Combating sexual predators online and conflicts with free speech: an analysis of legislative approaches in New Jersey.

• Author: Klein, Terel

1. INTRODUCTION

   Assemblymen Peter Biondi, during the 2006-2007 session of the New Jersey Assembly, and Senator Kevin O'Toole, during the 2008-2009 session of the New Jersey Senate, each introduced bills related to the posting of false or defamatory information on the Intemet. (1) While Biondi's bill targeted "operators of interactive computer services" and "Internet service providers" for civil liability, (2) O'Toole's provided criminal liability for individuals who knowingly posted content for the purpose of harassment] Both of the bills were oriented toward erecting constraints on the posting of content on the Internet in New Jersey. Not surprisingly, neither bill sought to curb free speech. Instead, the bills were meant to confront the danger posed by unsupervised minors communicating with strangers online.

   The legislators were prompted by the story of a 12-year-old from Nutley, New Jersey. (4) In February of 2006, an unknown person posted a profile for Monirae Hickey on the popular social networking website MySpace.com that resulted in a barrage of unwanted phone calls. (5) The profile contained Hickey's name, cellphone number, a picture of "a provocatively dressed woman," and represented Hickey as a stripper. (6)

   Another incident that attracted the attention of legislators involved a 14-year-old girl from Roselle. (7) The girl, Judy Cajuste, was found strangled to death in a dumpster in Newark, possibly after meeting with an older man she met through MySpace. (8) It is incidents like these, made possible by the anonymity and accessibility of the Internet, that the introduced bills aim to prevent. And while the Hickey, Cajuste, and similar cases from around the country have attracted attention to the problem of online predators, (9) they do not entirely resemble the cases that have generated controversy over criminal libel laws and the Internet in the last ten years. Consequently, it is curious that Senator O'Toole has opted to target and deter this dangerous behavior through the mechanism of a statute that criminalizes the posting of false information about another individual on the Internet. (10)

   In order to understand this disconnect and properly analyze the propriety of the pending bill, it is useful to view the legislation within the context of existing regulations geared toward preventing similar behavior, the history of criminal libel, and the resurgence of criminal libel via the Internet. (11) To establish this context, this note will first examine the history of criminal libel in the United States prior to the ascendancy of the Interact. Next, it will look at the seeming resurgence of criminal libel by considering a number of recent Internet-related criminal libel cases. Finally, this note will contemplate the utility of the two New Jersey bills given the existence of other regulations that have endeavored to accomplish the same objective: protecting individuals (and children in particular) online.

2. A BRIEF HISTORY OF CRIMINAL LIBEL

   1. Criminal Libel in the United States

      Typically, when an incident occurs that gives rise to criminal libel charges, journalists offer their traditional commentary lamenting the antiquated statute's offensiveness to free speech and point to the fact that most states no longer have such laws. (12) While some scholars and journalists protest more vociferously than others, opposition to criminal libel laws is the norm. Gregory C. Lisby concisely articulates the arguments against criminal libel:

      [Criminal libel] is contrary to the rights guaranteed by the First Amendment to the Constitution, it is inimical to the free expression of ideas in the United States, and it is antithetical to any and every form of representative government for the following reasons: First, it is a historical "throwback to pre-Magna Carta England and to the common-law principles the monarchy used to justify keeping its heel on critics' necks" and, therefore, contrary to the principles of free expression enshrined in the First Amendment. Second, its authoritarian philosophical and political foundations cannot be reconciled with the democratic, libertarian ideals on which America was founded. Third, it functionally serves the same purpose as civil libel, as American courts have now allowed truth to be a defense for the crime. Fourth, its "breach of the peace" rationale has been discarded by American courts, making its purpose no different from that of civil libel. Fifth, the American experience with criminal libel and its concomitant abuse of prosecutorial discretion is humiliating, embarrassing, shameful and reprehensible. (13) Lisby's critique of criminal libel is likely one of the more vitriolic, but it nonetheless largely captures the evolution of thought regarding criminal libel in American jurisprudential and legislative history.

