1 ? Introduction
This report will review an article from the ?Rutgers Computer & Technology Law Journal 34.2? (Summer 2008). The article being reviewed is ?Combatting Sexual Predators online and the conflicts with free speech: an analysis of legislative approaches in New Jersey?. It can be found on pages 366 through to 395 and was written by Terel Klein.
This report will identify and discuss the main themes and sub themes in the article to determine if the author has produced accurate evidence to support his conclusion. The way in which the information was gathered to formulate the conclusion and its relevance to the articles title will be analysed to see if the themes within the article are reflected by the title. The article will also be reviewed to see how credible it is and the author?s credibility will be reviewed to see if the author has the experience and expertise to write an article on the subject.
2 - Article Summary & Review
2.1 ? Article Section 1 - Introduction
The article ?Combating Sexual Predators online and the conflicts with free speech: an analysis of legislative approaches in New Jersey? main purpose is to discuss two bills which were introduced in New Jersey and ?related to the posting of false or defamatory information on the internet? (KLEIN, Terel, Summer 2008). The first bill (New Jersey Assembly Bill No. 1327, 2006) was introduced by ?Assemblymen Peter Biondi, during the 2006-2007 session of the New Jersey Assembly?, (KLEIN, Terel, Summer 2008) and this bill was designed to ?make certain operators of interactive computer services and Internet service providers liable to persons injured by false or defamatory messages posted on public forum websites? (Assembly Bill No.1327 212th Legislature, 2006). The second bill (New Jersey Senate Bill No. 580, 2008) was introduced by ?Senator Kevin O?Toole, during the 2008-2009 session of the New Jersey Senate? (KLEIN, Terel, Summer 2008) and this bill ?Prohibits posting of certain personal information on the Internet or misrepresentation of identity on the internet for the purpose of harassment of a minor child? (Senate Bill No. 580 213th Legislature, 2008).
The author states in the article that both bills are aimed to not curb the freedom of speech but to help stop the dangers posed by unsupervised minors from being harassed or groomed by strangers online. He uses two cases which are believed to be the cases which promoted the legislators to produce the new bills. The first case involved a 12-year-old who had their personal details taken and a profile on the social networking site MySpace.com was created. The profile resulted in the 12-year-old receiving a large volume of unwanted phone calls. The MySpace profile contained such information as the person?s name, mobile number, photograph of a ?provocatively dressed woman? and represented the 12-year-old to appear as a stripper. The second case involved a 14-year-old girl. In this case the author speaks about how the girl was strangled to death and found in a dumpster, and it was believed this occurred after meeting with an older man she had met through MySpace.
Already from reading this it gives the first impression that myspace.com or social networks as a whole play a large role in the reasons behind these bills, or at least in the author?s opinion. The author also believes that it is strange that Senator O?Toole chooses a bill that prevents posting of false information and makes it a criminal offence, rather than to take action on what people do with the information, such as the phone calls in the 12-year-old?s case (KLEIN, Terel, Summer 2008).
2.2 ? Article Section 2 - A Brief History of Criminal Libel
2.2.1 ? Criminal Libel in the United States
The two bills which are being examined by the author are both Criminal Libel and so this leads him to start by discussing ?A Brief History of Criminal Libel?. This section is broken down into two sections. The first section is ?Criminal Libel in the United States?. During this section he looks at when an incident occurs that may be criminal, journalists look back and comment on out of date laws. He looks back on already existing laws geared towards preventing similar behaviour and how technology may affect them, and if the new bills are required. He states that some journalists protest in a large manor compared to others and argue that there should be no action taken against those who post the information. With this in mind he looks at the opinions of scholars and journalists such as Gregory C. Lisby and his critique on ?Criminal libel?. The author focus?s a large chunk of this section on a criminal libel case Jim Garrison V. The State Of Louisiana. This case was based on a Mr Garrison making defamatory statements against the judges of the Criminal District Court of the Orleans Parish (379 U.S. 64 - Garrison v. State of Louisiana). The author summarises the case and states that only deliberate action to discredit or harm someone can be punished, and in this case, Mr Garrison was voicing his opinion which would fall under freedom of speech. By punishing Mr Garrison, this would have therefore become unconstitutional as it breaks the first amendment which is freedom of speech, so the case was dropped; however, the court did not rule this case out to be unconstitutional. If they had stated that the case was unconstitutional, it would have meant any other case punished for the same offence may become re-opened. The author continues to discuss how old laws are not consistent with new technology, so those committing criminal offences are getting away with it and there are fewer convictions. He goes on to say that although it appears that there are a growing number of people agreeing on how criminal libel is behind in times, he emphasises that if something is said by someone it is believed to be true because it is said by someone who is credible or knows what they are talking about or if they have a large reputation. The author also emphasises in this section that Gregory C. Lisby critique on ?Criminal libel? is worded harshly (KLEIN, Terel, Summer 2008), but captures how thought of deeper meaning of law has grown and more people think about it and are made aware. It shows that he wants to try and give the impression that it is not just him that has a strong view against criminal libel statutes.
