Abusing Electronic Communication and the First Amendment:

Combating Electronic Harassment, Threats and Cyberstalking

Daniel G. Pinegar

University of Iowa – College of Law (2001)

I. INTRODUCTION………………………………………………………………………..1

A) Conventional Harassment & Threats……………………………………………..2

B) Electronic Harassment, Cyberstalking & Threats ………………………………..4

C) The Jake Baker case………………………………………………………………6

II. STATUTORY UNDERPINNINGS OF ELECTRONIC HARASSMENT, CYBERSTALKING & THREATS………………………………………………………9

A) Interstate Communications: 18 U.S.C. § 875(c)……………………… 9

(1) The Actus Reus………………………………………………………….10

(2) The Threat……………………………………………………………….11

(3) The Mens Rea……………………………………………………………15

B) Communications Decency Act: 47 U.S.C. §§ 223 ……………………15

C) A Survey of Other Federal Statutes……………………………………………...17

(1) Distribution of Explosive Materials --

18 U.S.C. § 844(e)……………………………………………………….17

(2) Interstate Stalking -- 18 U.S.C. § 2261A………………………………...18

(3) Harassment of a Victim -- 18 U.S.C. § 1514…………………………….19

(4) The Model Penal Code…………………………………………………...19

D) Sample State Statutes…………………………………………………………….20

III. CONSTITUTIONAL DILEMMAS OF ELECTRONIC "SPEECH"…………………...22

A) U.S. v. Watts & the "True Threat" Doctrine……………………………………..22

B) The World of the Ever Shifting Debate………………………………………….27

IV. CONCLUSION………………………………………………………………28

I. INTRODUCTION

Ever since man developed its language skills, individuals have used that ability to communicate to harass and threaten others. The advent of various technologies and electronic communication will only expand the scope of harassment, threats and stalking. Indeed, electronic harassment, threats, and cyberstalking may well be “the crime of the 21st century.”[1] With an increasing 90 million people in the U.S. who log onto the Internet, the criminals of yesterday likewise will increasingly ride the wave into tomorrow.[2] Nearly 30 percent of the complaints to the “Web Police” in 1998 involved harassing or threatening electronic mail (e-mail), a three-fold increase over the reports from 1997.[3] Despite any Constitutional or First Amendment protections,[4] with just a simple click of a button,[5] an e-mail can become a surgical attack on an individual, class of persons, or location.[6] The damage will already be done. Increased anecdotal reporting by the media suggests that the medium is becoming merely another stage to harass, stalk, or threaten.

A student can leave a bomb threat about his school in an Internet chat room,[7] or, after traditional violence, a copy-cat can send an instant message implying continued violence.[8] An employee can harass his employer.[9] A racist can send death threats through e-mails.[10] An estranged lover[11] or fan of a celebrity can virtually maul another with cyberstalking.[12] One’s family can be threatened.[13] A person can threaten harm to a building or roadway.[14] While persons can write obscene rape fantasies and post them on bulletin boards,[15] threatening to act on them,[16] or encouraging others to act on them.[17] Simply, any threat or harassment scenario can be duplicated or intensified in the electronic sphere. In one survey of college women[18] who reported they were stalked in an academic year, 24.7 percent were stalked electronically by e-mail.[19] As a result of the abuse of new electronic communications, in major cities like New York and Los Angeles, police and district attorneys have formed special technology stalking and threat assessment teams who estimate an even higher percentage of their caseloads involve “cyberstalking-type cases.”[20]

Unfortunately, both the victim’s and law enforcement already face steep learning curves. Victims suffer because the anonymity that the early information age and items like e-mail affords people[21] allows these suspect behaviors to only increase, causing greater alarm, fear, and manipulation.[22] Likewise, because of a more wary social climate and the easily recorded nature of an electronic transmission,[23] police and authorities will more frequently be urged by the victims to act in areas that require fine lines to be drawn between Constitutional freedoms and illegal activities in areas that many in the police community still do not treat as “credible threats” [24] or within their jurisdiction.[25] As a result, the concern with this “crime”[26] and the challenges it presents[27] will only continue to grow.[28]

In an effort to aid prosecutors in combating these allegedly illegal actions, this note will examine an array of state and federal statutes that many prosecutors have used with varying degrees of success. In addition to these statutes, this note will examine the relationship of punishing any electronic harassment, threat or cyberstalking ‘episode’ in light of the difficult constitutional analysis of the First Amendment and the “true threat” doctrine. Finally, even if the prosecutor can theoretically satisfy both the statutory and constitutional burden to convict, it is important to recognize that electronic evidence is still causing practical evidentiary problems in the courtroom.[29]

Like any problem that migrates into a new medium, confused reactions to it often negate the ease with which it can be addressed. Although there have been a few attempts at describing the issue of what occurs when threats and harassment move into electronic mediums of communication,[30] while providing rich sources and examples, none has adequately discussed the gamut of criminal statutes available to combat the problems of electronic harassment, threats and cyberstalking nor adequately segregated these three legal problems.[31]

A) Conventional Harassment and Threats

At the analytical level, it is important to distinguish harassment from threats. Depending on the definition contained in the particular statute,[32] harassment can include any words, actions or gestures that tend to annoy, alarm or verbally abuse another person.[33] Varied definitions of harassment result in either a broader or narrower categorization of punishable speech.[34] Unlike harassment, threats are more than just annoyances.[35] Black’s Law defines a threat as a “communicated threat to inflict physical or other harm on any person or on property” – the emphasis usually being physical in nature.[36] While Merriam-Webster defines “threaten” as “to announce or forecast impending danger or evil.”[37] Simply, threats should be treated as more serious because of the objectifiable nature of potential future action on them.

Threats can be classified into three groups: (1) direct/explicit, (2) wholly indirect/implied, or (3) indirect but accompanied by other evidence. The most easily prosecuted threat is an explicit declaration – “I will kill you.”[38] For example, an anti-Semitic death threat sent by a student to his Jewish science teacher clearly falls in the first explicit category.[39] The indirect threat or a threat made in jest yet heard and reported out of context are the most difficult to prosecute. Of course, between the two extremes lies the spectrum of threats that prosecutors must weigh a variety of factors before prosecuting because of the Constitutional protections afforded to speech. The key is the declarant's intent. Should corroborating evidence such as a prior act or pattern of actions demonstrate that the person making the threat intended it or is likely to follow through, then the scale of a likely prosecution should slide upward toward conviction because the level of protection that the speech is given slides downward.[40]

The law on communications threatening physical violence began to change in the 1930s following the kidnapping of the Lindbergh baby and the use of the U.S. mail to communicate the kidnapper’s demands and threats.[41] Congress enacted and has since amended 18 U.S.C. Section 875 – Interstate Communications.[42] In addition to satisfying the statutory elements of Section 875, however, to constitute a criminally punishable threat under the Constitution it must also be a “true threat.”[43] In United States v. Watts, [44] the Supreme Court established this standard stating that, “what is a threat must be distinguished from what is constitutionally protected speech.”[45] Arguably, however, because of the factual dissimilarity between Watts, laced with political speech in a 1960s protest,[46] and expanded requirements of the “true threat” doctrine beyond political hyperbole by some circuits, the scope of the true “true threat” doctrine must be called into question.[47]

Although in the notoriously publicized case of U.S. v. Jake Baker,[48] the court relied on the “true threat” doctrine to acquit Baker[49] I argue that the “true threats” doctrine should not be applied with its former stringency to electronic forms of harassment or threats but limited to political discourse containing threats. Instead, any electronic threat must be assessed for safety purposes in the light of contemporary community standards. Justice Stevens has recently supported this initial assessment in questioning whether a “true threat” doctrine even exists in application to electronic harassment or threats.[50]

B) Electronic Harassment, Cyberstalking & Threats

What makes electronic communication useful is that it turns a world of individual resources and information into a simultaneous web of resources and information. Whereas once you had a few means of information gathering, now you have millions. But on the other hand, whereas once you could get untangled from a few lines of information, now you have millions.[51] Thus, a person can mask his identity by connecting to the web and through a variety of relay nodes, information servers, and re-mailers, protect their identity while still reaching their target.[52] After all, it was this principle of redundancy that the Department of Defense necessarily sought to preserve in creating ARPANET.[53] But if you want to make a telephonic threat you cannot make a phone call and easily connect to another phone to mask your identity while still contacting your target.[54] The best one can do simply using the phone is to alter one's voiceprint, block one's name on the recipient’s caller id unit, or enact a line-modifier that would indicate the call is coming from elsewhere.[55] But these methods would not stop law enforcement from either finding or prosecuting perceived serious cases.[56] Hence, electronic communications can be much more potent.

