“There Oughta be a Law”

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.




Another day, another proposed piece of social media legislation

This one comes from the great state of Virginia.  Virginia lawmakers are considering a bill to permit parental access to a deceased child’s digital accounts. The bill defines digital accounts as “blogging, e-mail, multimedia, personal, social networking, and other online accounts..”  The bill mirrors legislation other jurisdictions are considering, which are designed to grant survivors the benefits of a decedent’s social media estate.  The Virginia Law, however, differs in that it is limited to minor decedents, most of whose estates may not have the financial value of adults who have cultivated a profitable empire through blogging, twitter or the like.  Though not expressely stated, one can assume that Virgnia lawmakers, in adopting the law, are hoping to provide parents with information of value concerning instances of “cyber-bullying”  or unintended consequence of social interaction.  Minors can circumvent the measure through through language in a will or other trust instrument.

Of particular note is the drafting of the bill, which  leaves room for future, anticipated or perhaps even unforeseeable expansion of social media, by including in its definition of digital accounts, “other on-line accounts or comparable items as technology develops.”  The language provides lawmakers with a future-catchall and will potentially guard against the all to common problem of laws playing catch-up with rapid technological advances.  One has to wonder, however, if such broad language could survive a “void for vagueness” challenge.

More States Consider Social Media Privacy Bills

The concept of legislatively limiting employer access to employee social media traffic is gaining traction.  Legislators in Georgia, Montana and North Dakota are considering bills similar to the one already adopted by the Illinois legislature.  The bills would restrict employers from researching social media sights as a means of gaining additional insights about employees and/or employee candidates.  More information about the potential laws is available here.

Are these bills innovative or are they just a natural extension of the HR workplace rules that prohibit, say, asking a candidate is she is pregnant?

France to prohibit the use of #hashtags

It amazing to see just how far the French Government is willing to go to prevent Anglicization of its country. A French governmental commission, charged with assuring that Anglican words and traditions don’t infiltrate its boarders, has directed that all official French government legislation and correspondence use the word mot-diese, (meaning sharp word) in place of the familiar hashtag.   A few years back the French government was successful in changing the word email to courriel, and so there is no reason to think that the new word for hashtag might just catch on beyond the governmental mandate.  Interesting to see just how far a country can go in mandating language, without the cloak of the Constitution as a bar.