Finally in this section the author discusses how two bills draw upon a sentiment, and he believes that the target prospective legislation gives the mental attitude that if something is believable it should be accepted as being true. Because it is difficult to develop an idea that people will make the decision to post information on the internet that may bring out or provoke sexual advances or communication from someone that is not wanted, towards na?ve and/or unsupervised individuals, be them children or not.
The author believes that Senator O?Toole?s bill means the type of speech contemplated only has the ability to disturb ?order and morality?. This moves the author onto voicing his opinion that Senator O?Toole wants to make what someone says a criminal act, but that would then be breaking the First Amendment and thereby preventing freedom of speech, which is unconstitutional. This would imply that the author has a strong view against Senator O?Toole?s bill. And it could be said this early on in the paper, that the author already has a strong view against criminal libel and would prefer civil libel.
2.2.1 ? The Resurgence of Criminal Libel
9This section of the article the author discusses the increase in interest and activity in criminal libel. He begins by talking about how there is no conclusive evidence on the total number of criminal libel cases, including cases related to the internet. He uses another article by an Edward L .Carter who discusses the boundaries of free speech on the internet. It is noticeable from looking at both this article, and the article written by Edward L. Carter that they both share a very similar article layout and review of the history on criminal libel to voice their opinions. The author of this article uses a wide variety of reference from Carters article, including how uses reference 30 of his article which refers to Edward L. Carter?s article. here, the author voices his opinion using this reference to support it by pointing out that media coverage is suggesting that internet-related criminal libel cases are increasingly becoming common (CARTER, Edward L., 2004-2005). He also voices his opinion that the internet seems to be a ?fertile breeding ground for criminal libel cases? (KLEIN, Terel, Summer 2008) because of the ability to become anonymous so that anyone can say anything and no-one knows who is saying it. It is clear to say the author believes that the internet makes it easier for people to produce threatening behaviour and have it viewed and received by a much larger audience in a much quicker time frame. Again the author uses Edward L. Carter?s article to support his opinion. He does not appear to use alternative sources which may imply that he is making his judgement based on this article only.
To support the first paragraph of this section and what has been summarized and reviewed above the author refers back to six past cases. He also uses these cases to support his statement on the internet?s role in criminal libel cases and how it provided an indication as to the type of harm that can be caused by the posting of false information about individuals on the internet. Each case that the author discusses is shown to have a form of defamatory abuse via the internet and of posting of information. He uses these cases to again voice his opinion that if something is said on the internet it is blown out of proportion due to the larger audience that it is seen by. A prime example of this would be the case in 1999, where a woman commented online that a police officer had engaged in an act behind a restaurant and she was charged with criminal defamation. The author says ?Again, the comment at issue was one that would likely have been forgotten if made in passing, but thanks to the internet, it was immortalized and drew wide attention? (KLEIN, Terel, Summer 2008).
All of the cases that are discussed in this section all relate to the topic in hand, however, it is noticeable that this article was written in 2008, but all of the cases other than one, are all dated 1998-2000. Earlier in the article, he discussed how technology is forever developing and new laws need to be put in place to keep up, but all of the cases seem to be rather out of date and out of context, as the two bills being discussed are targeting what is done and said online at the time of them being written. Why does the author only discuss one case during the time of 2006? And why is it that this case seems to be far more extreme than the others? The case in 2006 shows that a man is sentenced to twenty-three years in prison for twenty-six felony counts which include criminal libel. The felonies do not appear to even relate to this articles title and extremeness of this case does not appear to relate to speech on the internet, only the part where the man creates a website in a professor?s name.
