Chance Plays by No Rules

As the winter sky slowly changes to a springtime blue – a deep vibrant color that hints at immortality – memories return. I inhale the cool morning air as I walk among trees budding with promise, and I sink into a reverie of my youth, a reflection that is painfully informed by the fact that I know the springtime sky lies.

In May 1970 the sky was an eternal blue for several days, a rare stretch for the usually cloud-covered northeastern Ohio region. On one of those glorious days of bright sunshine four students at Kent State – a mere 35 miles away – met their end amid a hail of National Guard bullets.  I was still in my teens, and I was shocked by the senseless tragedy that had occurred at a place I had visited several times.

A couple of years later in my senior year of high school we experienced another wonderful spring. There was a hint of chill in the air, not unusual given the long, harsh winters we used to have in Ohio, but the days were bright and full of sunshine and uplifting to an adolescent finally getting over a football injury and enjoying the outdoor track sessions during gym period.

I’d like to say that a classmate of mine from grade school was in that gym period because it would make this story easier to tell. But frankly I can’t remember if Joe Treberry was there or not. What I do remember about him, though, remains sharp in my memory for one day, way back in grade school, I had an encounter with Joe that changed my young life.

I was in the third grade and it was a late winter day. Nice enough to run around a black-top enclosure during our lunch break but still cold enough that we wore winter coats. For reasons I can’t remember, I got into a fight with some obnoxious kid who had provoked me. He was easy to beat, and I remember leaving him crying and sitting on his rump on the rough, cold asphalt.

The fight was quick and no one was even mildly hurt, but his pride was severely injured. So the kid complained to a bigger friend of his who came over and started another fight. I knocked his front tooth out and that ended that.

Though it might sound like a weak plot twist, the kid with the missing tooth reached out to a friend of his and he tried to settle the score. This kid wasn’t big but he was wiry and, for that age, street-wise. I bloodied his nose.

I was a bit surprised that I had won all three fights and rather easily. But I didn’t think much past that as I was only 8 years old and even though fights were rather unusual, they occurred with some frequency. Anyway, I started to play again till I noticed everyone around me had disappeared. A bunch of guys I didn’t know too well had encircled me and Joe Treberry, whom I did know, stepped forward. He was short but popular. He had a lot of friends and they were apparently going to teach me a lesson. I was scared but determined to hurt some people before they got me so I pivoted around with my fists up, making eye contact with everyone, and waited. Treberry asked me about the fights, and I just shrugged. I kept on pivoting and staring down my soon-to-be executioners when Treberry said, “Let him alone” and, just like that, the kids melted away into the playground crowds.

That escape did wonders for me. From then on I believed I could do just about anything if I approached the situation with intelligence and endurance. Years later after losing some fights and much later on after some professional and personal setbacks, I realized I could go too far with this belief, but my faith in myself was merely tempered, not scrapped.

So I had Joe T. to thank for that. And although we never became friends, we always got along until my family moved to a different school district. Years later in high school, I found out Joe was in my class. Again we weren’t tight, but I felt good occasionally seeing him because it always reminded me of that incredible day.

Then one day in the late winter of our senior year, Joe, his father, mother and sister, got into the family car and Joe drove them to Western Pennsylvania. I lived on the Ohio side of the border, not too far from the state line, and I knew the road Joe and his family were on quite well. Joe still lived in the old neighborhood in decaying Youngstown, Ohio, so I suspect he wasn’t too familiar with that highway, which was in the suburbs.

The road, a U.S. highway, was four lanes in Ohio, but only three in Pennsylvania, with the middle lane sometimes available to drivers going east and sometimes available to west-bound traffic, depending on whether you were going up or down one of the many foothills in the area.

A couple of years later I was tooling around in my Dad’s Chevy on that same three-lane road and I decided to run out the small V-8 to see what the top speed was. I hit 110, then slowly brought the car back to a more reasonable speed. Obviously I survived.

Another time I probably shouldn’t have. I was riding down the semi-rural road where I lived, with a friend at the wheel. For some reason that was never clear to me, he accelerated to 100 miles per hour, then got in the left lane as we approached a small hill about a quarter of a mile from my house. Needless to say if someone had been coming in the other direction, I wouldn’t be writing this.

