July 2010 Archives

A Long Island judge has dismissed a $6 million defamation action filed by a teenager against four former classmates who set up a Facebook page on which they joked that the teen used heroin and contracted AIDS by having sex with animals in Africa.

The judge ruled that no reasonable person could believe that the allegedly defamatory statements were facts.

"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."

The judge also dismissed a negligent-supervision claim against the teenagers' parents, saying that a computer does not constitute, as required by New York case law, a "dangerous instrument." "To declare a computer a dangerous instrument in the hands of teenagers in an age of ubiquitous computer ownership would create an exception that would engulf the rule against parental liability," the judge concluded.

The plaintiff in Finkel v. Dauber sought $3 million for the damage to her reputation and character and another $3 million in punitive damages.

In June 2009, a Manhattan judge granted Facebook's motion for summary judgment on the basis of the Communications Decency Act of 1996 which provides immunity to service providers for "information originating with a third-party user."

In dismissing the case, the judge found that "while the posts display an utter lack of taste and propriety, they do not constitute statements of fact. 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."

This case illustrates the continuing difficulty in applying even long-established legal principles to cyberspace where hyperbole and conjecture are contagious. According to this court, the more sensational the statement, the more protection the poster will enjoy. In a world where almost anything is possible, and most of it is posted online, individuals seemingly enjoy less and less protection from even the most outrageous and sensationalistic statements.

In a recent little noticed unpublished First Circuit decision, former USSC Justice Souter held that "whatever the scope of a school’s responsibility towards its students . . . there is no apparent constitutional obligation to impose physical restraint upon teenagers not at immediate risk of harm to themselves or others."

This case was brought by mothers of teenagers who were not physically restrained by school officials from leaving their schools during instructional hours. The mothers brought action under state law as well as 42 U.S.C. § 1983 and § 1988 seeking monetary and injunctive relief for violating Fourteenth Amendment due process, the mothers’ right to preserve family integrity and the children’s right to enjoy freedom from abuse and neglect.

The school system explained their policy of permissiveness by referring to a state education regulation limiting use of lawful physical restraint to instances in which children’s unfettered behavior would raise a risk of “assault or imminent, serious, physical harm” to themselves or others; absent such danger, the prevention of truancy would not be worth the burden of defending the liability claims that would doubtless eventuate.

The magistrate judge hearing the case below recognized that the schools’ refusal to confine children to school premises during school hours effectively converted the state’s compulsory attendance law into the children’s option to wander off into trouble that the parents could not effectively prevent. He suggested that the mothers consider the possibility of relief from the general regulation through Individual Educational Plans for their children as special education students.

The mothers argued that inadequate supervision in schools infringes their rights to maintain the integrity of their families under Meyer v. Nebraska, 262 U.S. 390 (1923), and Pierce v. Society of Sisters, 268 U.S. 510 (1925), cases that held it to be beyond the power of states to limit a parent’s choice to provide foreign language instruction in elementary schools or to resort to private education. The Court found, however, that these cases recognized a parent’s liberty to be free from state interference with certain education choices, not a right to require state or local government to run public schools in a way a parent might think they ought to be administered. Any actionable interference with family integrity must be “directly aimed at the parent-child relationship.” Manarite v. Springfield, 957 F.2d 953, 960 (1st Cir. 1992).

Judge Souter further found that the Supreme Court’s discussion in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 199-200 (1989), is on point: “[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being." According to Souter:

The situation of the children in this case is not even close to facts that would thus raise a state obligation. There is neither restraint of the child (that indeed is the very complaint), nor any practice or circumstance rendering the child unable to care for himself, nor failure to provide basic human needs of food, clothing, shelter, medical care or reasonable safety. As the Supreme Court later observed in Vernonia School District 47J v. Acton, 515 U.S. 646, 655 (1995), “we do not, of course, suggest that public schools as a general matter have such a degree of control over children as to give rise to a constitutional ‘duty to protect’” (citing DeShaney, 489 U.S. at 200).