Although the words behind a harassing statement or threat may be the same regardless of the medium, the precise form that the statement takes in the medium of the Internet is important.[57] Generally, these statements are either private communications[58] or public communications.[59] For instance, although the context and circumstances of any statements must always be analyzed, an implied threat of “I wish I could kill you” may have a different meaning depending on its form: whether it is sent in a private e-mail, instant message or posted more publicly.[60] Indeed, “flaming in private [e]-mail may be the equivalent of illegal telephone harassment, while flaming in a public news group or discussion board may be defamatory.”[61] Although each medium has its own quirks, and may be scrutinized differently, without a doubt e-mail has become the predominant medium abused by the cyber attacker.

What e-mail does, however, is that psychologically it provides the sender with the sense that “there will be no ‘real world’ consequences” and that anonymity is be virtually guaranteed.[62] Indeed, “people park their inhibitions when they get online.”[63] At the same time, although it may be harder to trace a sender or e-mail, the mere medium used does not affect the result achieved from the harassing or threatening electronic communication.[64] As a result, prosecutors must be aware of both (1) the anatomy of an e-mail[65] and (2) how the electronic medium and the message are governed by current law.

First, every e-mail that a person sends and receives has two important components: (a) what the reader and sender can see, and (b) the trail that the e-mail creates. The reader and sender can usually see only the header and text of the message. The header contains either the real or false e-mail address of the sender, perhaps a title or name to accompany the address, a correspondence copied to (CC:) line, and of course the subject line.[66] The second part of the e-mail is the trail it leaves behind. By analogy, the trail of “snail mail”[67] includes the envelope, date stamp, zip code, bar code and return address. Similarly, an e-mail’s source code is necessary to trace the time and date of the last source transmission. It is only with this source code or “fingerprint” that the actual computer of the sent e-mail can be found. Nevertheless, even if the originating computer is found, finding the originating individual is different and can be a much more difficult quest when a public computer is used.[68]

Second, originally electronic communication and use of e-mail was conducted exclusively through telephone lines. Thus, the prosecutor should first examine each state’s existing telephone harassment and threat statutes.[69] However, as technologies progress, new ways to communicate will continue to emerge, such as with cable or DSL, bypassing otherwise broad “wire” laws.[70] While some current harassment or threat statutes have been modified,[71] and others may be cross-applied regardless of the medium, most statutes are limited to the medium specified – usually the telephone.[72] Consequently, to better provide a legal remedy against electronic abuse, prosecutors must use a variety of pre-dated state and federal statutes with greater efficiency in their packaged criminal charges.[73] One such packaging that failed to produce results clearly occurred in the Baker case.

C) The Jake Baker case[74]

A statute increasingly used to supplement gaps in existing state and federal law, 18 U.S.C. § 875(c), gained unwanted notoriety in 1995.[75] It was then that the statute meant to protect and punish communicated threats was applied for the first time to electronic (Internet) communications in interstate commerce.[76] However, despite numerous social or political reasons why people wanted the Defendant to be punished for his electronic speech, the Sixth Circuit held that a series of e-mails containing interest in causing violence to another person was not a “communication containing a threat”[77] because the intended recipient of the e-mail would not personally be threatened.

The case began when a student at the University of Michigan, Jake Baker, wrote several “fictional stories”[78] and posted them on a Michigan University Usenet[79] electronic bulletin board. Two people discovered one such story and reported its existence to the University of Michigan. In one snuff[80] story entitled, “Doe,”[81] Baker wrote in lurid detail about the sadistic abduction, bondage, mutilation, torture, sodomy, rape, and murder of a victim.[82] “For the denouement, they pour gasoline on her and then say good-bye with a lit match.”[83] The “fictional victim” whom the story was named was a female classmate.

After University authorities discovered that the author of Doe and the victim were both University students, they visited Baker’s dormitory room. Waiving his rights, Baker consented to a search of his room, computer and e-mail accounts. Baker was then arrested and charged with violating and conspiring to violate 18 U.S.C. § 875(c).[84] Although initial charges alleged criminal activity because of the stories, these charges were replaced with charges based entirely on an “e-mail relationship which would span nearly two months and include over 40 exchanges”[85] between Baker and a party named in the e-mails, Arthur Gonda.[86] Thus, although academic analysis can include these stories, the legal analysis of the case does not.[87]

After Baker was taken to court, the U.S. District Court for the Eastern District of Michigan dismissed the indictment.[88] On appeal and with the efforts of the ACLU,[89] the Sixth Circuit affirmed.[90] In light of the court’s interpretation of the statute and the constitutional requirements of the true threat doctrine,[91] a second question to be asked is normative: should the First Amendment protect individuals who want to write electronic communication and send or post it freely.[92]

Of course, before answering whether the First Amendment protected Jake’s speech,[93] it is necessary to know the content of what he actually wrote in the e-mails. Central to the charges by prosecutors were e-mails that were alleged to communicate “an intent to threaten another in interstate commerce.”[94]

[Baker]: “I highly agree with the type of women you like to hurt. You seem to have the same tastes I have. When you come down, this’ll be fun! Also, I’ve been thinking, I want to do it to a really young girl first. !3 [sic] or 14. There [sic] innocence makes them so much more fun—and they’ll be easier to control.” ...

[Gonda]: “I would love to do a 13 or 14 year old. I think you are right ... not only their innocence but their young bodies would really be fun to hurt. ... [O]nce they are tieed [sic] up and struggling we could do anything we want to them...to any girl.”[95]

In another series,[96] the two discussed a method to kidnap a girl because Baker’s dormitory room was located across from the girl’s bathroom;[97] in yet another Gonda relayed information about the type of girl he'd like to “do” from the Teale-Homolke serial killings in Canada.[98]

In the superseding indictment, the Grand Jury returned five counts that this series of e-mails[99] contained both the required actus reus (sending a communication via interstate commerce) and mens rea (the general intent to communicate that threat) sufficient to satisfy Section 875(c).[100] In a thorough opinion the lower court affirmed that this was a general intent crime[101] but nonetheless found that, “intent must be proved by, ‘objectively looking at the defendant's behavior in the totality of the circumstances.’”[102] The court then concluded that it must interpret the e-mails “in the light of foreseeable recipients of the communication”[103] – Gonda – and also that the “class” of person(s) threatened must be sufficiently particular and create an “imminent” danger to satisfy constitutional inquiry.[104] In coming to the conclusion as a matter of law in dismissing the indictment, the lower court found that, “Baker’s e-mail message[s] cannot reasonably be read as satisfying [these] standard[s].”[105]

In a two-one split, the Appellate Court affirmed reviewing de novo[106] that the indictment failed as a matter of law to plead the second element of Section 875(c) outlined in the prior case, United States v. DeAndino.[107] The Alkhabez Court stated, that the “electronic mail messages between defendant and another, expressing sexual interest in violence against women and girls, did not constitute ‘communications containing a threat’”[108] under the statute, and thusly, declined to address any First Amendment issues raised.[109] The court then held, that in order to satisfy the second element from DeAndino to constitute a “threat” under the statute:

[a] communication must be such that a reasonable person (1) would take the statement as a serious expression of an intention to inflict bodily injury (the mens rea), and (2) would perceive such expression as being communicated to effect some change or achieve some goal through intimidation (the actus reus).[110]

The dissent, however, argued that this “materially alter[ed] the plain language and purpose of that section.”[111] It stated that the court had enhanced the burden of proof placed on the government in its prosecutions under the statute,[112] and “judicially legislat[ed] an exogenous element into Section 875(c).”[113] In adopting the definition of “threat” from Black’s Law Dictionary,[114] the dissent asserted that a “whenever a rational jury could find that an objective recipient of the communication would, under similar circumstances, reasonably tend to believe the speaker’s menacing words”[115] it satisfies the required elements of 875(c).[116] After addressing 875(c), the dissent turned to the Constitutional question. In contrasting United States v. Watts, the dissent argued that the lower court wrongfully dismissed the indictment on First Amendment grounds because so long as the threat against private individuals is “credible” it is devoid of constitutional protection.[117]

So, were Baker’s electronic communications protected speech or were they the exact type of electronic threat that will be the crime of the 21^st century?[118] What the Baker case highlights is that the prosecutor must overcome a variety of hurdles to meet the burden placed on them – the statutory actus reus and mens rea, the constitutional requirement of a true threat, and any courtroom strategy or evidentiary problems – and the courts have at times been unclear as to what satisfies any of that burden.

