Florida Judge Upholds Conviction By Defining "Email" To Include IMs

Bennett Haselton writes "The Florida Supreme Court has upheld the conviction of Michael Simmons, who sexually a solicited a 13-year-old girl (really a sheriff's deputy) via instant messages. What was unusual about this case was that he was convicted under a Florida 'harmful to minors' law that was specifically written to cover only e-mail."

Simmons was also convicted under a different law against luring a minor via the Internet, and there seems little doubt that he violated that law. But the harmful to minors law is separate; it prohibits "transmission" of data that is "harmful to minors", and includes the clause: "(b) 'Transmit' means to send to a specific individual known by the defendant to be a minor via electronic mail."

I think that how one reacts to this decision is basically a litmus test for how much one cares about the rule of law. The state legislature obviously would have included instant messages in the statute if they'd thought about it at the time, especially if they thought that someone would later try to use that as a loophole to escape conviction. And if Simmons had gotten off, the legislature almost certainly would have amended the law to include instant messages. But it's hard to argue with the fact that the law as written was limited to e-mail, and did not cover the instant messages that Simmons sent.

Justice Peggy Quince, writing unanimously for the Supreme Court, acknowledged this objection but answered it by arguing, "To the extent that the term 'electronic mail' is not sufficiently defined by the statute, we interpret it as including both email and instant message communications sent to a specific individual." But what was her basis for saying that "electronic mail" was not sufficiently defined in the first place? She also wrote in a footnote on page 11, "We agree with the First District's interpretation of 'electronic mail' as including both email and electronic mail sent by instant messaging." The phrase "electronic mail sent by instant messaging" sounds like something Ted Stevens would say.

But Justice Quince won't be subject to the same ridicule as Ted Stevens, and she knows it. It's not as if many people will come forward to criticize the court's decision, only to be attacked with cries of "Either you're with us, or you're with the terrori -- I mean, the child molesters!" However, she could have taken a stand in favor of the rule of law, by saying that Simmons clearly didn't violate the law against transmitting harmful to minors material by e-mail, and if the legislature wants the law to cover IMs, they have to go back and change it. (It's not as if he'd walk away with a clean record, since he'd still have a conviction for luring a minor for sex.) It is discouraging that neither the District Court nor any of the judges on the Florida Supreme Court chose to take that stand.

Ironically, this court decision may partly help the ACLU and other groups when they challenge other state laws that prohibit the communication of certain types of material "by e-mail" -- they could argue that the definition of "e-mail" is unconstitutionally vague. If the judge peers down at them and says "What the hell are you talking about? Everybody knows what e-mail is", the ACLU can argue, "Not necessarily. The Florida Supreme Court thinks that it includes instant messages. And, Your Honor, since judges are the wisest beings in the universe, if even they can't figure it out, what chance do the rest of us have?"

Comments

Yea that sucks...

[GlobalMind]

This is one of the reasons I thought about turning to a law profession, focusing on technology issues.

As we can see from a few posts already the "you're with us or..." folks the OP indicated, are indeed present. However, as I see it you really do have to look at the greater good.

There is no question in my mind that the dude is scum, I think we'd agree there. However, it is up to the state to put a good case together to convict. There are plenty of laws written where we have to look at the spirit of the law vs the letter of the law. This is a very significant point.

In this case, the defense could have and likely did indicate that IMs are not electronic mail. They would also be entirely correct, or at best they can challenge that the term is vague. Personally I do not believe that the term is entirely vague, but from a legal perspective could use a bit more clarity to be sure we get at what we mean. They could have, and likely should have said "electronic means" which would indeed cover both e-mail and IM. It would also include blogs, phone, whatever.

I do wish the absolutist folks would take a chill pill on these things and see it for what it is. We can't just go around saying "all or nothing" it doesn't work that way. Law doesn't work that way in particular. Justices are indeed there to interpret what the legislature has passed, and so there is some degree of latitude on some things but when we're in this type of deal, they're setting precident, and that means quite a lot in law.

If this scumbag really should not have been convicted on that first charge based on the letter of the law. However, the justice setting precident that email includes IM can be dangerous. The answer should be to the legislature, you need to go re-write this law.

K.