There is also a pattern occurring throughout the report. Looking back at the introduction to the report where the author mentions that the 2 cases involving a 12-year-old and a 14-year-old encouraged Biondi and O?Toole to introduce their bills, both cases related to MySpace.com. Again, in this section of the report, the author mentions MySpace.com as one of his case examples. During the time of these cases however, there are also other social networks such as Facebook.com and Bebo.com, yet no cases he mentions relate to these social networking sites. It appears as though he has a bias opinion towards either myspace.com or social networks as a whole, and uses myspace.com as an example to voice that view.
Using these cases he comes to the conclusion that people deserve some form of protection. So he does believe it is a good idea to implement some form of law. However as said before, it appears as though he has a strong opinion against a criminal libel bill, and would much prefer cases such as these to be dealt with through civil libel. He also believes some of this behaviour which isn?t so serious to just become ignored rather than ?dragged into a courtroom?. He continues to discuss social networks, which again supports the suggestion that he has some form of bias opinion and he believes that some form of resolution is needed to reduce the possible dangers.
2.3 ? Article Section 3 - Analysing the New Jersey Bills
This section of the article takes a deeper look at the two bills in question but before doing so, the author takes a look into criminal libel statutes from other states. He uses this to form an opinion on how the bills in question may fair out and how they may make an impact on the issues they are attempting to address.
2.3.1 ? Recent Challenges to Criminal Libel Statutes
The author makes a point that at the time of writing the paper, there are only twenty states that still have some variety of criminal libel statutes in affect. However, this article was written in summer 2008. The source of which the author got this information from was in August 2006, which makes his statement that ?currently, twenty states still have some variety of criminal libel statute(s) in effect? false. After researching further online, an article dated April 2007 states ?Sixteen states have a criminal libel statute? (JARED TAYLOR, 2007) which is dated one year prior to this article being written.
This section takes two of the states, Utah and Colorado and looks at cases which have been challenged in court in these states. The first case is based in Utah and is dated back to 2000. Again, this seems to become a little strange that the author mentions at the start of this passage that he will focus on two states that have shown the most recent activity, but he then picks a case which is dated eight years before the time he is writing this paper. This case also shows how the criminal libel statute that was in place was ?struck down by the Supreme Court of Utah? (KLEIN, Terel, Summer 2008). However he doesn?t seem to mention that the statute that was used in this case, was struck down in 2002, two years after the Ian Lake case began (STUDENT PRESS LAW CENTER, 2002) and in 2007 a new bill (S.B 86) was introduced which repealed libel and slander provisions (UTAH STATE LEGISLATURE, 2007). This means the sections of the bills that made it unconstitutional was removed. It was believed that original statute was overboard, and he then refers back to the Garrison V Louisiana case which also had a very similar outcome. The author however makes a massive point again, just like he did with previous cases, that criminal charges were still brought, because what was said was said via the internet opening up to the eyes of a wider audience, and if it had been something said while in school, it would have been ignored.
Again the author uses the Utah case as another way to voice his opinion on criminal libel statutes. It is very clear by this point in the article that the author already has a bias opinion towards criminal libel. He only appears to drag out cases where the case is found to be unconstitutional.
The second case in the state of Colorado was in 2004, and was in regards to a man who posted ?an altered photograph? (KLEIN, Terel, Summer 2008), which contained defamatory text about a professor. The man?s computer was seized by the police. But the case ended very quickly, after the man took action and had the ?American Civil Liberties Union? sue the Colorado Attorney. However, police did not ever charge the man with criminal libel statute and so the man?s challenge against the District court was dismissed because he was unable to challenge it when he had not been charged.
The authors finalises this section by mentioning that although the Utah bill was struck down, it does not mean in any way that the bills that this article are about will end up with the same fate. He believes that the new bills for New Jersey would have considered all of what has happened in states such as Utah and any small problem that may form them the become unconstitutional, as this is an issue that requires very careful work to ensure a bill is produced that meets all requirements possible without breaking the freedom of speech. He also questions whether a criminal libel law that is constitutional is even possible to meet the requirements they are trying to get it to meet. He uses this to refer back to 14-year-old girl case he mentioned in the introduction, which encourages the idea of these bills. He questions that would the man tempting the young girl to meet have been punished under the already existing New Jersey statute if contained an actual malice requirement, which gives the impression that the author thinks maybe current statutes should be considered to be amended? Rather than new bills implemented. His view seems to imply that in cases where someone who wasn?t convicted on the old statutes, could have been convicted if they were amended. He makes the point about O?Toole?s bill that if this is the case, is there any point in passing O?Toole?s bill.
