The First Amendment in Cyberspace - Unit 4
Eric B. Easton, University of Baltimore School of Law

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Limits to First Amendment Rights (A)


Now that we've seen that speech on the Internet is accorded full First Amendment protection, even when that speech is considered "low value," we need to explore the limits of that shield. In U.S. v. Alkhabaz (better known as Jake Baker), the courts had to consider whether the speech in question constituted a "true threat" and was, therefore, unprotected by the First Amendment. The District Court held that the speech was not a true threat, and the Sixth Circuit affirmed, so neither explored the First Amendment issue. Judge Krupansky, dissenting, discussed the First Amendment question more thoroughly.


United States v. Abraham Jacob Alkhabaz
104 F.3d 1492 (6th Cir. 1997)


Martin, C.J. Claiming that the district court erred in determining that certain electronic mail messages between Abraham Jacob Alkhabaz, a.k.a. Jake Baker, and Arthur Gonda did not constitute "true threats," the government appeals the dismissal of the indictment charging Baker with violations of 18 U.S.C. 875(c).

From November 1994 until approximately January 1995, Baker and Gonda exchanged e-mail messages over the Internet, the content of which expressed a sexual interest in violence against women and girls. Baker sent and received messages through a computer in Ann Arbor, Michigan, while Gonda - whose true identity and whereabouts are still unknown - used a computer in Ontario, Canada.

Prior to this time, Baker had posted a number of fictional stories to "alt.sex.stories," a popular interactive Usenet news group. Using such shorthand references as "B&D," "snuff," "pedo," "mf," and "nc," Baker's fictional stories generally involved the abduction, rape, torture, mutilation, and murder of women and young girls. On January 9, Baker posted a story describing the torture, rape, and murder of a young woman who shared the name of one of Baker's classmates at the University of Michigan.

On February 9, Baker was arrested and appeared before a United States Magistrate Judge on a criminal complaint alleging violations of 18 U.S.C. 875(c), which prohibits interstate communications containing threats to kidnap or injure another person. The government made the complaint based on an FBI agent's affidavit, which cited language from the story involving Baker's classmate. The Magistrate Judge ordered Baker detained as a danger to the community and a United States District Court affirmed his detention. Upon Baker's motion to be released on bond, this Court ordered a psychological evaluation. When the evaluation concluded that Baker posed no threat to the community, this Court ordered Baker's release.

On February 14, a federal grand jury returned a one-count indictment charging Baker with a violation of 18 U.S.C. 875(c). On March 15, 1995, citing several e-mail messages between Gonda and Baker, a federal grand jury returned a superseding indictment, charging Baker and Gonda with five counts of violations of 18 U.S.C. 875(c). The e-mail messages supporting the superseding indictment were not available in any publicly accessible portion of the Internet.

On April 15, Baker filed a Motion to Quash Indictment with the district court. In United States v. Baker, 890 F. Supp. 1375, 1381 (E.D. Mich. 1995), the district court dismissed the indictment against Baker, reasoning that the e-mail messages sent and received by Baker and Gonda did not constitute "true threats" under the First Amendment and, as such, were protected speech. The government argues that the district court erred in dismissing the indictment because the communications between Gonda and Baker do constitute "true threats" and, as such, do not implicate First Amendment free speech protections. In response, Baker urges this Court to adopt the reasoning of the district court and affirm the dismissal of the indictment against him.

Neither the district court's opinion, nor the parties' briefs contain any discussion regarding whether Baker's e-mail messages initially satisfy the requirements of Section 875(c). For the reasons stated below, we conclude that the indictment failed, as a matter of law, to allege violations of Section 875(c). Accordingly, we decline to address the First Amendment issues raised by the parties.

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Krupansky, Circuit Judge, dissenting. The panel majority has ruled that an interstate or international "communication containing any threat" to kidnap or injure another person is criminalized by 18 U.S.C. 875(c) only when the subject communication was conveyed with the general intent "to effect some change or achieve some goal through intimidation." The majority concludes that because the instant indictment alleges only communications purportedly intended to foster a perverse camaraderie between the correspondents, rather than "to effect some change or realize some goal through intimidation," the indictment must be dismissed because each count fails to allege an essential element of a section 875(c) charge. Because the majority has intruded upon Congressional prerogatives by judicially legislating an exogenous element into section 875(c) that materially alters the plain language and purpose of that section and ignores the prevailing precedents of the Supreme Court and this circuit, I respectfully dissent from the majority's decision.

