A Judge Gets The ‘Net

Via Adjunct Law Profs, Mitchell H. Rubinstein posts about a New York Supreme Court decision, Finkel v. Dauber, by Nassau County Supreme Court Justice Randy Sue Marber.  The plaintiff sued for defamation stemming from nasty comments on Facebook.

This action arises out of prurient statements posted by the officers of a Facebook group. The group’s information page shows that its name is “90 Cents Short of a Dollar”, and lists five officers and six members, five of whom are the officers…. The listed purpose of the group is “just for fun” and “inside jokes”.

Ninety Cents Short of a Dollar (hereafter referred to as “Ninety Cents”) is a “secret” Facebook group, which has no public content and does not appear on a Facebook member’s profile. New members must be invited by an administrator, here either of the Defendants… Although Ninety Cents lists only six members or “cents”, ten people are listed as “cents” in the group’s “recent news”.

What this means, “Ninety Cents,” eludes me completely.  Perhaps it’s some inside joke, or a cool reference to some movie favored by people younger than my favorite pair of shoes, but the judge doesn’t break a sweat worrying about it.  The comments, however, I get.

The following explicit material is necessary for analysis (spelling, punctuation and typos are as in original):

ooooh i like this group.

BTW the 11th cent, unbeknownst to many, acquired AIDS while on a cruise to Africa (with another member of the group who shall remain nameless). While in Africa she was seen fucking a horse. NICHTE NICHTE eleventh cent! I mean you know . . . I kinda felt bad for the eleventh cent…but then again I felt WORSE for the horse. … (Leah Herz 1/29/07, 5:04pm)

In regards to the 7th cents comments,,, it was not from an African cruise… it was from sharing needles with different heroin addicts, this led to cross “mojination” which caused the HIV virus… she then persisted to screw a baboon which caused the epidemic to spread.

(Jeff Schwartz 1/29/07, 7:43pm)

I heard that the 11th cent got aids when she hired a male prostitute who came dressed as a sexy fireman. apparantly .. she was lonely, because her friends no longer associated with her. her sexy fireman prostitute was her only company. in addition to acquiring aids, this nameless 11th cent aquired crabs, and syphillis. (Melinda Danowitz, 1/29/07, 8:00 pm) also i heard that the stds (sexually transmitted diseases) she got were os bad that she morfed intot he devil in one of our pictures…oops did i reviel the 11th cent?>

(Michael Dauber, 1/29/07, 8:32 pm)

For those of you reading this, what did you think your children were doing online after you went to sleep and they hid in their bedroom playing on the computer?  They write nasty, often dirty, stuff.  Sometimes about others.  Sometimes about each other.  Sometimes about you, but you will never know it because you aren’t a member of the Ninety Cents group.

One might suspect that a judge, being less than personally involved in the doing of an infantile online tribe proving their maturity by typing nastiness on a screen, would be outraged by the content of these comments.  You would be wrong.

A reasonable reader, given the overall context of the posts, simply would not believe that the Plaintiff contracted AIDS by having sex with a horse or a baboon or that she contracted AIDS from a male prostitute who also gave her crabs and syphilis, or that having contracted sexually transmitted diseases in such manner she morphed into the devil. Taken together, the statements can only be read as puerile attempts by adolescents to outdo each other.

While the posts display an utter lack of taste and propriety, they do not constitute statements of fact. An ordinary reader would not take them literally to conclude that any of these teenagers are having sex with wild or domestic animals or with male prostitutes dressed as firemen. The entire context and tone of the posts constitute evidence of adolescent insecurities and indulgences, and a vulgar attempt at humor. What they do not contain are statements of fact.

Precisely.  The internet is replete with such nonsense, and no doubt will be stuffed full of more as children continue to lay hands on keyboard and confuse vulgarity with maturity.  It’s going to happen because kids are kids, and by definition do foolish things.

Insofar as the Plaintiff’s counsel suggestion that the posts constitute cyber bullying, the Courts of New York do not recognize cyber or internet bullying as a cognizable tort action. A review of the case law in this jurisdiction has disclosed no case precedent which recognized cyber bullying as a cognizable tort action.

While many, particularly the lawprofs, assume the existence of some generic wrong they call “cyberbullying,” and legislatures are prompted by vague public pressure to make bad things on the internet go away, Judge Marber refused to hop on the bandwagon and manufacture a wrong that doesn’t exist. 

On the legal side, no one has yet come up with  a viable definition such that we can even begin an intelligent conversation about the propriety of criminalizing (or tortifying?) cyberbullying.  On the practical side, Judge Marber has called out this “puerile attempts by adolescents” at vulgar humor for what it is.  Of course it’s ugly and nasty, but nobody believes it’s true.

As is invariably the way of civil actions, all parties demanded summary judgment, because all parties naturally believe there is no issue of fact to be tried and the only question, as far as plaintiff’s lawyers are concerned, to be answered by a jury is how much do they get a third of.  Judge Marber answered the question in a clear, crisp, single word.  Dismissed.  Well done.

If junior can’t handle the rough and tumble world of adolescence on the internet, then pull the plug on the WiFi router.  Better still, tell junior to toughen up, that throughout life people will call him mean names when they are angry with him, just as he calls other people mean names (though he’s not going to admit that to you). 

We would all do a lot better for our children to regularly repeat the old saw about sticks and stones, and stop elevating hurt feelings to mythical status worthy of life and death choices.

4 comments on “A Judge Gets The ‘Net

  1. Aaron G

    “If junior can’t handle the rough and tumble world of adolescence on the internet, then pull the plug on the WiFi router. Better still, tell junior to toughen up, that throughout life people will call him mean names when they are angry with him, just as he calls other people mean names (though he’s not going to admit that to you).”

    This might be the SGH quote of the year. Well said.

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