The question raised by this prosecution (and in the TalkLeft posts) isn't whether Lori Drew acted appropriately. Her immature desire to spy on a neighboring child on behalf of her daughter apparently evolved into a malicious desire to wound the girl with a venomous message. Some of our readers considered her behavior monstrous; none held her faultless. According to her lawyer, Drew had to leave Missouri because she became “an internet punching bag for almost three years” having been “tried, convicted and lynched by bloggers.” While some commenters to my previous writings about Drew's case would have been happy with a blog lynching, Drew's character and the morality of her conduct were not the subject of my posts. Feel free to attend lynchings at other blogs.

Nor was the question whether the vague notion of "cyber-bullying" should be a federal or state crime. The difficulty of drafting a "cyber-bullying" law that punishes speech raises significant First Amendment questions. While that issue is worthy of extended discussion, it is beyond the scope of my posts.

The posts instead focused on O'Brien's willingness to punish "cyber-bullying" by charging Drew with computer crimes that have nothing to do with bullying. "Unauthorized access" to a computer generally refers to hacking, password theft, or other means of accessing data on a computer without the permission of the computer's owner. As Judge George Wu ruled, it doesn't mean telling a lie on a MySpace profile.

“It basically leaves it up to a website owner to determine what is a crime,” said Wu on Thursday, echoing what critics of the case have been saying for months. “And therefore it criminalizes what would be a breach of contract.”

Judge Wu's ruling generated this startling response from O'Brien:

"We call it cyber-bullying and we don't have a law to address it," he said at a news conference.

That's exactly the point. O'Brien charged Drew with a crime she didn't commit by giving a "novel" interpretation to a statute that just didn't apply to Drew's conduct -- all because he wanted to punish her for bad acts that "we don't have a law to address." It's up to legislatures, not prosecutors, to create new laws to address novel situations.

O'Brien still refuses to acknowledge how reprehensible his conduct was.

“I’m proud of this case …. and this team [of prosecutors],” he said, even though using the CFAA to prosecute Drew “was a risk.” He added that his office “will always take risks on behalf of children.”

The "risk" was that Drew would be convicted of a crime she didn't commit. However important might be the need to protect children from "cyber-bullying," O'Brien risked offending the Constitution by seeking punishment for a nonexistent crime.

The prosecution was nonetheless applauded by many of our commenters. They shared the belief that Drew's bad behavior deserves punishment and brushed aside the inconvenient fact that Drew didn't actually commit a crime. We can't sacrifice the Constitution to protect children any more than we can sacrifice the Constitution to protect the nation from terrorism. Our pride in being a nation of laws depends upon our willingness to respect the law, not to pervert the law to satisfy our immediate desire for safety or punishment.

Whatever you think of Drew, Judge Wu did the right thing.