* * *

Because the communications charged against Baker could be found by a rational jury to constitute "threats" within the ambit of 18 U.S.C. 875(c), the district court's resolution that a rational jury could not find that any of these communications comprised constitutionally unprotected "true threats" is ripe for review. The Supreme Court has recognized that, while the First Amendment extends varying degrees of protection against government censure to most forms of expression (with political speech receiving the most stringent safeguards), certain forms of speech are deemed unworthy of any constitutional protection and consequently may be criminalized. A "threat" is a recognized category of expression which warrants no First Amendment protection. However, only communications which convey "true threats" (as opposed to, for example, inadvertent statements, mistakes, jests, hyperbole, innocuous talk, or political commentary not objectively intended to express a real threat) are "threats" outside the embrace of the First Amendment's guarantees.

In Watts v. United States, 394 U.S. 705 (1969) (per curiam)], the Court announced that "threats" against the President were obviously proscribable, but also recognized that, as "pure speech" which may be imbued with protected political commentary, such ostensibly minatory speech must be assessed for its true nature - that is, whether it constituted mere political commentary or hyperbole, which was protected, or constituted a "true threat," which is not protected. Watts had stated at a public rally that he would not willingly submit to the draft but, if forced to carry a rifle, "the first man I want to get in my sights is L.B.J." The Court instructed that this statement, in its factual context, was not a "true threat" which could be constitutionally prosecuted, but instead was mere "political hyperbole" immunized by the First Amendment.(1)

Consequently, a communication which an objective, rational observer would tend to interpret, in its factual context, as a credible threat, is a "true threat" which may be punished by the government. The majority's disposition notwithstanding, logic dictates that any objectively credible representation of an intent to harm someone should be considered both a "threat" by the statement's originator, as well as a "true threat" beyond the scope of the First Amendment's free speech guarantees.(2)

The majority's disposition leads to absurd results where, as in the case at bench, minacious communications have been made which may satisfy the constitutional "true threat" standard because a reasonable jury could find that those communications contained believable expressions of an intention to injure a person, yet those same communications are nonetheless deemed beyond the reach of 18 U.S.C. 875(c) as not constituting "threats" as a matter of law, merely because the subject communications were not made with the intent to realize a specific purpose through intimidation. Although Congress, via section 875(c), clearly intended to punish every credible interstate or transnational expression of an intent to kidnap or injure another person, the majority's legally erroneous unduly restrictive interpretation of the word "threat" as used in section 875(c) effectively divests Congress of its constitutional lawmaking authority by artificially confining the intended scope of section 875(c) to a degree not compelled by the First Amendment.

Accordingly, in order to prove a "true threat" proscribed by 18 U.S.C. 875(c) and unprotected by the First Amendment, the prosecution must evidence to a rational jury's satisfaction only the following: (1) that the defendant transmitted the subject communication in interstate or foreign commerce, (2) that the communication contained a threat, (3) that the threat was one against the physical safety or freedom of some individual or class of persons (irrespective of the identity of the person or group threatened, the originator's motivation for issuing the threat, or the existence or nonexistence of any goal pursued by the threat), and (4) that the subject communication in its factual context would lead a reasonable, objective recipient to believe that the publisher of the communication was serious about his threat (regardless of the subjective intent of the speaker to make an actual threat or whether anyone actually felt frightened, intimidated, or coerced by the threat).

Finally, the facts of the instant case justify reversal and remand because they even satisfy the judicially legislated edict articulated in the majority opinion. Assuming arguendo that a threat under 18 U.S.C. 875(c) requires a general intent by the speaker to attain some result or change through intimidation (which it does not), a rational jury could conclude that this element was proved in this case. By publishing his sadistic Jane Doe story on the Internet, Baker could reasonably foresee that his threats to harm Jane Doe would ultimately be communicated to her (as they were), and would cause her fear and intimidation, which in fact ultimately occurred. The panel majority may casually conclude within the security of chambers that Baker's threats conveyed to Jane Doe in his articles published on the Internet were nonintimidating. However, Jane Doe's reaction to those threats when brought to her attention evinces a contrary conclusion of a shattering traumatic reaction that resulted in recommended psychological counseling.