II. Statutory underpinnings of electronic harassment, cyberstalking and threats

Prosecutors and courts will initially use a variety of statutes to combat electronic harassment and threats. Notwithstanding any Constitutional restrictions on state actions, “federal statutes are to be construed so as to avoid serious doubts as to their constitutionality, and … when faced with such doubts the Court will first determine whether it is fairly possible to interpret the statute in a manner that renders it constitutionally valid.”[119]

At the federal level there are two primary statutes to examine: (A) 18 U.S.C. § 875 – Interstate Communications,[120] and (B) 47 U.S.C. § 223 – The Communications Decency Act of 1996 (CDA) – Obscene or Harassing Telephone Calls in the District of Columbia or in Interstate or Foreign Communications.[121] Additionally, whenever e-threats or e-harassment include references to fire, arson, or bombs, as was the case in the Baker story, [122] other crimes may independently be chargeable.[123]

In addition to these federal statutes, there are an increasingly important number of state statutes. Although some statutes have been specifically written to combat e-harassment and e-threats,[124] others include current and modified state telephonic harassment,[125] general harassment,[126] and sexual harassment statutes.[127]

A) Interstate Communications: 18 U.S.C. § 875(c)

Until states adopt new electronic threat, stalking, and harassment laws, prosecutors will continue to fill the void to ensure uniformity with this federal statute. The relevant text of 875(c) states that, “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both.”[128] (Emphasis added).

Today, the standard test to prosecute under 875(c) requires three elements as laid out by the court in United States v. DeAndino:[129] “(1) a transmission in interstate commerce; (2) a communication containing a threat; and (3) the threat must be a threat to injure the person of another.”[130] Although this section is contained in Chapter 41 – Extortion and Threats, and one of Baker’s e-mails alluded to abduction,[131] intent to kidnap or extort is not necessary to prosecute interstate threats. [132] While at one time the law was applied almost exclusively to instances of extortion stemming from its enactment in 1932, [133] the scope of 875(c) has been broadened by the courts to apply to many people who merely make threats via modes of interstate commerce, as in the Baker case.[134] Nevertheless, the simplicity of the statute is deceptive. Issues of whether a person’s speech is a “threat” [135] and the standard of intent necessary to satisfy the statute have confused and divided the circuits.[136]

(1) The Actus Reus:

The starting point of any criminal law analysis is with the criminal act or actus reus.[137] To meet the first prong of 875(c), the actus reus, one need only send the communicated intent vis-à-vis “interstate commerce.”[138] Recently, United States v. Kammersell[139] found that e-mail and electronic communications could be regulated under the interstate commerce clause. After examining the prior case of United States v. Lopez,[140] the Kammersell court affirmed the lower court and stated that an alleged threatening e-mail sent via the internet satisfied the actus reus requirement of 875(c).[141]

In Kammersell, a Utah defendant sent an instant message while on America Online (AOL) to a Utah recipient. Technically, the message traveled from the defendant’s location in Utah to AOL’s headquarters in Virginia and back again to its victim in Utah.[142] The court held that, “(1) the term, ‘transmits in interstate commerce,’ as it applied to [the] offense of making threatening communication, encompassed alleged conduct of sending threatening message via the Internet, and (2) [the] offense of making threatening communication in interstate commerce was within the authority of Congress under the [Interstate] Commerce Clause.”[143] However, the court did note one point of caution and conceded that a “different server may have a different transmission system not involving interstate transmission.”[144] For instance, if this case occurred in Virginia, and not Utah, the prosecutor would need to argue that even entirely intra-state e-communications can be regulated under the Interstate Commerce Clause[145] because the base server (AOL) is governed by the Interstate Commerce Clause in the same way that the Interstate Commerce Clause governs traditional telephone communications. As a result, current electronic use of telephone lines, cable lines, fiber optics, T1 or other dedicated lines, or satellites should all readily satisfy the first element of 875(c).

(2) The Threat:

Once the first element of interstate communication is established, the next step in the analysis is the statutory definition of a “threat.” What makes any conventional discussion of the actus reus and a “threat” more confusing than it should be is that both counsel and the courts do not always clearly distinguish between the statutory requirements and the constitutional requirements of a true threat. Simply, the statutory elements become confused with the constitutional requirements of a “true threat.”[146] As the constitutional threat doctrine will be discussed later, this statutory section on the “threat” is unfortunately intertwined with it. On one hand, the court could interpret the statutory “threat” in the narrow way that the Alkhabez court did. On the other hand, from a plain language interpretation of the statute, the dissent in Alkhabez readily argued that the words of 875(c) are “simple, clear, concise, and unambiguous”[147] such that, “ANY communication containing ANY threat to kidnap ANY person or ANY threat to injure the person of another”[148] would meet the threat requirement.[149] Thus, so long as there is a credible threat from an objective standard – determined by the jury – there is a statutory “threat.”

In coming up with its “interpretation” of the word “threat” beyond its common or plain usage as required,[150] the Alkhabez majority said that Congress itself used the word to create limitations on the applicability of the statute.[151] However, in light of both the majority and dissenting analyses, it is clear that the scope of the statutory term “threat” is limited only to that defined by the Constitution. In other words, if two circles represented the breadth of the “threat” doctrine, one for the statute and another for the constitution, the two circles will necessarily be concentric – the statute’s scope of what constitutes a threat being restricted by definition to that which can be prosecuted as a threat under the Constitution.[152] As a result, the analytical focus should rest on whether the mens rea of 875(c) and constitutional safeguards are met.

(3) The Mens Rea:

The third step in analyzing 875(c) is defining the level of culpability or mens rea proscribed by statute. Unfortunately, analyzing the mens rea of 875(c) has also created confusion and a split in circuits.[153] Because “e-mail transmissions are quickly becoming a substitute for telephonic and printed communications, as well as a substitute for direct oral communications,”[154] what constitutes a punishable message should remain consistent regardless of the medium. This is exactly the policy that 875(c) is meant to address. Here, the statutory language of 875(c) does not contain any reference to a specific intent to threaten. Generally, “when a statute does not contain any reference to intent, general intent is implied.”[155] As a result, electronic threats should be as easily prosecutable in the future as telephonic or printed threats.

The majority of circuits that have addressed the issue,[156] including the First,[157] Second,[158] Third,[159] Fourth,[160] Fifth,[161] Sixth, [162] and Tenth Circuits[163] have forcefully agreed and determined that 875(c) is a general intent crime. This means that the intent element only applies to sending the communication, not the nature of the communication and the threat element.[164] It also means that the interpretation of 875(c) is consistent with the policy of 875(c).

One way to accurately balance the Framers’ intent with the legislative intent in 875(c) and other similar statutes[165] was clearly explained in United States v. Fulmer.[166] In addressing the conflicting standards used in defining a “threat” with the mens rea of 875(c), the Whiffen Court said that “[Fulmer] set forth a clear rule that a statement constitutes a threat if the speaker reasonably should have foreseen that it would be understood as a threat by those whom it was directed.”[167] This objective standard solves the problems worried by the minority circuits,[168] discussed below, even though it does import a “subjective, hearer-based qualification into the objective, speaker-based standard.”[169] In other words, if a reasonable recipient would perceive the communication’s content as being a threat, then the mens rea of 875(c) is satisfied.[170] Nonetheless, even the Fulmer Court concluded that “whether a given statement constitutes a threat is an issue of fact for the trial jury.”[171] Accordingly, the majority of circuits have interpreted the general intent element of 875(c) as only requiring an objective standard and not an inquiry into the defendant’s subjective motivations to convict.