      This evolution culminated with the Supreme Court opinion in the seminal criminal libel case Garrison v. Louisiana (14) and is discussed thoroughly within that opinion. In Garrison, the Court built on its opinion in New York Times Co. v. Sullivan, (15) striking down a Louisiana criminal defamation statute and holding that false statements about public officials could only be punished if "made with knowledge of their falsity or in reckless disregard of whether they are true or false." (16) In arriving at their decision, the Court noted that with regard to the criticism of public officials, there was no "merit in the argument that criminal libel statutes serve interests distinct from those secured by civil libel laws," (17) and that in the past, even when criminal libel was seen as a device to prevent breaches of the peace, there was a "preference for the civil remedy." (18) Additionally, the Court reasoned that "©hanging mores and the virtual disappearance of criminal libel prosecutions" (19) supported the notion that maintenance of the peace no longer required criminal prosecution for private defamation and that constitutional principles "preclude[d] attaching adverse consequences to any except the knowing or reckless falsehood." (20) In striking down the Louisiana statute, the Court made clear its conception of criminal libel as redundant and anachronistic. Nonetheless, it unmistakably stopped short of declaring criminal libel altogether unconstitutional.

      The Court's establishment of an actual malice requirement resulted in the striking down or repealing of criminal libel statutes in a number of states. (21) The failure to replace these statutes with more carefully tailored ones is indicative, along with the diminishing number of criminal libel prosecutions generally, (22) of a growing appreciation for criminal libel as obsolete. Despite the appearance of a growing consensus on the anachronistic nature of criminal libel, which was spurred by the decision in Garrison, (23) it bears emphasizing that the decision also offered a rationale for the utility of criminal libel in its dicta. (24)

      Though speaking to comments made against public officials, Justice Brennan's majority opinion noted that "[t]he use of "calculated falsehood" (25) was a different question than that reached by the Court's holding, and "'of such slight social value as a step to truth that any benefit that may be derived is clearly outweighed by the social interest in order and morality.'" (26) It is this sentiment that the proposed New Jersey bills draw upon. The behavior targeted by the prospective legislation lends credence to this viewpoint, because it is difficult to conceive of the social value of allowing individuals to post information on the Internet that elicits sexual advances or other unwanted communications toward unsupervised and naive children, or other similarly vulnerable individuals. Moreover, the only manner in which such communications can be characterized as a "step to truth" would be in their ability to demonstrate the debasement of adult Internet users through evidence of their pursuit of illegal, underage companionship. The type of speech contemplated by Senator O'Toole's bill appears valuable only in its capacity to disturb "order and morality." (27) Accordingly, despite the numerous arguments and the historical tide rising against criminal libel, there are tangible reasons to consider criminalizing behavior that constitutes a potential threat to the security of the community: the posting of false information about others on the Internet.

   2. The Resurgence of Criminal Libel

      While recent statistical analysis is inconclusive about the prevalence of criminal libel cases, (28) including the number of cases related to the Internet, media coverage (29) suggests that Internet-related criminal libel cases are becoming increasingly common. Intuitively, the Internet seems a fertile breeding ground for criminal libel cases, primarily due to the decentralized and anonymous nature of the Internet. In addition, the attitude that "'anything goes' on the Internet could lead Internet speakers to more freely engage in speech that threatens or incites lawless action, and that speech could be more widely and quickly received." (30) Furthermore, even if these characteristics do not provide the impetus for people to engage in fringe speech, the Internet nonetheless provides a forum for such speech to appear, be recorded, and be disseminated to a wide audience--elements useful to the filing of, or investigation into, criminal libel charges. In the past few years, a number of incidents, though not reaching the level of statutory challenges, have illustrated the Internet's role in criminal libel cases and have provided an indication as to the type of harm that can be caused by the posting of false information about individuals online.

      One such case occurred in 1998, in which a rape and abuse shelter in Florida was barraged by calls from "erotic thrill-seekers" who found the shelter's phone number on a web site advertising lesbian phone sex. (31) The State Attorney's Office subpoenaed...