A jury in the instant case could reasonably infer, in the light of all the evidence, that Baker intended the foreseeable, natural, and ordinary consequences of his voluntary actions. Indeed, a rational jury could infer that the reason Baker published his Jane Doe story featuring the actual name of a young woman was the probability that its threats would be communicated to her and cause her to suffer fear, anxiety, and intimidation. Moreover, the e-mail correspondence between Baker and Gonda evidenced overt acts of a conspiracy to violate 18 U.S.C. 875(c) in that the two men clearly agreed at the least to threaten, and otherwise implement their conspiracy by intimidating, one or more women or young girls with physical harm as discussed in their plans.

Accordingly, I would reverse the district court's judgment which dismissed the superseding indictment as purportedly not alleging "true threats," and remand the cause to the lower court. I dissent.

Footnotes

1. The Supreme Court has recognized that the considerations which remove threats of violence outside the reach of the First Amendment apply with "special force" to threats which menace the President. Manifestly, the public has a greater countervailing interest in the security of the President than in the safety of an ordinary citizen. On the other hand, threats against the President are often accompanied by political commentary, which is jealously guarded by the First Amendment. By contrast, threats against private individuals are typically devoid of political content and hence should be accorded less stringent First Amendment protection.

2. Accordingly, the district court's adoption of the stringent "true threat" legal standard promulgated by the Second Circuit in United States v. Kelner, 534 F.2d 1020 (2nd Cir.), cert. denied, 429 U.S. 1022 (1976), which the majority herein did not have occasion to address, should be rejected. The Kelner test commands that a threat must be "unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution," both on its face and in its context, to qualify as a constitutionally proscribable "true threat." The Sixth Circuit has refused to adopt this standard, which, for the reasons developed in this dissent, unjustifiably constrains, to a degree not demanded by the First Amendment, the authority of Congress to punish threats. Rather, contrary to the lower court's conclusion, every communication conveying an intention to kidnap or injure any person sent in interstate or foreign commerce which would appear to an objective, rational recipient to be a statement of a serious intent to commit the harms menaced is constitutionally prosecutable.

In Planned Parenthood v. ACLA, the court confronted a similar issue, but with a very different outcome. Planned Parenthood of the Columbia/Willamette, Inc., the Portland Feminist Women's Health Center, and individual physicians who performed abortions at their clinics, brought a lawsuit for injunctive relief and damages under the Freedom of Access to Clinics Entrances Act (FACE), 18 U.S.C. 248, against the American Coalition of Life Activists and individual members. Among other allegations, the plaintiffs said the defendants' Web site, known as the "Nuremberg Files," violated the act by threatening abortion providers with bodily harm or death.

One of the most damning exhibits in the plaintiffs' case was a graphic list of names and personal information on abortion providers, clinic employees and clinic owners, law enforcement officials involved in securing access to abortion services, judges, politicians, and abortion rights supporters. The names of doctors and clinic workers and security personnel who had been killed during attacks on abortion clinics are listed in the Nuremberg Files with strikes through their names, those wounded were shaded in gray.

Following a jury trial that resulted in verdicts against all the defendants, U.S. District Judge Robert E. Jones considered the defendants' First Amendment defense.

Planned Parenthood v. American Coalition of Life Activists
41 F. Supp. 2d 1130 (D. Ore. 1999)

Conclusions of Law

456. From my independent review of the evidence produced at trial, from which I have made the above findings of fact, I conclude that plaintiffs have proven with clear and convincing evidence that each defendant, acting independently and as a co-conspirator, prepared, published and disseminated the Deadly Dozen poster, the Poster of Dr. Robert Crist and the Nuremberg Files.

457. I find that each defendant acted with specific intent and malice in a blatant and illegal communication of true threats to kill, assault or do bodily harm to each of the plaintiffs and with the specific intent to interfere with or intimidate the plaintiffs from engaging in legal medical practices and procedures. The term "threaten" as used hereafter incorporates this definition.

458. I totally reject the defendants' attempts to justify their actions as an expression of opinion or as a legitimate and lawful exercise of free speech in order to dissuade the plaintiffs from providing abortion services.