The Ninth Circuit, however, announced in United States v. Twine[172] its determination that more than “a mere transgression of an objective standard of acceptable behavior (e.g., negligence, recklessness)” is required to satisfy the mens rea element of 875(c).[173] Instead, the court concluded that a defendant must knowingly transmit a threat; that is, the prosecutor must prove beyond a reasonable doubt that the defendant knew what he was sending was a threatening communication. Because this result stands at odds with both the majority of circuits and the policy reasons behind 875(c), it is important to understand how Twine came to its conclusion.

In Twine, [174] a defendant faced with charges of both 875(c) and 876 attempted to use the defense of diminished capacity.[175] Initially the court recognized that although both statutes were enacted concurrently, they were not written identically.[176] Section 876 contains the word “knowingly” while Section 875(c) is silent on any description of the mens rea.[177] The Twine Court came to this assessment after examining the two cases of Seeber v. United States[178] and Roy v. United States.[179] However, the court’s reasoning of both Seeber and Roy is contrary to the plain language used in the respective underlying statutes and the Ninth Circuit’s own precedent. From here, a detailed look at these cases demonstrates why the Twine Court’s conclusion is at best confused, if not entirely at a discord with the remaining circuits.

First, in Seeber a defendant convicted under 875(c) appealed a jury instruction that used the word “knowingly.”[180] Although the court said, “875 … did not define a strict liability offense,”[181] the court rationalized the inclusion of “knowingly” in the jury instruction “to insure that no one would be convicted for an act because of mistake or inadvertence, or other innocent reason.”[182] The court then stated that “875(c) … define[s] specific intent crimes.”[183] However, this conclusion is only rational if the court includes “knowingly” as part of the statutory requirement – not merely part of a jury instruction as was the case in Seeber. What the Twine court does not spell out is why it then cites the case of United States v. Sirhan[184] for the proposition that the requirement of a specific intent applied just to “knowingly transmitted the communication.”[185] This presents two rational interpretations of Seeber and its applicability to Twine – both being contrary to Twine’s conclusion.

The first interpretation suggests that the word “knowingly” modifies only the portion of the statute dealing with the transmission of the communication as opposed to the nature of the threat, in which case a jury must separately decide if a threat is contained within communication. In the second interpretation, the court makes a jump in logic by restricting the statute’s mens rea to a higher level of scrutiny because of the inclusion of the word “knowingly” in a jury instruction. However, it does not follow that of the statute is henceforth subject to strict scrutiny because “mistake, inadvertence, or other innocent reason,” as the court stated, “implied” negligence or recklessness. [186] This is because a mistake or innocent reason can similarly imply either negligence or recklessness.[187] Despite the conclusion drawn, it is very difficult to make sense of the court’s reasoning.

In interpreting Seeber, the Twine Court also attempted to distinguish itself from its prior case of United States v. LeVision[188] where the court explicitly said that 876 is a “general intent” statute.[189] The court un-persuasively claims that this “rather refers to an intent generally to threaten as opposed to an intent to threaten coupled with an intent to extort money.”[190] If this is the case, then the court is now only admitting that LeVision’s interpretation requires only a general intent to threaten. If this is the extent of distinguishing the two cases, Twine appears to come to the conclusion that, absent an intent to extort, only a general intent is required under 875(c) – but this contradicts the court’s earlier statement under Sirhan that transmitting a threat was a specific intent crime. At best, Twine’s rationale for the requiring the higher mens rea of a specific intent is ambiguous and confuses 875(c) with 876.[191]

Second, the Roy case relied on the intent requirements of 871, not 875(c) or its sister equal 876.[192] Although the Roy court held that 871 required only a general intent,[193] Twine reasoned that the distinction was a factual one based on who the target was – the President or a private citizen – because a threat to the President more harmful than a threat to a citizen justified a lesser culpability requirement.[194] While this reasoning is rational, unlike the court’s interpretation of “knowingly” in a general intent manner as it did in Seeber, the Twine court now says that “knowingly and willfully” – now contained in the statute as opposed to merely a jury instruction – means that 871 is a general intent statute while 875(c) which does not include any mens rea requirement is a specific intent crime.[195] Depending on the time period, and this factual assessment, the same words and threat, sent to two people should make a legal difference – as the courts in no other jurisdiction have recognized this as a legal distinction. Indeed, as stated, every other circuit that has interpreted the mens rea element of 875(c) has rejected the reasoning of the Ninth Circuit.[196]

In this respect, my interpretation of Twine can be read as consistent with the majority of the circuit courts. The likely accuracy of this interpretation is consistent with the sister statute of 876 which also suggests that merely because the medium changes, from one of U.S. Mail to electronic mail, that the general intent requirement of 876 should not be mutated into a specific intent requirement. Yet, this was precisely what the Alkhabez court required merely in order to force compliance with the language in 875(c).[197]

Thus, in light of the analysis by the majority of circuits and the internal dissection of Twine, it is unclear why the Sixth Circuit chose to alter course from other Circuits or even its own former analysis in requiring the added element of intent that one must have a special intent to intimidate. Consequently, this impinges on the plain meaning of the statutory definition of “threat.”[198] As such, any circuit that has not addressed the mens rea of 875(c)[199] should consider Fulmer in light of the medium, but more so the message, and be willing to allow a jury to ultimately determine whether a criminal threat or harassment existed.[200] However, with numerous cases discussing 875, its recent application in the first two Internet and electronic communication cases (Kammersell & Baker) will only be the beginning.[201]

B) Communications Decency Act: 47 U.S.C. §§ 223, 233 [202]

When the Communications Decency Act (CDA) was passed in 1996, some heralded it as a long awaited policeman and father-figure for the Internet. However, since its inception the CDA has faced a series of constitutional challenges on the scope of what Congress believed was appropriate for the Internet and other electronic communications.[203] Following a stay pending the decision in ACLU v. RENO,[204] in April 1999, the Supreme Court affirmed CDA – 47 U.S.C. § 223 – in ApolloMedia Corp. v. Reno without opinion.[205] The statute states that:

Whoever—(1) in interstate or foreign communications—(A) by means of a telecommunications device knowingly—(i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person [shall be guilty].[206]

(Emphasis added). In a declaratory action challenging the constitutionality of the CDA, the court in ApolloMedia was pressed with the issue whether the CDA’s prohibition of merely “‘indecent’ communications made ‘with an intent to annoy,’ was both impermissibly overbroad and vague, therefore violating the First Amendment.”[207]

In a 2-1panel decision ApolloMedia held that the challenged provisions and string list of “obscene, lewd, lascivious, filthy, or indecent”[208] communications all referred only to obscenity; therefore, the CDA did not violate the First Amendment.[209] According to the court, the extra words in the statute are merely synonymous with “obscenity.” The court accepted that the string of words used to identify only obscene communications was “settled” under cases beginning with United States v. Roth.[210] Had the government argued otherwise, it would have risked having the words stricken or perhaps even the CDA declared wholly unconstitutional.[211] On the other hand, ApolloMedia argued in the likeness of FCC v. Pacifica[212] that the words bore individual meanings.[213] After examining the legislative history, the court adopted the government’s position.[214] Simply, the CDA took what was already unprotected speech – obscenity [215] – and merely reinforced the standard if such material was transmitted with intent to annoy another person.[216]

The constitutionality of the CDA was again addressed in United States v. Lampley.[217] In Lampley, the court upheld the statute’s constitutionality stating that not all speech enjoys the protection of the First Amendment and that Congress has a compelling interest in protecting innocent individuals from “fear, abuse, and annoyance.”[218]

As a result, when ACLU is analyzed along with Lampley and ApolloMedia, it will be difficult to read the CDA’s true police power of the Internet as substantive enough to cover anything but obscene messages – an unnecessary redundancy. Thus, although at first blush it appears that Baker would have been subject to penalty under the CDA for his obscene communications under any contemporary community standards, and most other senders of e-mail threats would not be subject to penalty under the CDA, the legislative history by the primary author of the CDA casts doubt even on this basic assumption.[219]

Nevertheless, notwithstanding the CDA’s substantive limitations to transmissions of obscenity, the form and clarity of the language used in the CDA is instructive and perhaps better than the language used in 875(c). For instance, 223(1)(A) clearly states that “knowingly” applies to (i) the creation of a communication and (ii) its transmission. Only then does the CDA list – with a separating clause “which is” – a substantive listing of the content of the communication, including being “obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person.”[220] On the other hand, one area that the CDA’s form could improve on is its replacement or supplement of “telecommunications device”[221] with “any instrument used in interstate or foreign commerce.”[222] This approach would more accurately reflect future nontelephonic or other unpredictable changes in technological improvements without, as we are pushing the envelope here, forcing an old statute to conform to a new medium.

