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Thursday, March 18, 2010

New Cyberbullying Case: D.C. v. R.R.

Here's a new cyberbullying case with truly atrocious facts.  It is called D.C. v. RR and was decided by a California Court of Appeal.  It involves a 15-year-old who received harassing comments on a website he maintained to promote his entertainment career.  The defendant filed a motion to strike, contending the action was a SLAPP suit.  The court affirmed the denial of the motion because the defendant did not demonstrate that his message was made in connection with a "public issue."  One part of the court's reasoning in this regard is troubling because the court rejects the argument that comments responding to a website promoting a celebrity's entertainment career are a matter of public interest, but any broad language in the case can probably be attributed to its admittedly egregious facts.  This facet of the opinion, and more, are worthy of further exploration in a subsequent post.  For now, however, I'd like to point out a fascinating, and somewhat chilling, feature of the case.  I find it especially chilling because I'm the mother of three young sons, one of whom is just entering puberty.  The defendant, R.R., explains his motive for posting a hateful comment as follows:

―. . . That afternoon, I was in a playful mood and I decided to add my own message to the Internet graffiti contest that was apparently going on. I posted a message which stated: ‗Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I‘ve . . . wanted to kill you. If I ever see you I‘m . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell.‘
―. . . My motivations in sending this email had nothing to do with any perception of [D.C.‘s] sexual orientation, and certainly did not reflect an intention to do him physical harm. As set forth above, I had no personal knowledge or belief about [D.C.‘s] sexual orientation. No one ever told me he was gay, and I had no thoughts on the subject matter. My message is fanciful, hyperbolic, jocular, and taunting and was motivated by [D.C.‘s] pompous, self aggrandizing, and narcissistic website — not his sexual orientation. My only other motivation, a bit more pathological, was to win the one-upmanship contest that was tacitly taking place between the message posters. Everything about the message is fanciful. I assumed that any rational person would understand that I was just inarticulately and offensively saying, ‗I am repulsed by your self promotional style.‘ I certainly did not think anyone would believe that they could eat their own heart after it was taken from their body. I assumed that a 10 year old child would understand that you would be dead if your heart was removed. I obviously didn‘t have school age children and I had never listened to any of [D.C.‘s] songs. Paradoxically, my message states that my motivation was a hatred of [D.C.‘s] song, not his sexual orientation, i.e., my message itself . . . belies the allegation in the complaint.
―. . . The complaint alleges that my motivation was my perception that [D.C.‘s] sexual orientation was gay. As set forth above, I had no opinion regarding [D.C.‘s] sexual orientation. More importantly, I wouldn‘t care less if he was gay. I have no animosity towards gays, and . . . even if I thought [D.C.] was gay, it couldn‘t be a basis for any hatred or threat. . . . [O]ne of my favorite relatives is openly homosexual and I have been quite vociferous in defending this relative from fundamentalist views that characterize homosexuality as a disease. In fact, one [of] my good friends at school is a member of the Gay-Straight Alliance. I have made my views clear that I think this student‘s involvement is ‗cool.‘ Likewise, I have walked side by side with gay couples in the AIDS walk, supporting their position, and I have worked through a church at a soup kitchen for AIDS patients, many of whom are gay. . . . I am not homophobic and the basis of my conduct was childishness and some repulsion to [D.C.‘s] grandiose style — not his sexual orientation.
―. . . The next day after the offensive postings, at school, I heard students talking about the posts. The students expressed the view that the posts were a funny gag. No one took the posts seriously as a death threat or an accusation of homosexuality. The posts were treated as a goof. I did not participate in these conversations because I was ashamed of my participation. In retrospect, my conduct felt infantile, immature, and was beneath me. I felt ashamed that I would allow the desire for peer approval, ‗peer pressure,‘ to induce me into acting like an idiot.

