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Missouri Prosecution for Emotionally Distressing a Minor:

Elizabeth Ann Thrasher is being prosecuted under the Missouri felony harassment statute passed in the wake of the Lori Drew case. The St. Louis Post-Dispatch reports:

Elizabeth A. Thrasher, 40, [was involved in] online [bickering] with the 17-year-old daughter of a woman Thrasher's ex-husband was dating.... The teen [then] sent a MySpace message to Thrasher, telling her to grow up.

Thrasher ... then created a listing on Craigslist's Casual Encounters section, investigators said. The listing included the teen's picture, employer, e-mail address and cell phone number. Banas said the posting's language would lead people to believe it was an invitation to sexual contact.

Investigators said men called the girl and sent e-mails, text messages and pornography to her cell phone after Thrasher posted the listing....

Now this is bad behavior, and I'd see no First Amendment problem with criminalizing such deliberate lies about particular other people. They are in any event probably civilly actionable as libel or false light invasion of privacy, and there's no constitutional barrier to making them criminal as well. But the statute under which Thrasher is prosecuted isn't limited to false statements; rather, it provides (in relevant part, as revealed by the indictment),

1. A person commits the crime of harassment if he or she: ...

(3) Knowingly ... causes emotional distress to another person by anonymously making ... any electronic communication; or

(4) Knowingly communicates with another person who is ... seventeen years of age or younger and in so doing and without good cause recklessly ... causes emotional distress to such other person; or ...

(6) Without good cause engages in any other act with the purpose to ... cause emotional distress to another person, cause such person to be ... emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person.

2. Harassment is a [class D felony if] ...:

(1) Committed by a person twenty-one years of age or older against a person seventeen years of age or younger ...

As I've noted before, this is an extremely vague and potentially broad statute. It's a crime (perhaps a felony) to purposefully "emotionally distress" someone "without good cause," with the jury deciding what's good cause -- imagine how much speech this can cover. Likewise, under subsection 4 (which doesn't seem to be in play in this particular prosecution, though it's not clear from the indictment) it's a crime to even recklessly cause emotional distress to a minor, under subsection 3 to do so knowingly cause emotional distress to anyone by an anonymous electronic communication, whether or not one has "good cause." And consider how broad "emotional distress" can be.

A great deal of speech, including anonymous speech, emotionally distresses people. That doesn't strip it of constitutional protection, and neither should constitutional protection turn to jury conclusions of which causes are good and which are bad.

So it seems to me that the statute is facially overbroad, and thus violates the First Amendment (at least unless a court can somehow interpret the statute narrowly, which is hard for me to imagine given the breadth of its terms, and the absence of any limitation to lies or other unprotected speech). It therefore can't be applied even to someone -- such as Thrasher -- who could indeed be constitutionally punished under a narrower statute.

Thanks to commenter PLR for the pointer.

einhverfr (mail) (www):
BTW, the 4th amendment issue is that the provision should be void for vagueness because "good cause" and "sensibilities of the average person" are not objective standards and encourage judges and juries to substitute their own biases for actual legal standards.
8.21.2009 7:51pm
Eugene Volokh (www):
Einhverfr: Are you sure you mean the 4th Amendment?
8.21.2009 7:55pm
einhverfr (mail) (www):
I was thinking of due process issues (4th and 14th Amendments) and void for vagueness doctrines. Is this wrong?
8.21.2009 8:07pm
einhverfr (mail) (www):
(I am aware that the Supreme Court has not held that contemporary community standards are too vague to be Constitutional as recently as a few years ago but it seems to me that this is, in context, substantially more vague than that.)
8.21.2009 8:08pm
anon e moose:
I hadn't heard that the 4th Amendment had a due process clause.
8.21.2009 8:31pm
Fub:
(6) Without good cause engages in any other act with the purpose to ... cause emotional distress to another person, cause such person to be ... emotionally distressed, and such person's response to the act is one of a person of average sensibilities considering the age of such person.
Ladies and gentlemen of the jury, we have shown you uncontroverted evidence that these kids were on my client's lawn when he shook his cane in the air and shouted at them. We ask you to find that constitutes good cause for his actions.
8.21.2009 8:32pm
Occasional Lurker:
einhverfr meant, I assume, 5th A vagueness/due process
8.21.2009 8:47pm
ShelbyC:

einhverfr meant, I assume, 5th A vagueness/due process


Maybe he's one of those guys that doesn't believe in the 2nd Amendment :-)
8.21.2009 9:28pm
einhverfr (mail) (www):
heh... sorry, I got 4th and 5th amendments confused....

