Intellectual Property Law

Hard Cases and Bad Law in US v. Drew

By Tim Armstrong, Derek Bambauer, and William McGeveran.

I joined a group of law professors and public-interest groups that filed an amicus brief Friday in the case of United States v. Drew. That criminal case is a repercussion from the horrible and high-profile cyberbullying conducted through MySpace against a small-town Missouri teenager named Megan Meier, who committed suicide in response. Lori Drew, a 48-year-old neighborhood mother, had at least some role (details are contested) in the creation of a hoax profile of an imaginary boy who pretended he liked Meier and then abruptly turned on her. This nasty bullying is so pointlessly mean it gives you goose bumps. Drew was later indicted under the federal Computer Fraud and Abuse Act (CFAA).

The amicus brief, however, calls for the indictment to be dismissed.

Why? For that, I turn to that most wise and quotable of Supreme Court justices, Oliver Wendell Holmes:

Great cases, like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. These immediate interests exercise a kind of hydraulic pressure which makes what previously was clear seem doubtful, and before which even well settled principles of law will bend.

Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Holmes, J., dissenting)

Megan Meier’s suicide is just such a hard case. I understand and share the desire to hold someone accountable for behavior toward her, especially an adult who participated. I can’t entirely believe I am aiding the defense, in however small a way. But in its efforts to satisfy the desire for accountability, the government proposes to distort the CFAA — to bend well settled principles, in Holmes’ phrase — in a way that could apply to future cases. In other words, to make bad law.

Full post as published by Info/Law on August 04, 2008 (boomark / email).