The author only appears to have a section on ?Recent Challenges to Criminal Libel Statutes?, which gives the impression he is only looking for the bad points on criminal libel. Neither case he speaks about in this section is on cases that were challenged but then the challenges were overcalled. This appears to give the impression that the author wants to make it seem as though criminal libel statutes are a bad thing.
2.3.2 ? The Development of New Jersey Libel Law in the Internet Age
This section, the author talks about how at the time of the Garrison V. Louisiana case, New Jersey did not have any form of criminal libel statutes in place which dealt with the posting of defamatory information on the internet. The only form of criminal libel statute that was in place that had any form of relation to this was one that prevented ?broadcasting or televising defamatory statements or representation? (KLEIN, Terel, Summer 2008). There was only one other statute and it was declared unconstitutional. This brings the author to discuss how the courts of New Jersey have instead used the method of using common law, also known as case law, where the decisions of previous cases spur the decision to the case in hand. The issue with common law is with technology continuing to develop, there are more things that are said and different ways of being able to do it via the internet, so there are previous cases that may not relate in any way to a new case. He believes that it is because of the little development in law in New Jersey which has spurred the need for action to be taken, thus the 2 bills being introduced.
It is not until this passage of the whole article, where we begin to see the author bring up the subject on internet service providers and action being taken against the. This is what Assemblymen Peter Biondi?s bill is attempting to do. Here the author discusses how it is far easier in the real world to identify someone and sue them, or charge them with an offence. He uses a newspaper as an example, saying that if an article is made which has defamatory statements, it is easy to identify the author. But with the internet and message boards in particular, it is difficult to identify an anonymous poster without a larger investigation, which results in the message board owners them self to become under attack and possibly charged. He argues this point by using a case from New Jersey, Donato V. Moldow. In this case he shows how someone tried to accuse a website operator as being liable for content that someone else had posted on their website. However, this accusation backfired in court and the website operator was made immune from liability. This is because it fell under the Communications Decency Act. The author has not yet stated but the bill that Assemblymen Peter Biondi is trying to introduce was withdrawn. An alternative source has been acquired which shows an open letter urging withdrawal of the bill. In the letter it states ?we believe that free speech is a fundamental human right and that the right to speak anonymously is vital to our society? (ELECTRONIC FORNTIER FOUNDATION, 2006). If Assemblymen Peter Biondi?s bill had taken affect, it is clear that it would have curbed the right to free speech on the internet resulting in it becoming unconstitutional.
He furthers this subject on to discuss a case were a court stated that there should be a four prong test. these are that the person making accusations should first notify the anonymous poster and give them reasonable amount of time to file an opposition, the person making accusations must identify and show proof of the posts that the anonymous poster made, the person making accusations must provide enough evidence to form a strong case and finally determine if it is freedom of speech, or if it is too far and breaking the law of the current bills in place. The problem with the four prongs test is there is no scale to measure who has more right, the person making the accusations, or the person making the posts. The author comments on how the court tries to emphasis the third prong, that the person making the accusation about someone posting defamatory content must show and gather enough evidence to produce a strong case. He also makes a big point that despite the all of this, it still proves hard to get access and information to catch them via the internet.
2.3.3 ? Alternative Approaches to Protecting Children from Internet Speech
During this section of the article, the author is looking at alternatives to protecting children on the internet, he uses the case mentioned in the previous section to put his point across about civil libel, and says that criminal is pointless because it servers the same purpose as the civil remedy. But for the first time in this article, he also says the opposite appears to be true because civil may fail to provide a form of compensation and ?This is perhaps the best justification for the adoption of a criminal libel statute.? (KLEIN, Terel, Summer 2008). Even after making the statement that a criminal libel statute may be the best option, he then continues to say viable alternatives must be found and considered, which again to a previous observation made, shows he already has a formed opinion against criminal libel and appears to keep trying to find alternatives, or ague against it.