And I am at least a moderate supporter of 2nd amendment rights.
8.21.2009 9:36pm
arbitraryaardvark (mail) (www):
A relevant case would be Shrink Missouri PAC v. Maupin, 892 F. Supp. 1246 (E.D. Mo. 1995), aff'd, 71 F.3d
1422 (8th Cir. 1995),struck down certain regulations of anonymous speech. I agree with EV that the statute is overbroad.
Section 8. That no law shall be passed impairing the freedom of speech, no matter by what means communicated: that every person shall be free to say, write or publish, or otherwise communicate whatever he will on any subject, being responsible for all abuses of that liberty; and that in all suits and prosecutions for libel or slander the truth thereof may be given in evidence; and in suits and prosecutions for libel the jury, under the direction of the court, shall determine the law and the facts. annotated
8.21.2009 10:21pm
EMG:
"False statement" doesn't seem adequate to describe the act of advertising a minor child as sexually available. I mean, the fact that it was "false" seems the least of it, in some sense.

Why isn't it reasonable to give minors more protection against harassment than adults? It's illegal to emotionally abuse your own child, right? Then why not someone else's?
8.21.2009 11:41pm
NickM (mail) (www):
EMG - consider the following case.

Several years ago, during the grocery worker strike in Southern California, some picketers brought their minor children with them and were having them go up to people about to enter supermarkets and ask them not to shop at that store because they were being unfair to the child's parent.

On one occasion a woman brought her daughter (about 10 years old, by my estimate) to a grocery store I regularly shopped at and tried that on me.

I stopped and explained to the girl (in a normal speaking voice) how her mother made bad life choices and should have studied harder in school instead of trying to be so popular with all the boys, that if her mother had paid more attention in school, she wouldn't be middle-aged and still doing a job designed for high-school kids, and that the daughter should use her mother as an example of how not to live your life, otherwise she could end up doing a menial job for the rest of her life. By the time I was done, the daughter was crying, and her mother was speechless and furious.

What in the MO statute would acknowledge that my speech was constitutionally protected? Under that statute, if a police officer's personal opinion is that I didn't have good cause to do it, I could be charged with a felony.
The existence of the "good cause" exception to the statute doesn't eliminate the massive chilling effect it has on speech.

Nick
8.22.2009 2:18am
Scape:
Way to prove to everyone on the internets, Nick, that you are a contender for the World's Biggest Douchebag competition.
8.22.2009 2:40am
NickM (mail) (www):
I <3 anonytrolls.

Nick
8.22.2009 3:06am
Eugene Volokh (www):
EMG: I considered also discussing whether the speech could be criminalized on the grounds that it solicits an illegal act (see the recent Williams case), but in Missouri the age of consent is 17. So it seems to me that the main reason this speech could be punished under a sufficiently narrow law is precisely that it's false.
8.22.2009 3:27am
Ken Arromdee:
Way to prove to everyone on the internets, Nick, that you are a contender for the World's Biggest Douchebag competition.

If you don't want someone to fight your children, don't send them into battle.

The idea that we shouldn't be mean to politically protesting children because they're children leads to a situation where the parents can use the children as pawns for any cause at all, while their opponents can do nothing in response.
8.22.2009 4:26am
whit:

It's illegal to emotionally abuse your own child, right?


is it? under what law? i've investigated scores of actual child ABUSE cases. i have never heard of anybody being prosecuted for "emotional abuse". emotional abuse could arguably lead to a CPS investigation. and maybe even a kid being taken from the home or a parent being put under court order not to abuse a kid "emotionally" in a certain way after a court had found that to be the case. but there is no law i am aware of in my state that CRIMINALIZES (iow makes it illegal) to "emotionally abuse" one's child.

again, i see this as yet another example of the war on domestic violence and how it results in bad and unconstitutional (one, the other or both) policy/law
8.22.2009 4:37am
EMG:

there is no law i am aware of in my state that CRIMINALIZES (iow makes it illegal) to "emotionally abuse" one's child


I figured that somebody would say this (though I don't know whether it is actually true or not). IANAL and hence not entirely sure how the different shades of illegality interact with the notion of "crime." But I do know enough to understand that there are illegal things that are not what we normally call crimes (e.g., speeding), which is why I purposely said "illegal" and not "a crime."

So anyhow... if the law doesn't touch on it in some sense, how can CPS get involved? Having CPS take your kids is some pretty serious state action, so there's gotta be a statute involved somewhere. Is it in some special law that only relates to one's own children? If so, why?
8.22.2009 6:09am
Kirk Lazarus:
So could it be unlawful in Missouri to inform a minor that Santa Claus doesn't exist?
8.22.2009 8:14am
Laura(southernxyl) (mail) (www):

Ken Arromdee:

...

If you don't want someone to fight your children, don't send them into battle.


I'm with Scape. Making the mother mad is fine. Making the girl cry is not fine. Her mother "had her" go up to Nick, according to Nick; it wasn't a spontaneous or voluntary action on the child's part, and by upsetting her to the point of tears Nick was punishing her for her mother's actions.

