On the Internet, nobody knows you're a freakish suburban mother: Freedom of Speech vs. Protecting Vulnerable Children (Hint: I go with free speech)

People too often conflate a ideal outcome with a ideal law. For example, most reasonable people want to eliminate discrimination and hate from their communities. But attempts to use the law to eliminate hate aren't well-founded. Namely, they impinge on freedom, and they really don't work.

Now, when public policy makers and elected officials (like DAs) are faced with the question of what to do with Lori Drew, they make a similar conflation error. Who is Lori Drew? Lori Drew was a neighborhood mother who created a fake MySpace profile pretending to be a teenage boy to harass one of her daughter's friends. When that friend committed suicide, the whole nasty web of lies came to light. (Reason magazine has been covering the story fairly extensively.)


In this case, the moral outrage of most reasonable people is pretty justified. A mother creating a fake MySpace profile that leads to the death of one of her daughter's friends? Pretending to be a teenage boy and carrying on a cyber "relationship" with this particular girl, who was on anti-depressants and mood stabilizers? The whole story reeks of immaturity and poor judgement and hints that Ms. Drew may have had a few unresolved mental health issues of her own.

At the very least, the parents of the deceased teenager might have had a civil cause of action against Ms. Drew on any number of grounds. And they should have availed themselves of legal system. But after a lengthy investigation, Drew was rightfully cleared of any criminal wrongdoing by Missouri state and local officials. However, the case received a fair bit of media attention -- and before long, a U.S. attorney in California had brought a federal criminal complaint against Drew. She was charged with one count of conspiracy and three counts of "accessing a computer without authorization via interstate commerce to obtain information to inflict emotional distress."

As Reason's blog correctly asked, "Is Being Mean Online a Federal Crime?" In my view, Lori Drew's repulsive actions fall broadly under an umbrella of free speech. Creating new identities online is a hallmark of the Internet -- imagine a World Wide Web without Internet handles, pseudonyms and Second Life Avatars. As the New York cartoon above points out -- on the Internet, nobody knows you're a dog. That's a central tenant of Web culture. Surely Drew was conducting herself no differently than millions of other Internet users who create broad, fake identities. I once created a Facebook profile in the name of a minor Seinfeld character. Am I to be charged with "unauthorized access" also? Am I a Federal criminal for violating a minor clause in the Facebook terms of use agreement? As legal scholars have noted, 'unathorized access' laws have a long and sorted history of prosecutorial abuse. And Drew is certainly being tried on a technicality.

Wanting to see Lori Drew punished is a completely natural emotional reaction. Responsible, mature adults don't behave in this manner. They don't misrepresent themselves as teenage boys on MySpace and carry on fake cyber-relationships with their children's friends. They don't drive emotionally insecure teenagers to suicide.

But the real question we should be asking ourselves is, at what cost does Drew's pending trial represent another blow against freedom of expression? If causing emotional distress over a computer network is a federal crime, could I be punished for breaking up with my girlfriend via email -- if she later committed suicide? What about Second Life? If Second Life users cause emotional distress, will they be running afoul of federal laws? Will people who create fake profiles, or use Internet pseudonyms, or otherwise misrepresent themselves also be charged with "conspiracy"?

These are serious and legitimate question that are being forgotten in the scramble to hang this woman from the nearest tree for all in the digital town square to see. Certainly, Drew's case represents an extraordinary one. How many suburban mothers drive neighborhood children to suicide, after all? But it also has the ability to set precedent. It also has the potential to galvanize public support for more stringent controls of the Internet. And it has the ability to further chill free speech and freedom of expression on the Internet. All in the name of protecting children.

There are some prices that are too high to pay -- even to protect our young.