Posted by Lyrissa Lidsky on March 18, 2010 at 03:01 PM in First Amendment, Torts | Permalink


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Kids need to learn that just because they feel like ranting doesn't meant they need to post it on the internet. We all have angst feelings, but that doesn't mean we need to share it with the world. Why not process it into something positive to share?

Here's a good site parents should check out about internet safety KiwiCommons.com

Posted by: Lily | Mar 25, 2010 2:28:47 PM

Bernie, I agree with you that the defendant's statement is self-serving and not necessarily all that credible. Even if we believe him, his statement caused a tremendous amount of harm to the victim, and I don't think that the statement, read in context, would be viewed by the reasonable person as a harmless joke or mere hyperbole. Although I've defended hyperbole and exaggeration, I also firmly believe that tort law (and criminal law) must exert a civilizing influence on Internet discourse. The defendant's intent is clearly relevant to the criminal law, and it is also relevant to the question of liability for intentional torts, such as IIED. Regardless of what defendant says now, it certainly seems that there is sufficient evidence from which a reasonable jury could infer reckless disregard of the probability of inflicting severe emotional distress. I see this case as a tragedy on both sides, though. It is an example of the thoughtless and vicious things adolescents can do without considering the consequences to others.

Posted by: Lyrissa | Mar 19, 2010 3:45:23 PM

Prof. Lidsky, I appreciate that your point is that the cyberbully now claims that his post was all in good fun, and was just the kind of thing that kids of that age do when they're (to use the boy's words) "in a playful mood." If true, that sucks.

From the standpoint of First Amendment doctrine and the practicalities of litigation, however, the whole passage (which I assume was taken from the kid's declaration in support of his SLAPP motion) had limited credibility and limited relevance, for reasons similar to those that cause you to find it "chilling." Limited credibility because it's so patently a lawyer's formulation after the fact: When was the last time you heard a 15-year-old say "I had no personal knowledge or belief about [D.C.‘s] sexual orientation . . . and I had no thoughts on the subject matter." Now part of that is just mediocre lawyering, but part is also the squirming of a guilty thing surprised. The party retreated behind a doctrinal smokescreen obviously raised by a lawyer after the fact.

It has limited relevance because what the kid THOUGHT is beside the point. When someone says "I want to rip your heart out and feed it to you," you may not believe that literally but--depending on context--you may well be in reasonable apprehension of harm. Now, the kid does attempt to create an interpretive context--everybody in our community does this in adolescent fun, so no one would have any reasonable apprehension of harm--and the question is whether you believe him. (Actually, the question at this procedural juncture under the California SLAPP statute is whether the victim provided enough evidence to let a jury decide whether there was defamatory and/or "true threat" content here.)

I know you've published scholarhip recently on the "reasonable understanding of the typical reader" test, and I guess I'd like your views on how that plays out here.

By the way, I've really enjoyed all of your extremely thoughtful and well-written posts on this blog. Thanks.

Posted by: Bernie Burk | Mar 19, 2010 2:33:31 PM

I'll have to add that article to my reading list!

Posted by: Stephanie | Mar 18, 2010 9:39:51 PM

Stephanie, you are right that a certain amount of this is common, and one shouldn't overreact to hyperbole on the Internet. However, in this case, the "piling on" effect caused the 15-year-old to change schools upon the advice of the LAPD (or at least that's what the complaint says). His family even moved to a different city as a result. And I say this having strongly defended "hyberbole, venting, and exaggeration" on the Internet as fully protected by the First Amendment. See Lidsky, Silencing John Doe: Defamation and Discourse in Cyberspace.

Posted by: Lyrissa | Mar 18, 2010 6:11:39 PM

It seems like the kid was just "trolling." There is a difference between that and Cyberbullying. Trolling is more anonymous than Cyberbullying and in Trolling the only intent is to draw attention to one's self. There are more subtle differences too. Also, its the Internet. You need to expect a certain amount of animosity.


Posted by: Stephanie | Mar 18, 2010 3:33:03 PM

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