Seriously, the mother is making the kid do this; what's she supposed to do? She's a child who has to go home with her mother at night, right?

I wouldn't be bragging.
8.22.2009 8:21am
TCO (mail):
Part of growing up is learning things are not all ducky. I'm with the battle guy. That girl wants to approach people and pull that shit, take the consequences.
8.22.2009 8:38am
Laura(southernxyl) (mail) (www):
"That girl wants to approach people and pull that shit,"

The girl wanted to?

How about being 10 years old and having a choice between pissing off your mother, who feeds you, and talking to a stranger who rips you a new one?

Or how about the adult saying "excuse me," stepping around her, and going about his business?
8.22.2009 8:55am
Laura(southernxyl) (mail) (www):
Further:


TCO (mail):
Part of growing up is learning things are not all ducky.


Having a mother who has a low-paying job, and who will push you out to irritate strangers, is not what I would call ducky. I doubt the girl needed Nick's tutelage to learn that things are not all ducky. In fact, she might have been in a position to teach him a thing or two.
8.22.2009 8:57am
Scape:
I was neither defending the mother's actions nor claiming it was okay to use children as pawns in lobbying against your employer. Because it's not.

I was just making the pretty much indisputable observation that only a gigantic choad would do what Nick did.

That said, his behavior does give a good example of the difficulties of this law. There are times when emotionally abusive behaviour should be criminalized. Ms. Thrasher's actions can and ought to be -- more mundane examples of needless emotional abuse, such as Nick's, should not. The problem is that the kind of abuse falling in the "should" category is going to be so diverse in nature and present such a different set of facts each time that it's nearly impossible to ensure that the language contained in one or two statutes will be enough to catch them all.

The vagueness is an attempt to ensure all such "deserving" acts can be prosecuted under it, but the cure is worse than the problem. I can't see another good way around it, though, other than through the cumbersome process of writing lots and lots of narrowly drawn laws that target specific sorts of abuse and hope that the cases that actually occur fall within those categories.
8.22.2009 10:41am
Ken Arromdee:
it wasn't a spontaneous or voluntary action on the child's part, and by upsetting her to the point of tears Nick was punishing her for her mother's actions.

The problem is that if we don't accept the idea of upsetting children, then that gives the parent incentive to use the children this way. Your refusal to be nasty to children becomes a weapon used by the parent.
8.22.2009 10:55am
Laura(southernxyl) (mail) (www):
No, my refusal to be nasty to children is my refusal to add to that child's grief and misery. If the mama cared she wouldn't have had that kid out there in the first place.

All Nick accomplished was to upset that little girl, and have some kind of cartharsis. That was it. Nothing stopped him from just stepping around her and going into the store.
8.22.2009 11:11am
Joseph Slater (mail):
Ken Arromdee:

A "weapon" to do what, in this case? It was a labor protest and the child was attempting to convince a potential customer not to patronize a store. As others have already noted, the customer had the easy option of walking around the child and not engaging her, and entering the store. Instead, he made a gratuitous choice to berate a 10-year old girl and make her cry. Classy.
8.22.2009 11:16am
Scape:
We don't accept the idea of grown adults bullying children because it is needless cruelty.

The proper response it what Laura suggested -- step around, ignore the child, and take the high road. Any adults who try such a stunt should be shamed and their attempt to use their children as a cheap political trip should be pointed out and made fun of for the mawkish exercise it is.

What you do not to do is go on a judgmental smugly superior diatribe and make it your own personal duty to make sure that a little kid knows that "the world is not all ducky."

You can have the rhetorical prowess of William Jennings Bryant, and you will still lose the debate every single time if you do it by bullying a 10 year old. Because no matter the strength of your case, hey, guess what, everyone sees that your argument consists of bullying a 10 year old child.

And then you just lose. Flat out. Every single time.
8.22.2009 11:24am
Joseph Slater (mail):
One more thing. Maybe it was easier to pick on a 10-year old because an adult might have pointed out the numerous problems in Nick's arguments.

First, it's at best ignorant and arrogant to assume that the only reason an adult would work in a grocery store is because that adult made "poor life choices."

Second, even people who make "poor life choices" have the legal right to form a union and engage in a labor protest. Related to that, whether or not some members of a union have made poor life choices has nothing to do with whether the union has a defensible position in its dispute with its employer.

Members of the public have a right to know about what's going on in stores they patronize. Of course people can choose not to listen if they don't want to listen. Still, maybe if he'd tried his diatribe on somebody his own size, he would have learned something.
8.22.2009 11:48am
Martha:

Still, maybe if he'd tried his diatribe on somebody his own size, he would have learned something.

