result, delinquency proceedings were initiated against A.B. The . . . petition . . . charged A.B. with nine counts. Three . . . were dismissed at the fact-finding hearing. The remaining counts each allege conduct by A.B., a minor, that if committed by an adult would constitute Harassment . . . . The various surviving counts allege her use of a computer network to harass Mr. Gobert. Counts I and V allege that A.B. used a computer network to transmit the following:
`hey you piece of greencastle s* *t. what the f* *k do you think of me know (sic) that you cant [sic] control me? huh? ha ha ha guess what ill [sic] wear my f* *king piercings all day long and to school and you cant [sic] do s* *t about it.! ha ha f* *king ha! stupid b* *tard!
Counts III and VII each allege Harassment based on A.B.'s transmission of “die ... gobert ... die;” and Counts IV and VIII are based on A.B.'s transmission of `F* *K MR. GOBERT AND GC SCHOOLS!’
Before we get into the legal issues, I want to note something: what happened here is an example of what has happened in lots of schools in at least several countries. When I was I school, the only ways we could take out our frustrations with our teachers was by drawing obnoxious cartoons and making up scandalous stories about them. Whatever we did had a very limited circulation, and so had a very limited impact. Cyberspace lets anybody with a computer and Internet access become a “publisher,” so students can be a lot more creative in the ways they take out their frustrations and their expressions of frustration can enjoy a very wide circulation, especially if they’re interesting.
Now, let’s talk harassment. Here’s the statute A.B. was charged with violating:
A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication . . . uses a computer network . . . or other form of electronic communication to communicate with a person or transmit an obscene message or indecent or profane words to a person; commits harassment, a Class B misdemeanor.Indiana Code § 35-45-2-2(a)(4). A.B. was adjudicated delinquent for violating the statute and appealed. Since, as the Indiana Supreme Court noted, “in juvenile delinquency adjudication proceedings, the State must prove every element of the offense beyond a reasonable doubt”, we are essentially dealing with a criminal case.
If you look at the Indiana harassment statute, you will see that its structure is analogous to that of a “threat” statute. That is, it requires that the perpetrator (i) have sent harassing communications to the victim (ii) with the intent to harass that that specific person and (iii) for no legitimate purpose. That has traditionally been how harassers have conducted themselves; they have called, emailed and otherwise communicated directly with their victim for the deliberate purpose of annoying and/or alarming that person.
As the Indiana Supreme Court pointed out, what A.B. did doesn’t fit within the elements of the statute:
The allegedly harassing communications by A.B. identified in Counts I, III, V, and VII were postings by A.B. on her friend's MySpace `private profile’ site. This . . . site, . . . could not be seen by the general public except for those . . . accepted as `friends’ by the creator of the `profile.’. . . Mr. Gobert was able to view it only because R.B., the student who created the `profile,’ . . .authorized him to access the `profile’ during his investigation. . . . [T[here was no evidence . . . A.B. expected that Mr. Gobert would see or learn about A.B.'s messages. . . .The court therefore held that the prosecution had failed to prove beyond a reasonable doubt that A.B. sent the communications with the intent to harass Mr. Gobert and for no legitimate purpose. I think the court is absolutely correct. I also think the evidence failed to prove another element, the first of the three I noted above: the statute requires that the harassing communication be sent TO the victim. A.B. did not do that. She merely posted them online, where they COULD be seen by the victim.
The analysis differs as to Counts IV and VIII, which refer to A.B .'s remarks on her MySpace `group’ page. Because this site was publicly accessible, it may be reasonably inferred that A.B. had a subjective expectation that her words would likely reach Mr. Gobert. This alone, however, does not establish the intent element specified in the Harassment statute. . . .While A.B. titled her `group’ page with the vulgar expletive, her own posting on the page elaborated as follows:
[R.B.] made a harmless joke profile for Mr. Gobert. and [sic] some retarded b* *ch printed it out and took it to the office. [R.B .] is expelled, has to go to court, might have to go to girl [sic] school, and has to take the 8th grade over again! that's [sic] just from the school, her paretns [sic] have grounded her, and took [sic] her computer, she cant [sic] be online untill [sic] 2007! GMS is full of over reacting idiots!
Other than the title and this posting on A.B.'s `group’ page, there was no other evidence relevant to the issue of her intent as to Counts IV and VIII. And the content of the posting presents strong evidence that A.B. intended her `group’ page as legitimate communication of her anger and criticism of the disciplinary action of Mr. Gobert and the Greencastle Middle School against her friend. . .
As I wrote in an earlier post, the Sixth Circuit Court of Appeals threw out threat charges against a Michigan college student some years ago for essentially the same reason: Jake Baker was charged with threatening a classmate by posting violent fantasies online, fantasies in which he raped and killed her. The Sixth Circuit said it wasn’t a threat because Baker did not send the communications directly to her. Seems to me we have the same problem here, too.