But what will the consequences be of the ApolloMedia decision and the underlying comparison with the older Section 875? Ultimately, how First Amendment cyber-rights are decided will determine the constitutional, legal, and normative scope of the most powerful medium of the twentieth century.

C) A Survey of Other Federal Statutes:

A variety of models and statutes, when describing criminal conduct, include components that apply to electronically communicated threats or harassment.[223] With an upswing in media attention toward more severe school and workplace shootings, bomb threats, and a generalized fear of terrorism,[224] prosecutors are and should be routinely examining once narrowly classed statutes.[225]

(1) Distribution of Explosive Materials -- 18 U.S.C. § 844(e):

One federal statute deals specifically with bomb or arson threats. Section 844(e) states that:

Whoever, through the use of the mail, telephone, telegraph, or other instrument of interstate or foreign commerce, or in or affecting interstate of foreign commerce, willfully makes any threat ... to kill, injure, or intimidate any individual or unlawfully damage property by means of fire or an explosive shall be imprisoned for not more than 10 years or fined under this title, or both.

(Emphasis added). Although 844(e) still must face the constitutional test of the “true threat” doctrine, courts have decided that seemingly innocuous threats that may not be “credible” have nonetheless already crossed the line into being unprotected speech.[226] Consequently, this statute could have applied in the Baker case.

First, when the series of e-mails are considered in context -- for example, in Baker they were used in interstate commerce and through a public university e-mail account -- the threshold requirements of 844(e) emphasized are met. Second, in the e-mails, Baker indicated that the innocence of 13 or 14 year old girls made them “easier to control” such that “their young bodies would really be fun to hurt” as they “struggle.”[227] This reference reasonably, if not easily, meets the intimidation and injury requirement of 844(e). Third, as the statute only states “any individual” and does not require any particular recipient at all, the fact that Baker sent the e-mail to a third-party and not the victim becomes irrelevant. Indeed, if a third party received the communication and replied to it in the manner as Gonda had, he could nevertheless be charged with conspiracy.[228] On the other hand, the absence of the reference to fire or explosives in the e-mails might have been fatal to a prosecutor’s charge of 844(e) in the Baker case because the Baker case excluded the Doe story, which did include the references to fire. Thus, to have charged Baker with violating 844(e) the prosecutor would have needed to include the stories themselves and addressed any First Amendment constitutional issues that they raised.

(2) Interstate Stalking -- 18 U.S.C. § 2261A:

Additionally, recently signed into law was the Federal Interstate Stalking Act.[229] However, unlike the other threat or harassment statutes discussed, this statute expressly requires the stalker to “travel across a State line ... with the intent to [injure or] harass another.”[230] Had Gonda traveled from Canada to Michigan then perhaps this statute could be used to prosecute him, but not Baker. Consequently, not only does this completely fail to address the intrinsic harm caused by harassment or threats, but trying to prove intent to harass or injure another itself is not an easy task, especially when multi-jurisdictional issues are raised. Thus, because the Federal Interstate Stalking Act is limited in its application, despite the improvements made over the original statute, the proper legislative emphasis should be on the threat or harassment itself, and not any additional actions taken in furtherance of the original threat or harassment. It’s a statute that begs to humiliate law enforcement in failing to act soon enough to protect a victim.

(3) Harassment of a Victim -- 18 U.S.C. § 1514:

Other statutes pertaining to threats in specific contexts or in relation to specific responsibilities also exist in the prosecutor’s quiver.[231] For instance, 18 U.S.C. § 1514 defines harassment as a “course of conduct directed at a specific person that – (A) causes substantial emotional distress in such person; and (B) serves no legitimate purpose.”[232] Unlike the former statutes, the broad inclusionary definition appears easier to satisfy. However, the statute limits a course of conduct to a “series of acts over a period of time, however short, indicating a continuity of purpose.”[233] Furthermore, it comes into play only after a judge has already issued a temporary restraining order (TRO) on “reasonable grounds to believe that harassment ... exists.”[234] Although a component of this statute similarly includes an objective standard, because the government must first produce grounds for a restriction on speech and actions with a TRO, the utility of this statute again fails to address the intrinsic harm done by threats and harassment to the victim and again begs to be used in a Police Department public relations nightmare.

(4) The Model Penal Code:

What is clear is that sometimes what “shocks the conscience” under a common sense view may otherwise be perfectly legal.[235] For instance, the Model Penal Code (MPC) provides several statutes that one might like to apply in the Baker case: MPC § 250.4, defining Harassment;[236] MPC § 251.4, defining Obscenity;[237] and MPC § 211.3, defining Terrorist Threats.[238] Although a wayward prosecutor may eagerly apply several MPC sections in the Baker case based on what the e-mails or stories said would happen, because the acts described did not actually happen those sections would not apply: MPC § 251.1, defining Open Lewdness;[239] MPC § 212.3, False Imprisonment;[240] MPC § 212.1, regarding Kidnapping;[241] and MPC § 212.2, including Felonious Restraint.[242] Of course, the MPC is just that, a model. Consequently, the prosecutor should first examine other federal and state statutes such as those discussed above.

Simply, policy makers should take more steps, like the issuing of the Department of Justice Cyberstalking Report[243] and the President’s Executive Order 13,133 on unlawful conduct using the internet,[244] to really address the intrinsic harm that electronic threats and harassment can have on a victim, without waiting for a tangible physical harm to occur.

D) Sample State Statutes:

As highlighted in the DOJ Cyberstalking Report, to date sixteen states have enacted versions of existing statutes that sufficiently expand the scope of the existing network of state threat and harassment laws to encompass the electronic medium of communications.[245] After Michigan became the first state to prosecute an online stalker,[246] California followed with its own statute.[247] The key element to the statute is that it requires a “credible threat,”[248]

From this objective standard, the statute defines a credible threat as:

a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent and the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her immediate family.[249]

Although this statute includes and indeed focuses on the impact a cyberstalker can have on a victim though even implied threats, it also adds two elements that may not be easy to prove.

First, the statute clearly requires “the intent” to carry out the threat and secondly, the statute requires “the apparent ability to carry out the threat.”[250] This suggests that according to the letter of the statute, a person may actually trigger all of the required actus reus elements of the statute by causing great fear in an individual, but nevertheless cannot be prosecuted because of the higher culpability level. Although analytically this criticism should be headed by the state legislature, some case law suggests that despite these two culpability elements, the statute can be satisfied where the credible threat simply causes a reasonable fear - the focus being on the fear element.[251]

With this statute, California successfully prosecuted its first case of cyberstalking.[252] In that case, a person impersonated the victim in various chat rooms and bulletin boards:

where he posted, along with her telephone number and address, messages that she fantasized of being raped. [He even encouraged people to physically break down the door.] On at least six occasions, sometimes in the middle of the night, men knocked on the women’s door saying they wanted to rape her.[253]

Thus, sometimes even imperfect statutes can have ‘just’ results.

