A.B. v. State

885 N.E.2d 1223, 2008 Ind. LEXIS 363
Indiana Supreme Court·Decided May 13, 2008·No. No. 67S01-0709-JV-373·Published·Cited by 20 cases

Opinion

DICKSON, Justice.

A.B., a juvenile, appeals her adjudication as a delinquent child for her postings on the Internet site MySpace.com that, if committed by an adult, would constitute the criminal offense of Harassment.1 The [1224] Court of Appeals reversed, concluding that A.B.’s allegedly harassing messages were protected political speech. A.B. v. State, 863 N.E.2d 1212 (Ind.Ct.App.2007), reh’g denied. Disagreeing with this rationale, we granted transfer,2 and now also reverse the trial court, but for a different reason: the State failed to prove all of the statutory elements for the offense of Harassment.

As a preliminary matter, we note that the evidence presented at the fact-finding hearing was extremely sparse, uncertain, and equivocal regarding the operation and use of MySpace.com (“MySpace”), which is central to this case. Only two witnesses testified at the fact-finding hearing, the school principal and A.B.’s mother. No expert witnesses were called. Neither of the witnesses provided knowledgeable and reliable details about MySpace. The primary source of information about MySpace came from the testimony of the principal, whose “understanding [came] from talking to students and trying to go figure how to go about researching this.” Tr. at 25. The principal testified: “I don’t get on MySpace.” Tr. at 36. The Commentary to Canon 3B of the Indiana Code of Judicial Conduct advises: “A judge must not independently investigate facts in a case and must consider only the evidence presented.” Notwithstanding this directive, in order to facilitate understanding of the facts and application of relevant legal principles, this opinion includes information regarding the operation and use of MySpace from identified sources outside the trial record of this case.

MySpace is “an online community that lets you meet your friends’ friends.”3 Most aptly described as a social networking site, individuals can create “profiles” listing their interests in books, television, music, movies, and so forth, as well as posting pictures, music, and videos.4 MySpace allows its members to control who can view the entirety of their “profile.”5 On all “profiles,” certain information is displayed to other members and visitors that “allows our users to identify each other and expand their network of friends.”6 MySpace users have a choice to make their “profiles” public or private.7 For example, if a member wishes to restrict public access to her “profile,” she may make it viewable to only those that she has accepted as friends, but information such as the member’s photo and first name are still displayed for public view.8 A “group” page differs from a “profile” in that “group” pages are sites where people of common interests can join and make postings.9 A “group” can be public or private at the discretion of its “moderator,” or creator.10 Various sources cite MySpace user demographics to be predominantly between the ages of fourteen and thirty-four, with thirty-four being considered a high estimate due to people altering their ages to skew higher in some [1225] cases to mask their true age or to be humorous.11

When the 2005-06 school year began, A.B. was a student at Greencastle Middle School, where Shawn Gobert had been principal for thirteen years. Sometime before February 2006, she transferred to a different school. In February 2006, Mr. Gobert learned from some of his students of a vulgar tirade posted on MySpace that apparently targeted his actions in enforcing a school policy. As appropriate for a responsible and prudent school administrator, Mr. Gobert investigated. With the assistance of others, including some students, he discovered that a “Mr. Gobert” “profile” had been created on a MySpace Internet web page, purportedly by him, and on which A.B. had posted a vulgarity-laced tirade directed against him. In fact, another juvenile, R.B., a friend of A.B. and at the time a student at Greencastle Middle School, had created this false “Mr. Gobert” MySpace private “profile” and allowed access to it by twenty-six designated “friends,” one of whom was A.B. A.B. then made her posting about Mr. Gobert on this private “profile”. Thereafter, however, A.B. created her own MySpace “group” page, accessible by the general public, and titled with a vulgar expletive directed against Mr. Gobert and Greencas-tle schools. State’s Exhibit 2.

As a result, delinquency proceedings were initiated against AB. The amended petition alleging delinquency charged A.B. with nine counts. Three of those counts, Count II, Count VI, and Count IX, were dismissed at the fact-finding hearing. The remaining counts each allege conduct by A.B., a minor, that if committed by an adult would constitute Harassment, a class B felony pursuant to Indiana Code § 35-45-2-2(a)(4). The various surviving counts allege her use of a computer network to harass Mr. Gobert. Counts I and V allege that A.B. used a computer network to transmit the following:

“hey you piece of greencastle s* *t. what the f* *k do you think of me know (sic) that you cant [sic] control me? huh? ha ha ha guess what ill [sic] wear my f* *king piercings all day long and to school and you cant [sic] do s* *t about it.! ha ha f* *king ha! stupid b* *tard!

Appellant’s App’x at 32-4.12 Counts III and VII each allege Harassment based on A.B.’s transmission of “die ... gobert ... die;” and Counts IV and VIII are based on A.B.’s transmission of “F* *K MR. GO-BERT AND GC SCHOOLS!” Appellant’s App’x at 32-4 (expletives identified symbolically).

The offense of Harassment in the Indiana Criminal Code, includes the following:

A person who, with intent to harass, annoy, or alarm another person but with no intent of legitimate communication:
[[Image here]]
(4) uses a computer network ... or other form of electronic communication to
(A) communicate with a person; or
(B) transmit an obscene message or indecent or profane words to a person; [1226] commits harassment, a Class B misdemeanor.

Indiana Code § 35-45-2-2(a)(4) (2004).

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A.B. v. State, 885 N.E.2d 1223, 2008 Ind. LEXIS 363 (Ind. 2008).

885 N.E.2d 1223 (A.B. v. State) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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