Academic journal article Rutgers Computer & Technology Law Journal

Combating Sexual Predators Online and Conflicts with Free Speech: An Analysis of Legislative Approaches in New Jersey

Academic journal article Rutgers Computer & Technology Law Journal

Combating Sexual Predators Online and Conflicts with Free Speech: An Analysis of Legislative Approaches in New Jersey

Article excerpt

I. 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.

II. A BRIEF HISTORY OF CRIMINAL LIBEL

A. 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. … 
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