In February 2015, two young men dared Parker Drake to jump into a frigid ocean for virtual entertainment. Parker, who doctors diagnosed as having autism spectrum disorder, first “met” the men through twitter. After several exchanges the young men took Parker to the ocean, “for laughs” dared him to jump in and then videotaped Parker’s struggle to return to shore. The men published the video on Facebook, you could hear them laugh as Parker battled the waves.
Upon discovering the tape, Manasquan, NJ Municipal Court officials charged the men with “endangering the welfare of an incompetent person.” The problem, however, is that because 19 year old Parker voluntarily jumped into the ocean, the men had not, in fact, committed a crime.
The case is another example of a moral wrong failing to translate into a legal wrong. Sadly, laws do not exist to punish those who use social media for bullying; just consider the events that prompted Tyler Clementi to jump off the George Washington Bridge. With this unfortunate event, Parker’s mother joins the rank of parents who fail to see justice in the courts for reprehensible harms committed against their children.
The response to the Parker Drake event, much like the response to many social media wrongs for which the criminal law offers no retribution, is both outrage and frustration. Parker’s mother is seeking justice in the civil courts. The politicians have weighed in too. Just last week several New Jersey lawmakers announced their intention to draft a law aimed atpunishing individuals who victimized disabled persons.
The law is not well suited for punishment of harms like the one that happened to Parker. Our Constitution often stands as a roadblock between justice for social media wrongs and the right to voice opinions and ideas. First Amendment concerns prevent punishing many types of speech, particularly outside of the classroom. And then there are issues of “void for vagueness.” A law that punishes those who exploit the developmentally disabled leaves open to interpretation what constitutes “exploitation.” (and I suspect defendants charged in a crime such as this might try to escape punishment by challenging whether his or her “victim” was developmentally disabled.”)
I am interested in seeing the legislation New Jersey law makers propose. My hope is that they can walk the fine line between justice and free speech. The lawyer in me, however, suspects that the bill will never make it to the Governor’s desk; as we have seen too many times before, regulating social media bullying in the courts is a nearly impossible task.