459. The Freedom of Access to Clinic Entrances Act (FACE), 18 U.S.C. 248, provides that in an action brought by a "person aggrieved" by threats of force, "the court may award appropriate relief, including temporary, preliminary, permanent injunctive relief and compensatory and punitive damages, as well as costs of suit and reasonable fees for attorneys...." 18 U.S.C. 248(c)(1)(B). In its verdict, the jury found each defendant liable under FACE and awarded each plaintiff compensatory and punitive damages against each defendant.

460. FACE provides this Court with express statutory authority for injunctive relief, and the substantial evidence of continuing harm to plaintiffs from defendants' unlawful threats provides clear factual and equitable bases for issuance of an injunction. In light of that authority, the general equitable authority of the Court, and the Court's findings concerning the grave threat to each plaintiff's security and the likelihood of continuing harm from each defendant, on February 25, 1999, I issued a permanent injunction enjoining defendants from continuing their unlawful threats that place plaintiffs' lives in peril, and binding the defendants' agents, and those persons in active concert or participation with them. I now enter this amended order and permanent injunction, nunc pro tunc February 25, 1999.

461. Plaintiffs are entitled to permanent injunctive relief because they lack an adequate remedy at law. Each day, plaintiffs' lives and security are endangered because of defendants' unlawful threats against them. Monetary relief alone cannot address that harm. This Court has, therefore, the obligation to fashion equitable relief to protect the plaintiffs rights.

462. In deciding whether to grant permanent injunctive relief, the Court considers the balance of hardships or equities - weighing on one hand the harm to plaintiffs if the Court declines to prohibit the defendants' threats, and on the other hand the harm to defendants from an injunction ordering them to cease these activities. I find that the balance of hardships weighs overwhelmingly in plaintiffs' favor. In the absence of an injunction, plaintiffs will continue to live as they did before the trial: clad in bulletproof vests and disguises, borrowing cars and varying routes to avoid detection, and constantly in fear of the bodily harm with which they have been threatened.

463. By contrast, the prohibition of unlawful activities imposes no burden on defendants. Defendants may protest abortion using legitimate, lawful means.

464. The scope and terms of an injunction are determined by the extent of the underlying violation. This Court possesses great discretion in crafting an injunction and may frame it to "bar future violations likely to occur."

465. The law requires a higher level of scrutiny and proof for an injunction involving speech than for an award of damages for violation of a statute. I find the actions of the defendants in preparing, publishing and disseminating these true threats objectively and subjectively(3) were not protected speech under the First Amendment. Therefore, the Court issues the following permanent injunction against each defendant, their agents and those in active concert or participation with them, and specifically against Paul DeParrie, an employee and agent of defendant Advocates for Life Ministries, who conspired with Neal Horsley of Carrollton, Georgia, to provide the specific information for the Nuremberg Files and who thereafter obstructed justice by destroying or assisting in concealing the materials he provided to Horsley to convert into true threats on his web site.

Now, therefore, it is hereby ordered, adjudged, and decreed as follows:

Permanent Injunction

1. Under the equitable powers of this Court and the Court's authority granted under the Freedom of Access to Clinics Entrances Act, 18 U.S.C. 248, defendants * * * and their agents and all persons in active concert or participation with any of them who receive actual notice of this Order and Permanent Injunction or the "Notice" attached as Exhibit A to this Order, are hereby immediately and permanently enjoined and restrained from committing any of the following acts or aiding, abetting, directing or facilitating others to commit or conspiring with any others to commit the following acts:

(a) Threatening, with the specific intent to do so, [the plaintiffs], or any of their family members, officers, agents, servants, employees, patients, or attorneys, in violation of the Freedom of Access to Clinics Entrances Act, 18 U.S.C. 248;

* * *

(d) Providing additional material concerning [the plaintiffs], or any of their family members, officers, agents, servants, employees, patients, or attorneys, with a specific intent to threaten, to the Nuremberg Files or any mirror web site(4) that may be created. In addition, defendants are enjoined from publishing, republishing, reproducing and/or distributing in print or electronic form the personally identifying information about plaintiffs contained in Trial Exhibits 7 and 9 (the Nuremberg Files) with a specific intent to threaten.

Footnotes

3. For purposes of this Order and Preliminary Injunction, I consider a person to make a "true threat" when the person makes a statement that, in context, a reasonable listener would interpret as communicating a serious expression of an intent to inflict or cause serious harm on or to the listener (objective); and the speaker intended that the statement be taken as a threat that would serve to place the listener in fear for his or her personal safety, regardless of whether the speaker actually intended to carry out the threat (subjective).