A more traditional statutory modification occurred in Connecticut, when it merely modified its telephone harassment statute.[254] Thus, now the statute says that a person is guilty of harassment in the second degree when:

with intent to harass, annoy, alarm or terrorize another person, he threatens to kill or physically injure that person or any other person, and communicates such threat by telephone, or by telegraph, mail, computer network … or any other form of written communication, in a manner likely to cause annoyance, alarm or terrorize another person.[255]

Unlike California, Connecticut’s statute has broader applicability, and would specifically address the e-stalker by excluding any “ability” requirement yet maintaining the “reasonable fear” element. Thus, while some legislative modifications of conventional statutes may be sufficient to address cyberstalking and other e-threats intra-state,[256] others are barely sufficient to address even telephone harassment.[257]

Although the California and Connecticut statutes are merely illustrative, punitive measures against the new form of old threats, harassment, and stalking are slowly becoming stronger.[258] However, the ultimate problem remains -- often one cannot invoke the protections of a threat or harassment statute until the innate harm and fear caused by an aggressor’s actions has already occurred. In most cases, authorities remain reluctant to act until a tangible (i.e., physical) threat, as opposed to electronic threat, has occurred.[259] Clearly those simple “solutions” are insufficient because the medium is different.[260] A recipient of harassment or a threat should never have to “deal with it” or “contact us when he does something more serious.” Thus, new laws must be created at both the State and Federal level to explicitly address when threats and harassment are carried out online it becomes criminal. In the mean time, old laws must be applied with the same legislative intent, as if, although the medium has changed, the message remains.

III. Constitutional Dilemmas of Electronic “Speech”

A) U.S. v. Watts[261] & the “True Threat” Doctrine[262]

A key tenant to any constitutional analysis is that the courts will always try to address a statutory question to resolve the issue to avoid addressing the constitutional issue directly or rendering an advisory opinion. Avoiding the constitutional issue is exactly what the appellate court did in Alkhabez.[263] However, the lower court found that the state did prove Baker violated the required elements of 875 and only then did the Baker court debate the issue of what was a constitutional “threat.”[264] In light of the Baker Court’s examination of the “true threat” requirement and the lack of clarity between the statute and this separate constitutional requirement,[265] the constitutional standard must be examined.

In this section I begin with the assumption that the statutory elements of 875(c) are satisfied. Further, one must have in mind the basic First Amendment structure that prohibits Congress from making any law that “abridges the freedom of speech”[266] and the liberal deference the Court has granted to the First Amendment over the years.[267] Although, the First Amendment prevents the government from proscribing speech,[268] freedom of speech has never been interpreted “to give absolute protection to every individual to speak whenever or wherever he pleases, or to use any form of address in any circumstances that he chooses.”[269] In our case, it is clear that the Constitution prohibits speech when it is threatening and creates a fear of violence.[270] However, the scope of this prohibition is what is at issue here.

The underlying question is of course when does protected ‘pure speech’ become unprotected and criminally punishable. In United States v. Watts,[271] the Supreme Court established the “standard” to distinguish between these two types of speech, stating that, “what is a threat must be distinguished from what is constitutionally protected speech.”[272] The standard that developed is the “true threat” doctrine.

The facts of Watts centered on a speech that followed a political rally in opposition to the Vietnam draft near the Washington monument in D.C. An Army Counter Intelligence Corps officer observing Watts heard him make statements to a group after the rally. Allegedly he said, “I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J. They are not going to make me kill my black brothers.”[273] In response to Watts’ statements, the “crowd laughed.”[274] Nevertheless, Watts was arrested and charged under Section 871(a) – threatening the president.[275] In a six-three per curiam decision the United States Supreme Court reversed Watts’ initial conviction because the “threat” was too tenuous in nature and hence not a “true ‘threat.’”[276] Additionally, Justice Fortas and Harlan both dissented in Watts because the Court made this decision without a hearing.[277] Unfortunately, like many Supreme Court opinions, although the original opinion is not necessarily controversial or of note, because of how other courts have interpreted it the statement requiring a “true threat” has developed its own life. Some say its now doctrine.

Arguably, however, if a court would apply this “doctrine” as developed to general stalking or harassment statutes, it is not unreasonable to conclude that nearly all but the most explicit/direct threats and forms of harassment would be constitutionally legally protected speech – contrary to the historical codification of threat and harassment laws.[278] Consequently, the Baker court’s reasoning that a threat needs to be “imminent” under the true threat doctrine,[279] strictly applied, would be contrary to both the legislative intent of Section 875 and an expanded interpretation from the enunciation of a true threat requirement in Watts.[280]

However, there are several reasons why the non-“true threat” statements that led to the defendant’s acquittal should not be interpreted as a “doctrine” outside of the unique factual situation presented in Watts.[281] Indeed, Justice Stevens recently doubted whether a “true threat” doctrine even exists, and if it does, whether the doctrine should apply any differently to a threat or harassment over the telephone.[282] Likewise, I argue that the use of this “doctrine” by the Baker court and in related “threat” cases interpreting Watts has become an exercise in overbreadth. Simply, too many courts are protecting too much Constitutionally punishable speech in the name of protecting an individual’s First Amendment rights.

First, the factual dissimilarity in Watts, prefaced with the political atmosphere of the 1960s and the draft/Vietnam conflict, simply should not apply to electronic communications between private parties in non-political speech. This is because Watts, as the dissent notes, is “perhaps a trivial case because of its peculiar facts,” and also quite distinct from more modern instances of prosecuted threats and harassment. [283]

Despite the political speech context of Watts, defendants like Baker have manipulated the underlying rationale of Watts without accurately enunciating exactly what the case stands for and the factual predicates behind the rationale. There are no less than six factors that the Watts Court examined to distinguish constitutionally protected speech from unprotected speech. In my opinion, these factors are the test of the true threat doctrine. The include whether the statement or speech (1) is considered a “political hyperbole;” (2) said against the background of a “profound national commitment to the principle that debate on public issues should be uninhibited;” (3) concerns “government [or] public officials;” (4) made in a particular “context” of speech in question; (5) “conditional” or imperative; and (6) the “reaction of the [objective hearers].”[284] Furthermore, there is no indication that this is an “and” test, requiring all six factors.[285]

When the Watts’ 6-part test for a “true threat” is applied in the Baker case,[286] Baker would not be protected by at least four of the rationales that protected Watts. This suggests that when the facts of Watts are dissected Baker’s statements were actually unprotected speech and true threats. Cases that deny a true threat existed without examining these factors fail to realize the factual context of Watts and the broader application of the “true threat” doctrine. Thus, courts should consider factors “such as the type of statement made, the place where it was made, how it was made, and to whom it was made” whenever citing to or relying on Watts.[287]

A second reason why the scope of the true threat doctrine is suspect is because of the various definitions given to a “true threat.” One of the more difficult objective standards of whether a “true threat” exists is found in United States v. Kelner.[288] In Kelner, the Defendant made statements during a television press conference in New York that the Jewish Defense Leagued planned to assassinate Palestine Liberation Organization Chairman Yasser Arafat during his stay in New York.[289] Using the 6-factor test of Watts to analyze his statements one can readily see that Kelner should have been acquitted. Clearly his statement appears to be a “political hyperbole,” made against a backdrop of a “national commitment to the principle that debate on public issues should be uninhibited,” regarding a foreign “government official” in the context of the television interview in the conditional nature of “planned” because the prosecutor never showed Arafat was actually in or even going to be in New York anytime soon![290]

However, not only was Kelner convicted, but the Kelner court affirmed that a true threat exists only if “on its face and in the circumstances in which it is made [the speech is] so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.”[291] This is nearly a complete reiteration of Brandenburg v. Ohio,[292] as opposed to the definition of a threat cited in Watts.[293]

Even though the inclusion of the speech into some of the categories of the 6-part Watts test could be debated, including whether this indeed was a political hyperbole because other statements made clear that people had acted in preparation to kill Arafat,[294] it clearly shows how drawing such a bright line as in Kelner[295] ignores the fine lines between protected and unprotected speech under the First Amendment. Thus, arguably, at least under the reasoning of Watts, the Second Circuit in Kelner took the true threat doctrine too far and as a result overprotected unprotectable speech. Indeed, Judge Mulligan stated in his concurring opinion that the court’s “immediate” requirement of the true threat doctrine “seems to be required neither by [875(c)] nor the First Amendment.”[296]

The question that remains is how can the tougher standard in Kelner be reconciled with the test from Watts? The answer could be that Kelner simply requires too much, that Kelner doesn't apply if the statute (875(c)) requires a specific intent, or that the speech in Kelner is unprotected because of the connection between speech and action. I address each of these three synthesizing explanations briefly.