So life is full of chances, the kind that can make you and the kind that can hurtle you into oblivion. For some reason I’ve been dealt the former.

But not Joe Treberry.  On that March day, he and his family didn’t arrive in New Castle, Pa., where the road ends. Instead Joe ran up the hard shoulder at highway speed, lost control, slid into the soft shoulder and crashed.

No one survived.

I sometimes wonder why he and his family, on a Sunday drive, all perished whereas I, taking very dangerous chances, lived. I don’t think too long on it, though, because there’s no point. How can you explain the various turns and twists of someone’s life?

What might have happened if Gov. James Rhodes wasn’t running for the U.S. Senate in 1970 and hadn’t felt compelled to take a tough stance on civil disobedience, would he have refrained from sending the National Guard to Kent State?

Ultimately it’s futile to speculate. All I know for sure is that one fine-looking day way back when Joe Treberry and his family died en masse underneath a sky of eternal blue.

The best I can say about it all is that when I think of Joe it is with affection, a sense of loss and gratitude. Then I put away my thoughts and continue my own drive through life.

— John F. Manser, Managing Editor

 

JuicyCampus May Sour Communication Decency Act of 1996

In the fall of 2007, college student Matt Ivester founded JuicyCampus.com, an Internet blog that allows fellow college students to anonymously post information about each other. Since its founding, the blog has created much controversy for containing hate speech, potentially defamatory and libelous statements and spreading allegedly malicious gossip about students. The student government at one college has even gone so far as to request that the site be banned.

Responding to a complaint from a student whose address had been featured on the site, the office of the New Jersey attorney general has launched an investigation into the site, recently subpoenaing its records. According to a statement, the attorney general believes the site may be violating New Jersey’s Consumer Fraud Act by suggesting that it does not allow offensive material but providing no enforcement mechanism for that rule and no way for users to report or dispute the material.

Notwithstanding the actions of the attorney general, owners and operators of Internet blogs such as JuicyCampus who publish potentially defamatory statements authored by third parties are immunized from liability by the federal Communications Decency Act of 1996. Overriding the traditional treatment of publishers, distributors and speakers under statutory and common law, Congress passed the CDA “to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services.”

JuicyCampus has already asserted its immunity under federal law, which pursuant to the Supremacy Clause, would pre-empt any New Jersey state statute. Furthermore, the CDA, itself, explicitly states that it pre-empts state law. If the attorney general challenged the immunity afforded JuicyCampus under the CDA, the issue would have to be litigated in the 3rd U.S. Circuit Court of Appeals, which on previous occasions has interpreted the CDA as immunizing Internet blog owners and operators from any cause of action that would make them liable for solely publishing information provided by a third-party user of their service. In Green v. American Online, Inc., 318 F.3d 465 (3d Cir. 2003), cert. denied, 540 U.S. 877 (2003), American Online was sued by one of its customers for allegedly refusing to take action against other customers who, in impersonating him in an AOL “chat room,” solicited gay sex and falsely claimed he was bisexual. In holding AOL immune from liability, the 3rd Circuit interpreted the CDA as precluding “courts from entertaining claims that would place a computer service provider in a publisher’s role, and therefore bars lawsuits seeking to hold a service provider liable for its exercise of a publisher’s traditional editorial functions — such as deciding whether to publish, withdraw, postpone, or alter content.”

Although Congress acted to keep government regulation of the Internet to a minimum, it nevertheless did not provide absolute immunity to Internet users and Web site operators. Information content providers remain liable when they are “responsible, in whole or in part, for the creation or development of information” for publication. The distinction between merely publishing information provided by a third party as an interactive computer service and actually being responsible for creating or developing any of the information posted as an information content provider was and continues to be critical to the determination of whether the CDA provides a safe haven for blog owners and operators such as JuicyCampus.com. If the attorney general can demonstrate that JuicyCampus is somehow “responsible, in whole or in part” for the creation of the offensive content, she may be successful in creating a potential exception to immunity pursuant to the CDA. 

Natalie Klyashtorny, Esq.
Nochumson P.C.
www.nochumson.com