4. A "mirror web site" within the meaning of this Order means a web site created by an independent party who takes the content from a web site and reproduces it on his or her own computer and locates it at a different Internet address.

Notes to Unit 4

1. Based on Judge Krupansky's description of the majority's rationale, would the outcome of this case have been different if Baker had been tried for posting his Jane Doe story to a Usenet newsgroup or a page on the World Wide Web? Does Judge Krupansky's characterization of Jake Baker's e-mails concerning Jane Doe as "publishing... on the Internet" suggest a misunderstanding of the various functions that the Internet can serve?

2. In their electronic correspondence, Baker and Gonda gleefully discussed a contemporaneous case of kidnapping, sexual torture, and murder in Canada. The first trial in that case was shrouded by a publication ban imposed by the trial court at the Crown's request, but the ban was sabotage by students and others who published forbidden details (along with a lot of false rumors) on the Internet. The case is believed to have prompted the Supreme Court of Canada to recognize the impact of computer-assisted communications on the effectiveness of publication bans and to cut back the power of judges to impose them. See Eric B. Easton, Sovereign Indignity? Values, Borders and the Internet: A Case Study, 21 Seattle U. L. Rev. 441 (1998).

3. The Nuremberg Files site was intensely political; if it had been found to be pure speech, rather than the verbal act called a "true threat," it would have qualified for the highest level of protection accorded to speech by the First Amendment. In order to suppress or punish speech in the same vein, the government would have to prove that defendants' (a) intended to cause imminent lawless action, and (b) such action would be likely to occur. Brandenburg v. Ohio, 395 U.S. 444 (1969). Could the site have been enjoined under that standard?

4. A Web site sponsored by a British group called Internet Freedom was still mirroring the Nuremberg Files site as this module was being prepared. This is what they say about it:

Why We Must Defend This Repugnant Site

Chris Ellison, Internet Freedom

As a committed civil rights campaigner for over ten years now, I am completely opposed to any restrictions on the rights of women to terminate pregnancies. The attempts by anti-abortion campaigners to prevent this through physical attacks on doctors including bombing and arson fills me with rage.

However the recent court judgement in Oregon USA which imposed a $108m fine as a consequence of an anti-abortionist website represents not a victory for freedom but a defeat. The website - The Nuremberg Files - features the names and addresses of doctors who carry out abortions, some of whom have already been killed. The justification given for the ruling was that the site represented a "true threat by one or more of the defendants to do bodily harm, assault or kill any of the plaintiffs".

It is true that doctors' fear of violence and intimidation has seriously undermined the ability of women to exercise their right to obtain abortions in the US. Fewer and fewer doctors are available to carry out this procedure. The physical threat that abortion doctors face in the US is very real. However, the threat posed by the Nuremberg Files website is not.

There is no evidence that the defendants intended to carry out attacks on the doctors. Indeed if there had been, there would be little reason to focus attention on their anti-abortionist site. There is also no evidence that the defendants conspired with others with intent to attack anyone. No relationship has been established between the defendants and anyone else thought to have attacked or planned an attack on doctors.

The fact of the matter is that the only connection between the Nuremberg Files and attacks on doctors is that both perpetrators are opposed to abortion. The ruling, however, equates this belief with actual acts of violence. The expression of certain beliefs is taken to immutably cause certain acts. It is this equation that has led many commentators to weigh up the rights of women against the rights of others to free speech, ending up in support of the former and against the latter. Under this view, the right to free speech should not extend to the anti-abortionists behind the Nuremberg Files website.

* * *

The truth is that free speech lies at the heart of any defence of democratic rights. The belief that restricting what people express will somehow restrict what people do (and thus will stop attacks on doctors) is sadly mistaken. Thus it is that those who value free speech must defend this repugnant site. There is nothing to be gained by giving up one freedom in the vain hope that it will secure another.

Take a look at the mirror site at http://users.globewide.com/ifreedom. Do you think it constitutes a "true threat"? (WARNING: There may be images on this site that you might find offensive or upsetting.)

5. The controversy over what constitutes a "true threat," and thus lies outside the protection of the First Amendment, is by no means limited to Cyberspace. See Rice v. Paladin, 128 F.3d 233 (4th Cir. 1997).

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