He begins by looking at the Communication Decency Act. As mentioned earlier in this report. He says that the he CDA constraints the civil liability of ISPs. The Communications Decency Act states "No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." (ELECTRONIC FRONTIER FOUNDATION). Unfortunately the CDA was also struck down by the Supreme Court and said to be an unconstitutional violation of the first amendment, and broke freedom of speech. He goes on to say, because of this, it resulted in the CDA no longer being able to protect young minors from online predators. What appears to me unclear is why the title of this article is referring to ?Sexual Predators? because not all defamatory statements made on message boards, or these two bills are sexual, some are just general harassment, or abuse. The author says that although the CDA allows room for criminal and state laws to potentially work side by side, if a law existed that protected children and did not reduce the immunity granted to ISP?s like the CDA, and did not violate the First Amendment right to posters online, then that would be the ideal method to protect children.
So the author believes that even with the CDA being an alternative to the bills, it is still not enough and there can still be something else out there.
The next alternative he moves onto to discuss is the Child Online Protection Act (COPA). This act was intended to prevent minors from viewing material online that they may find to be harmful. Unfortunately this Act was again one that was found to be ?unconstitutional for infringing on First Amendment rights.? (KLEIN, Terel, Summer 2008).
Due to both of these alternatives being unconstitutional he believes that to produce the best alternative it is better to look at already existing laws that can be used to produce new laws, using them as a template to work from. In this he refers to 18 U.S.C [Section] 2422 which has a basic template of a law that basically says someone can be charged for attempting to entice, coerce, persuade or induce an individual under the age of 18 and they can be punished for getting them to do something they should not be participating in. an example it uses is prostitution. Unfortunately they do not address legislation through criminal libel. But this is yet again, another hint that the author is trying to push his opinion of having an alternative that is not criminal libel, and possible use civil libel instead.
The author has identified that although this template did not directly address all of the issues that Senator O?Toole is trying to address, there was a case involving a man who performed a sexually implicit chat with a young girl and arranging to meet was successfully charged under this statute, and the man was arrested by police. The statute was also found to meet the first amendment and was not found to be ?unconstitutionally overboard or vague?. (KLEIN, Terel, Summer 2008). However what the author does not make a point, this statute is in regards to ?coercion and Enticement?. The police also coerced him by pretending to be a young girl, so does this not contradict the issue? Why can they get away with it, and not him? If they were not pretending to be a young girl, would he have tried to go after another? Or would it of never happened. If the police had not claimed to have been a 13 year old girl, the crime may not have even happened in the first place. The author also uses a second case which involved similar offences, and attempted to meet with an underage person to engage in sexual activity. The statute here was also up held and was not seen to be unconstitutional, even when the defendant attempted to appeal against.
Finally he ends this section of the report by discussing that 2422(b) can be identified as different from that of the statute in the garrison case which was struck down by the Supreme Court. The author emphasises that this is because the aim is to protect minors from involvement in sexual activity but unless the use of mailing connected to this activity, it is not punishable under the 2422(b) statute. Which means this is yet another statute that remains with a wide section left open allowing minors to fall victim to sexual predators online.
To conclude this section, it is clear that the author cannot seem to accept a criminal libel statute. Instead he seems to try and find as many alternatives as possible, and when there is no suitable alternative that can be used, he then begins to move back onto his opinion on civil libel statutes.
the last alternative, 2422(b) was the closet possible match there was which did not curb the freedom of speech, however it did not appear give maximum protection to minors.
2.4 ? Article Section 4 ? Conclusion
2.4.1 ? The Legal Sufficiency and Practical Efficacy of the New Jersey Bills
The author starts this section by discussing how social networks play a large role in the reasons behind Assemblymen Peter Biondi and Senator O?Toole?s bills. He mentions how the sites ?invite underage users to post information about themselves? (KLEIN, Terel, Summer 2008). He explains that websites such as myspace.com are working with the government officials to make it easier for minors to report sexual predators or suspicious activity. As the author begins to elaborate more on social networks and actions that the government officials take, he begins to agree that the bills that are being introduced have a purpose, however he disagrees on the methods and ways in which they are being introduced and also questions if they are even legally viable options.