Some courts have at least agreed with Kelner’s “unequivocal” standard. In Lovell v. Poway Unified School District[297] the Ninth Circuit found a student’s statement of violence in school was a true threat using Kelner. Here the student said, “If you don’t give me this schedule change, I’m going to shoot you.” The lower court found the First Amendment protected this statement.[298] In reversing, however, the Ninth Circuit said that considered in the context, “of the violence prevalent in schools today, school officials are justified in taking very seriously student threats against faculty or other students.”[299] Thus, this statement fell under the Kelner standard as being, “unequivocal and specific enough to convey a true threat of physical violence.”[300] Nevertheless, just because the Ninth Circuit used Kelner which interpreted the true threat doctrine from Watts does that this mean either Kelner or Lovell got it right! In fact, using the 6-part Watts test in defining a true threat undoubtedly would have been sufficient to convict this student. This suggests that Kelner proves too much.

Another synthesis of the confusion between Watts and Kelner is raised in Shackelford v. Shirley.[301] In Shackelford, the court addressed the Mississippi telephonic threat statute containing a clear specific intent requirement. The court concluded that the constitutional problems of Watts and Kelner do not seem to apply where the statute already requires a specific intent.[302] This reason alone makes Shackelford sufficiently distinct in its own right as to not be precedential in the Fifth Circuit for 875(c), as a general intent crime, but may be nevertheless binding on a 47 U.S.C. § 223 claim, which clearly is a specific intent crime.

Yet a third synthesizing explanation of Watts and Kelner is found in United States v. Francis. In Francis, the court stated in dictum that “once a statement meets [the unequivocal test in Kelner], it is no longer protected speech because it is so intertwined with violent action that it has essentially become conduct rather than speech.” If one adopts this reasoning, it suggests that Brandenburg should be used whenever threatening speech becomes intertwined with conduct and Watts should be limited to applications of pure speech. Simply, the practical effect of Kelner on Watts and the threat doctrine is not to argue whether a doctrine exists, but to argue its scope. What is clear is that scholars have substantially overlooked the true threat doctrine of Watts when analyzing the protections given to speech.

Finally, a third reason why the true threat doctrine and its true scope is suspect is because of the perplexing absence of the Courts use of this doctrine in similar threatening or fighting words cases – which could equally be analyzed in light of whether a “true threat” existed.[303] Indeed, just as there are cases like Baker on one end of the non-threat spectrum, there are other cases that suggest the standard is much broader.[304] Moreover, the argument that Brandenburg supports the position that a true threat must be imminent to fall into the class of unprotected speech ignores the Court’s own reasoning of Watts – decided in the same term.[305] Thus, in light of these strong factors favoring a broader inclusionary interpretation of the “true threat” doctrine, and a clearer enunciation of the reasoning that the Watts Court used, the “true threat doctrine” should not be applied to protect nonpolitical and personal electronic forms of harassment or threats (a.k.a. unprotected speech).

B) The World of the Ever Shifting Debate

Even if courts eventually agree on the meaning of the mens reas, actus reus and what is a true threat of 875(c), the debate will likely only shift to whether the statute is written to avoid further problems of vagueness and overbreadth.[306] To preempt another debate, where the statutory elements of 875(c) are satisfied, whether these personal electronic communications are a “true threat” may need to be assessed for safety purposes. Perhaps the easiest enunciation of a safety standard that could also incorporate the 6-part Watts test comes from obscenity cases – whether in the light of the contemporary community standards an objective reasonable listener considering the speech in context would find the speech threatening. Certainly this standard could be tweaked, but with the practical effect that cumulatively threats are now taken much more seriously and are taking their toll on society it may certainly be time to legislatively reevaluate the standard.

Nonetheless, even if this battle is solved to one’s satisfaction, the debate will still shift into evidentiary problems that may hinder a successful prosecution even when the prosecutor finds a statute that can be applied to the next case involving threats.[307]

Although it is not impossible to admit electronic evidence,[308] there are several problems in trying to admit evidence of an electronic communication. There is the possibility that the defendant will deny sending the e-mail. Simply because a printed piece of paper shows an alleged e-mail is insufficient to introduce it.[309] This presents problems of relevancy and authentication,[310] the best evidence rule,[311] and hearsay[312] – as the e-mail could have either been sent by another person acting under the defendant’s name, or it could have been altered upon arrival.[313] However, until new technology and efficiency is utilized, this difficulty may create circuit splits – just in some case, injustice in others. Thus, the prosecutor should be fully aware of the special problems and thorough in her analysis to address them before the court dismisses based on them.

IV. Conclusion

“Make no mistake: this kind of harassment can be as frightening and as real as being followed and

watched in your neighborhood or in your home.”[314]

In light of the first major effort by government to address the unique challenges of the medium of electronic communication when harassment and threats go online, the final recognition that the actions pose equideleterious harms is crystallized. After the DOJ Cyberstalking Report was issued, Congress has introduced several proposals based on the DOJ’s recommendations that would make more explicit the illegal nature of harassment and threats occurring over e-mail and other electronic communicative means.[315] In the mean time, statutes like 875(c) and the provisions in the Communication Decency Act must be interpreted broadly in allowing a prosecution to go forth after presenting a general mens rea to threaten or harass another.

Perhaps one-day policy makers and courts will finally agree that speech should not be protected even if it poses no imminent danger or risk of substantial bodily injury when it would nevertheless cause a reasonable person to fear just such an action. Although the practical remedies for electronic harassment appear to be the same as those in real life – women can ask the harasser to stop, avoid places that resulted in past harassment, report violations to system administrators or the police, or ignore the harasser – they are not remedies.[316] Although these “solutions” may seem simple, and the mechanisms of electronic harassment and electronic threats can take many forms, just like conventional harassment or threats the harassment or threats often result to attacks in person.[317]

Simply, the legal and political systems need to continue to interpret and write statutes, such as how the Fulmer court indicated, and determine what is a threatening communication and what is a threatening harassing communication from a more objective hearer-oriented perspective. Indeed, in defining a “threat” according to a contemporary community standard as opposed to the legalese of a “true threat” may produce the most ‘just’ results. Until clarity is provided in this factually disturbing and politically charged area of the law, we must all understand that the computer and its attachments are more than just tools of the information age. They can also be used as secret weapons of fear, harassment and terror.

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[1] Valerie Alvord, Cyberstalkers must beware of the e-law, USA Today, 22A, Nov. 8, 1999. [NOTE: Citations use conventions from the 16^th Edition of the Bluebook (1999). Conventions may be altered as necessary for on-line publication.]

[2] Mary Spicuzza, Caught in the Web, <“http://www.metroactive.com/cruz/cyberstalkers~9945.html”> (visited Dec. 28, 1999).

[3] See Brooke A. Masters, Cracking Down on E-Mail Harassment, Washington Post, Nov. 1, 1998 (describing a variety of e-harassment and e-threats); Anne Bevilacqua, Electronic Harassment, Computers and the Law Final Paper, May 2, 1997, <“http://wings.buffalo.edu/Complaw/CompLawPapers/bevilacq.htm”>(visited Dec. 28., 1999)(describing a variety of electronic harassment forms, from non-corporate and racial to congressional, sexual and corporate electronic harassment).

[4] See U.S. Const. Amendment I (1791)(“Congress shall make no law … abridging the freedom of speech, or of the press.”). Depending on the nature of the transmission, either of these clauses may apply as a defense to criminal charges. The former for more private communications such as instant messages and e-mail, and the latter to more public electronic postings on bulletin boards, Usenet boards, or merely in a webpage.

[5] See Marie D’Amico, The Law-abiding netizen-Cyberstalking via the Net, NetGuide, Feb. 1, 1997, at 32 (cited in Bevilacqua, Electronic Harassment, supra note 3)(“The Internet has become another weapon in the stalkers arsenal because it enable user to find personal information about anyone with a few simple keystrokes”).

