Attorney in First Missouri Felony Cyberbullying Prosecution Claims New Law Is Unconstitutional

August 24, 2009 by David S. Seltzer

As a South Florida cyber crime criminal defense lawyer, I have watched the fallout from the Lori Drew case with interest. Drew is the St. Louis woman who was prosecuted for making a false MySpace account and pretending to be a teenaged boy in order to spy on her 13-year-old neighbor, Megan Meier. Meier committed suicide after “Josh,” the imaginary teenaged boy, said cruel things to her. Drew’s actions were not illegal in Missouri at the time, but public outrage helped to pass a law making “cyberbullying” a felony in Missouri and a crime in several other states. (As I have noted on this blog before, Drew was later convicted of violating the MySpace terms of service, although she is likely to be acquitted.)

Recently, prosecutors in Missouri had a chance to test the new cyberbullying law. Elizabeth Thrasher, 40, of St. Peters, Missouri, is accused of harassing a 17-year-old girl who is the daughter of the woman Thrasher’s ex-husband is dating. According to the St. Louis Post-Dispatch, Thrasher was fighting with the mother of the teenager, which prompted the teen to send Thrasher a MySpace message telling her to grow up. Thrasher allegedly responded by creating a personal advertisement on the “Casual Encounters” section of Craigslist in the teenager’s name, listing her name, picture and several ways to contact her. Not surprisingly, the girl received a deluge of messages from strange men, including messages containing pornography.

The Post-Dispatch said this is the first felony prosecution under the cyberbullying law, although several misdemeanor cases have been filed. According to MediaPost News, Thrasher’s attorney is fighting the charge with the claim that it’s unconstitutional. Defense lawyer Mike Kielty said the law should be thrown out because it criminalizes behavior that is not a crime offline. He acknowledged that Thrasher’s behavior was “inappropriate and a bad idea,” but characterized his client’s behavior as similar to writing a name and phone number on a bathroom wall suggesting that men call “for a good time” -- which is not a crime in Missouri. To the Post-Dispatch, he said that the statute was poorly written and criminalized what was essentially a practical joke.

As a Miami-Dade cyber crime criminal defense lawyer, I’m not so sure her conduct would be legal in Florida, even if it was offline. Thrasher’s intent may have been to commit a practical joke, but her actions essentially offered a minor for sexual purposes. There are multiple federal and Florida state laws that might apply, including procuring a person under 18 for prostitution, cyberstalking and lewd and lascivious offenses on a minor.

Whether the Missouri cyberbullying law is unconstitutional is another matter, and one that could have important effects on similar laws in other states. According to the Post-Dispatch, the law prohibits adults from making threats and communications that could cause emotional distress to someone under 18. The MediaPost article quoted an Internet law expert who suggested that Kielty was wrong to think a law is unconstitutional just because the same behavior offline is legal, and pointed out at least one such law. As a Fort Lauderdale cyber crime criminal defense attorney, I know that no such law has been challenged -- but the question is whether it could be. While I believe the law’s intent was good, the strong emotions surrounding the Lori Drew case may have created unintended consequences that do a disservice to individual liberty.