He believes that if a challenge was made towards Assemblymen Peter Biondi?s bill, then it is highly unlikely that it would withstand, because if the ISP company was not able to provide such information as who the anonymous poster is or any information, there is no sufficient evidence to stand up in court, resulting in no ability to take action towards the person performing the defamatory actions. And as mentioned earlier in the report, ISP?s in the CDA have an immunity, which would mean this bill would conflict with the CDA?s ?spirit and policy? (KLEIN, Terel, Summer 2008). This is where the author begins to become quite harsh with his wording and states that the New Jersey Bill 1327 is an offence to the policy of the federal government, which is taken to be his own personal opinion and he does not reference any sources to indicate that there is any supporting evidence that this is true. Due to these findings it allows the author to finish with his final opinion on the legal sufficiency of the New Jersey Bill 1327 by saying that it is unlikely that the if there was a challenge in court that the statute win.
He appears to become very brief with Senator O?Toole?s bill in regards to the CDA as there does not seem to be any conflicts with already existing laws. Senate Bill 580 differs from the already existing laws such as 18 U.S.C. [section] 2422(b). As mentioned previously Senator O?Toole?s bill is targeting the ?posting of certain personal information on the internet and misrepresentation of identity on the internet for the purpose of harassment of a minor child? (Senate Bill No. 580 213th Legislature, 2008) is written in a way that resembles a criminal libel statute unlike 2422 which resembles a civil libel statute.
The author believes strongly that if the Senate Bill 580 was challenged in court it would withstand the challenge and would not be seen as unconstitutional, which would indicate that this bill would fall within the realms of acceptable, as it not only meets the needs to help protect minors online, it is also within the boundaries of freedom of speech. But he does point out that it ignores whether the information is true or not, which was discussed back at the beginning of the article. even if the information posted is true about the minor which has been posted, the defended could still be punished.
After reviewing both bills and their legal sufficiency the author still questions if either bills meets the requirements to fix the issue of minors becoming victims to sexual predators online. He believes that even though Senate Bill 580 address the issue in hand better out of the two bills, it still does not address the main concerns of which he believes is infact the problem. he feels that the bill does not address a much wider and bigger problem which is the targets themselves who post information about themselves online. As he has mentioned before when talking about social networks, he mentions that the targets themselves have the ability to share and post personal information, and although the government are trying to work hand in hand with the social networking companies to help report suspicious activity, they are not doing enough to prevent the target themselves from provoking or encouraging sexual predators to contact them without even knowing. He also believes that if the target or a friend of the target post false information about themselves, this also can provoke a sexual predator into becoming interested, and he feels that its activities such as this that also need to become addressed.
A prime example the author uses of information being published by someone else, and then someone seeing this information and making contact is the case right back at the start of the article with the 12-year-old boy. The author tries to make a point that the person who is trying to make communication should be the object of criminal law. This is shown in the statement he makes about the case at the beginning of the article, ?After all, while the classmate or prankster may be deserving of punishment, the real object of the criminal libel law is the person trying to create an opportunity to engage in illegal sexual conduct with a child in the position of hickey? (KLEIN, Terel, Summer 2008). When he says classmate or prankster, this can be seen as the person who took the 12-year-old?s (hickey) personal information and posted it online.
The author finally comes to conclude that he believes O?Toole?s bills is also stupid because even if information is not there, the predator is still going to be looking, and that it is stupid to punish someone posting information, be if the person or a someone who knows the person. Because he believes it should be the predator themselves who should be punished. He makes a strong point that although O?Toole?s bill may reduce the amount of opportunities for predators to find prey on the internet, it does not resolve nor prevent, nor punish the predator for making direct contact when they do find a vulnerable person or minor. The author again voices the opinion on ?private action? which would be commonly known as a civil libel case, when discussing how most information comes from the children themselves and not those looking to harm them.
2.4.2 ? Corollaries to the national Situation
Overall Review of Article
Now that the article has been summarized an understanding of the article and the author has been developed, this will be used to produce a review. Before progressing with the article review, it is important to know who the author is to understand what he has spoken about in his article is written from a knowledgeable background and to identify if both the author and the article are credible.
The author is?.
The main theme of this article is that the author considers criminal libel to be damaging to freedom of speech.
The author appears to voice his opinions and produce an article very similar to ?Outlaw speech on the Internet: examining the link between unique characteristics of online media and criminal libel prosecutions.?
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