Catching up on the news

When last we dropped in on the Lori Drew case (here), the judge had granted her post-trial Rule 29 motion. Sort of.

He'd declared that he intended to grant it unless he changed his mind. It wasn't exactly a binding commitment, but you always want to think carefully about how you deal with Lori Drew. If the allegations were in fact true, after all, her behavior was unspeakably horrid and resulted in . . . . Here's how the judge described it (record citations and other legalesque stuff omitted):

Drew, a resident of O’Fallon, Missouri, entered into a conspiracy in which its members agreed to intentionally access a computer used in interstate commerce without (and/or in excess of) authorization in order to obtain information for the purpose of committing the tortious act of intentional infliction of emotional distress3 upon “M.T.M.,” subsequently identified as Megan Meier. Megan was a 13 year old girl living in O’Fallon who had been a classmate of Drew’s daughter Sarah. Pursuant to the conspiracy, on or about September 20, 2006, the conspirators registered and set up a profile for a fictitious 16 year old male juvenile named “Josh Evans” on the www.MySpace.com website, and posted a photograph of a boy without that boy’s knowledge or consent. Such conduct violated MySpace’s terms of service. The conspirators contacted Megan through the MySpace network (on which she had her own profile) using the Josh Evans pseudonym and began to flirt with her over a number of days. Id. On or about October 7, 2006, the conspirators had “Josh” inform Megan that he was moving away. On or about October 16, 2006, the conspirators had “Josh” tell Megan that he no longer liked her and that “the world would be a better place without her in it.” Later on that same day, after learning that Megan had killed herself, Drew caused the Josh Evans MySpace account to be deleted.

By all accounts, Drew showed neither remorse nor regret, at Megan's suicide. Nasty woman.

Anyway, the jury found her not guilty of the felony conspiracy charge but found that she was guilty of violating the MySpace terms of service. In time, the judge (the Honorable George Wu) finalized his rejection of the jury verdict. (Opinion available here.) Good for him.

He recognized that if violation of terms of service can be a crime, then crimes will be defined by website owners rather than legislators. Alternatively, if it's the violation that's the crime, then almost anything can be and there's neither meaningful limitation on what's being criminalized nor meaningful notice of what one can and cannot lawfully do. Right result in the face of popular hostility.

Of course, we know that the good men and women of the U.S. Attorney's offices don't believe that they're ever supposed to lose. So, and thanks to The Volokh Conspiracy for pointing it out, they've filed a notice of appeal. (It' a quirk in the law of double jeopardy that as long as the jury returned a verdict of guilty before the judge enters an acquittal, the government can appeal and you can be convicted after being acquitted.)

It's not clear, at this point, that the appeal will go forward. That's a decision that will be made at the upper levels of the Justice Department.

I await developments.

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Two other quick items of note.

I've previously written about Rachel Cannon, the AUSA in Chicago who got caught presenting false testimony in a case and then, when called on the carpet by the judge, declared that the lies were true. Mike at Crimes & Federalism caught the follow-up story. The Government, once again refusing to believe it could lose or even be lambasted, moved for reconsideraiton and offered this defense.

The prosecutors from U.S. Attorney Patrick Fitzgerald's office on Sept. 18 filed a motion for reconsideration in the case, telling U.S. District Judge Joan Lefkow that the government witness who she determined gave false testimony at the trial actually "was truthful, but inaccurate."

While you try to digest that bit of Orwellian double speak, you can be comforted to know that the First Amendment lives in the Fourth Circuit.

On Thursday, that court reversed a five million dollar verdict against Fred Phelps, a couple of his family members, and his Westboro Baptist Church. The family Phelps are the ones who go around to funerals of soldiers killed in Iraq and Afghanistan and cheer the killing as God's retribution on the United States for not being sufficiently intolerant of homosexuality.

Fred and his folks did their repulsive thing at the Maryland funeral of Matthew Snyder who died tragically in Iraq. They appeared with signs saying

"America is Doomed," "God Hates the USA/Thank God for 9/11," "Pope in Hell," "Fag Troops," "Semper Fi Fags," "Thank God for Dead Soldiers," "Don’t Pray for the USA," "Thank God for IEDs," "Priests Rape Boys," and "God Hates Fags."

The Snyder's sued and got a that five million dollar judgment. The Fourth Circuit rejected the claim recognizing that however repulsive and misguided their speech, the First Amendment protects it. That's exactly right.

The Snyder family has announced it plans to appeal. (AP story here.)

(In the interests of full disclosure, I should note that I represented Shirley Phelps-Roper in a partially successful challenge to an Ohio law specifically enacted to prevent the family from coming here to protest at military funerals.)