Doubtful, but one can always hope.
8.22.2009 12:21pm
Fub:
Joseph Slater wrote at 8.22.2009 11:16am:
Classy.
One can agree with the sarcastic evaluation of the act and still believe that it should not be a crime.
8.22.2009 1:00pm
SuperSkeptic (mail):
Harassment, disorderly conduct, etc. are typically overly vague and used to suppress speech or atypical non-conforming behavior - unconstitutionally.

It's high time we disallow such broad legislative delegations of criminalization to police and prosecutors.

Strike one for the Court

Rules like those from Chaplinsky, even if those less skeptical or cynical than me admit were meant in good-faith to rule outlying situations, are creeping exceptions that are gradually swallowing the essentials of the First Amendment.

Strike two for the Court

Moreover, it is absolutely absurd to subject suspect speech to "community standards" under the 1st - under any circumstances.

Strike three for the Court

The behavior of this 40 year old child is not criminal. But, I would let a civil jury pick her pockets based on "community standards."
8.22.2009 1:00pm
Joseph Slater (mail):
Fub:

Absolutely. There are lots of douchey things people do that are not / should not be illegal.
8.22.2009 2:27pm
NickM (mail) (www):
Laura - why do you assume the mother didn't care about her daughter, as opposed to simply not thinking in advance about the downside of using your child as a public plea for sympathy?

Nick
8.22.2009 8:13pm
Laura(southernxyl) (mail) (www):
Well, Nick, she put the kid in your path, didn't she?
8.22.2009 8:54pm
NickM (mail) (www):
Laura - I'm not sure whether you meant the answer as sarcasm, but if it's serious, I think it's nonresponsive.

Nick
8.22.2009 9:49pm
Laura(southernxyl) (mail) (www):
Okay, I'll be more responsive.

If the mom was going to be swayed by people being ugly to her daughter and making her cry, she would not have put her in the position of having that happen. Clearly she didn't care enough to keep her out of that.

Unless you are saying that your conduct was so egregious that no mother could possibly have anticipated that you would act that way.
8.22.2009 10:01pm
NickM (mail) (www):
Laura - I think you are giving her too much credit for forethought and preparation.

Nick
8.22.2009 10:08pm
whit:

I figured that somebody would say this (though I don't know whether it is actually true or not). IANAL and hence not entirely sure how the different shades of illegality interact with the notion of "crime." But I do know enough to understand that there are illegal things that are not what we normally call crimes (e.g., speeding), which is why I purposely said "illegal" and not "a crime."

So anyhow... if the law doesn't touch on it in some sense, how can CPS get involved? Having CPS take your kids is some pretty serious state action, so there's gotta be a statute involved somewhere. Is it in some special law that only relates to one's own children? If so, why?



first of all, i am sure it is true. but if somebody wants to pore through the RCW and find a law that contradicts what i said - feel free.

to answer your question - CPS is a child welfare agency. they can get involved even if conduct that is alleged is not a CRIME. much of what they investigate intersects with the police (criminal matters) but much of what they investigate does NOT.

CPS can also remove a child from the home (although they will use as as muscle) if they determine the child is in imminent danger from the environment. again, this does not necessarily mean a crime has occurred. police have the same authority - with or without a court order (see: exigency).

CPS (and the cops,etc) can also take their evidence to a judge,and the judge could issue an order removing the kid from the home andor placing certain restrictions on the child and.or parents.

in brief, it is not ILLEGAL to emotionally abuse a child, also understanding that what is and isn't "emotional abuse" is highly subjective.
8.22.2009 10:41pm
Ken Arromdee:
If the mom was going to be swayed by people being ugly to her daughter and making her cry, she would not have put her in the position of having that happen.

Maybe she assumed that the fact that it was a child would provide her protection, and put her daughter in that positition because she believed (incorrectly) that the protection would work.
8.22.2009 11:26pm
Laura(southernxyl) (mail) (www):
Ken, but the child did protect the mom. Nick didn't explain to the mother what a loser and a failure as a human she was, he explained that to the child.

I have about as much respect for the parenting skills and judgment of this mother as I do for parents who take their kids to see scary, violent R-rated movies and such - less, actually. But at least the movies aren't singling out the kids for their attention.
8.23.2009 8:15am
ReaderY:
I don't think the overbreadth doctrine is as clearly viable as it once was. At least since Arizonans for Official English v. Arizona (520 U.S. 43), the modern trend for a federal court dealing with a first amendment challenge to a possibly overbroad state statute has been to certify to the state courts for a limiting construction. I think a limiting construction could easily be obtained in this case.

I would wait for a case which couldn't be so obviously presecutable under the first Amendment, or at least a case less likely to generate strong pro-prosecution sympathies than this. I would think a case like this would cause courts to go out of their way to look for a saving construction, as opposed to looking for a way to strike the statute down.
8.24.2009 1:32am

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