This decision did not consider any rights parents might have under the Individuals with Disabilities Education Act [IDEA] or other state or federal regulation. Clearly, the court might have found that a policy and practice of allowing special education students to leave with impunity might effectively deny them a free appropriate public education [FAPE]. Beyond this, however, there is no Constitutional duty for schools to keep children in the classroom, nor is there any apparent duty to insure their safety or well-being (or even notice to the parents or police) once they leave school grounds.

The case is Saez v. City of Springfield.

Almost 5 years ago, the Marsh Law Firm was instrumental in enhancing the federal civil legal rights of children who are victims of child pornography. Borrowing from intellectual property law, our firm helped draft, introduce and pass—in just seven months—a comprehensive update to a long-forgotten federal law which gives victims the right to sue anyone who produces, distributes or possess their child sex abuse images. Masha’s Law provides statutory damages of $150,000 for each violation of federal child pornography provisions and was incorporated into the Adam Walsh Child Protection and Safety Act signed by President Bush on July 27, 2006.

In 2008, Florida passed a state version of Masha's Law. Now Kansas has joined the effort by passing a state law which is modeled on the federal law we helped write.

The bill provides a recovery for actual damages of at least $150,000. In order to bring a civil action against a producer, promoter, or intentional possessor of child pornography the plaintiff must prove that while he or she was under the age of 18, he or she was the victim of an offense that resulted in a conviction, that offense was used in the production of child pornography, and the victim suffered personal or psychological injury as a result.

Civil action may be pursued through private counsel or by the Attorney General at the victim’s request. The bill also creates a three year statute of limitations.

In October 2009, the U.S. Children’s Bureau named University of Michigan Law School the National Quality Improvement Center on the Representation of Children in the Child Welfare System (QIC-ChildRep).

The QIC-ChildRep, is a five-year, $5 million dollar project to gather, develop and communicate knowledge on child representation, promote consensus on the role of the child’s legal representative, and provide one of the first empirically-based analyses of how legal representation for the child might best be delivered.

The Center, which is run by the legendary child advocate Don Duquette, has a great website and promises to answer the following questions:

• What should be the duties and responsibilities of the child’s representative in civil child protection proceedings?
• Who should represent the child in such proceedings? A lawyer? A CASA? A social worker? A team?
• What does the child representative do that makes a difference in a child’s life?
• How can effective representation for the child be accomplished? That is, what organizational structure best delivers legal services for a child?
• By what criteria is effective child representation to be measured?
• How should the child's representative accommodate the child's wishes in setting the goals of the advocacy?

This is a serious initiative which is long overdue and which will significantly advance the representation of children in the child welfare system. I look forward to the results.

Legislators and courts have long recognized what common sense makes clear - children depicted in child abuse images[1] are harmed not only by the sexual abuse captured by the images, but also by the subsequent distribution, possession, and viewing of the images of their abuse.[2] Legislators and courts have similarly recognized the importance of awarding restitution to victims who are harmed by crime to help make them whole, and to aid in their recovery.[3] Thus, it seems a straightforward proposition that children depicted in child abuse images should be awarded restitution from their offenders, including those offenders who possess and view their abuse. In fact, this simple supposition seems to underpin the statute governing restitution in cases involving sexual exploitation.[4]

Despite the logic, justness, and legality of affording restitution to the victims in child abuse images, federal courts differ greatly in their approach to the restitution rights of these victims[5] in the context of possession cases. As discussed below, over the last year alone, courts have awarded these victims full restitution, partial restitution, di minimus restitution, or even no restitution at all. These differences in outcome can be attributed, at least in part, to varied legal interpretations of the governing restitution statute, 18 U.S.C. § 2259. This article provides a brief overview of the current state of the law, and suggests that a court-based or legislative solution is urgently needed to avoid further victimization of these victims.