[6] See Staff Reporters, Atlanta Man charged in threatening e-mail, Atlanta Journal and Constitution, Nov. 16, 1999, at C;6 (stating that was charged after an anonymous caller reported that Peter J. Shelton sent an e-mail threatening to go to Burger King and “kill everyone inside” including that he would “kill everyone I can, moms, dads, kids, cops, employees, and everyone else who gets in my way, killing and killing”); Marie D’Amico, The Law vs. Online Stalking, Feb., 1997, <http://www.madcapps.com/Writings/cybersta.htm”)(visited Dec. 28, 1999)(describing how Internet America, Inc. and its CEO and his wife were harassed, stalked and threatened by a person via e-mail and messages on a Usenet board before the Texas District Court issued the first restraining order).

[7] See Cory Reiss and Stacey Hirsh, 1 sentenced, 1 suspended in school threat cases, Morning Star, June 3, 1999 at 1A (describing how a teenager who posted a site on the Internet to blow up New Hanover High School pleaded guilty with statements like, “the end is near,” “Violent J will rule the day,” “I am back. Who cares? You should,” and other direct statements of time, date and place of a bomb by the “Hanover Hit Men” and via e-mail in the wake of the school shootings at Columbine High School in Littleton, Colorado).

[8] See Michael Weiss, Other Indictments, Atlanta Journal and Constitution, June 15, 1999, at 3 (indicating a Parkview High School student who made a bomb threat via e-mail one week after the Colorado Columbine school shooting was arrested); AP, Threat Suspect Charged, Calgary Sun, Dec. 18, 1999, at 25 (describing how 18 year-old sent an instant message on American On-Line (AOL) to a Columbine High School student indicating that he would “finish” what had been started and that he did not want the recipients “blood on [his] hands”); Opinion, No idle threats Authorities must take all seriously, Tulsa World, Dec. 21, 1999, at 16 (describing as a copycat case how Michael I. Campbell made threats via the Internet to a student at Columbine High School); Peter G. Chronis and Kevin Simpson, Floridian arrested in ‘Net threat Columbine closure spurred by ‘boredom,’ Denver Post, Dec. 18, 1999, at A01 (indicating same and that Columbine has been the suspect of numerous threats since its’ massacre and one person was sentenced to one-year in jail because of his threats). Because of the nature of juvenile justice, although initial reports are often public information when they concern the safety of others, the ultimate disposition is sealed unless they are tried as adults.

[9] See Masters, Cracking Down on E-Mail Harassment, Washington Post, Nov. 1, 1998 (describing how an official with the Defense Information Systems Agency was harassed by third party mailing whom a former employee had signed him up for).

[10] See Michael Gennaco, Hate on the Internet, Congressional Testimony by Federal Document Clearing House, Sept. 14, 1999 (stating that 62 Asian students at University of California-Irvine received e-mails indicating that if they did not leave the campus “he would make it his personal career to hunt down and kill each of them”); Reuters, Anti-Semitic Acts Rose in ’98 ADL Says, Los Angeles Times, Mar. 25, 1999, at A4 (indicating that “e-mail threats and messages of hate transmitted over the Web have increased dramatically in recent years” according to the Anti-Defamation League); see also infra note 317 (discussing how another racist e-mailer threatened the University of Iowa Dental School minority students with a surprising twist).

[11] See Louise Knott, Online stalkers corralled, Detroit News, Dec. 12, 1999 (indicating how one Novi, Michigan woman was terrorized by a former boyfriend over the Internet and through e-mail that resulted in Michigan passing specific legislation that makes it a felony to “harass, threaten or stalk someone through the Internet” as well as other recently publicized electronic threat cases); Associated Press, E-mail stalker sentencing likely will influence future cases, Detroit News, Mar. 23, 1996 (describing the Archambeau case of an estranged lover of a video dating service resulted in a cease or desist order after sending the woman dozens of unwanted e-mails); Sally Greenberg, Threats, Harassment, and Hate On-Line: Recent Developments, 6 B.U. Pub. Int. L.J. 673, 682-83 (1997)(describing how the Archambeau case led to the first online stalking prosecution in Michigan); Mary Spicuzza, Caught in the Web, “http://www.metroactive.com/cruz/cyberstalkers~9945.html”> (visited Dec. 28, 1999)(detailing several other examples of how estranged persons retailed electronically with their victim).

[12] See Jessica Laughren, Cyberstalking Awareness and Education, <“http://wwwacs.ucalgary.ca/~dabrent/380/webproj/jessica.html”> (visited Dec. 28, 1999)(describing how actress Rebecca Schaeffer was electronically stalked by Robert John Bardo before he shot and killed her when she rejected his admiration at her home. This incident is what led California to be the first state to pass anti-stalking laws.); Jennifer L. Bradfield, Anti-Stalking Laws: Do They Adequately Protect Stalking Victims?, 21 Harv. Women’s L. J. 229, 243-44 (1998)(describing the characteristics of stalkers and how the Schaeffer murder led to the California anti-stalking law); Rebecca K. Lee, Romantic and Electronic Stalking in a College Context, 4 Wm. & Mary J. Women & L. 373, 402-404 (1998)(describing how Canadian singer/songwriter and founder of the Lilth Fair Tour Sarah McLaughlin was a stalking victim herself taking the erotomanic viewpoint of her stalker in “Possession” on her Fumbling Towards Ecstasy record).

[13] See Colleen O’Connor and Laurie Wilson, Women Battle Online Stalking, Dallas Morning News, Oct. 12, 1996, at 1A (describing cases where an online stalker threatened to rape a woman as well as her five-year-old daughter and how online and merely electronic stalking or threats have often turned into “real” physical stalking and actions on those threats).

[14] See Associated Press, N.J. Man charged with making tunnel bomb threat on Internet, Houston Chronicle, Dec. 24, 1999, at 5 (stating that despite the lack of corroborating evidence of his intent, the mere message in an Internet chat room to leave a bomb-laden van in a N.J. Hudson river tunnel that connects N.J. from N.Y. resulted in charges); Alice McQuillan, 2 N.J. Men Charged In Bomb Threats, N.Y. Daily News, Dec. 24, 1999, at 2 (same).

[15] See Philip Elmer-DeWitt, Snuff porn on the Net, Time, Feb. 20, 1995, at 69 (describing the “Jake Baker case” [hereinafter the Baker case] where a University of Michigan college student wrote several rape “fantasy stories” and posted them on Usenet bulletin boards about men (written in the first person) who kidnap young girls, sodomize, mutilate, and rape the girls before they are left to die).

[16] For instance, the Sause case in 1995 demonstrated how a popular new medium of communication was abused in the same way that past mediums of communication were used by stalkers. See Greenberg, Threats, Harassment, and Hate On-Line: Recent Developments, supra note 11, at 673, 682-83 (describing how 19-year old William Sause was charged with “aggravated harassment” for terrorizing a family by sending threatening e-mail that promised to “hunt them down, rape their 12-year old girl, [infect her with the HIV virus after school,] and kill them”)(citing College Student Charged with Internet Harassment, Atlanta J. & Constitution, Nov. 17, 1995, at B07). Throughout this Note numerous actual and anecdotal examples of electronic harassment and electronic threats are given. See, e.g., supra notes 6-17.

[17] In two separate yet similar cases, the Woodside Literary Agency case and the Mr. Bungle case, a woman was targeted and cyberstalking by those encouraging others to act on their thoughts. See, e.g., Woodside Literary Agency case, Abuse of Usenet, <”http://members.tripod.com/~cyberstalked”> (visited Dec. 28, 1999)(containing dozens of links to articles related to the Jayne Hitchcock or Woodside Literary Agency case); Julian Dibbell, A Rape in Cyberspace or How an Evil Clown, A Haitian Trickster Spirit, Two Wizards, and a Cast of Dozens Turned a Database into a Society, 1994, Ann. Surv. Am. L. 471 (1994)(thoroughly discussing the Mr. Bungle incident); Cassandra Burrell, Complaint Starts Nightmare Women asks House to Legislate against Cyberstalking, Sun-Sentinel, Ft. Lauderdale, Sept. 30, 1999 (1999 WL 20286534)(describing the “Mr. Bungle” case where a former security guard Gary S. Dellapenta assumed his victim’s identity on a webpage, stating that “she” wanted to have her home broken into and raped, after giving the woman’s name, address and telephone number); Associated Press, California Presses ‘Cyberstalking’ Case, APB news, “http://www.apbnews/com/newscenter/breakingnews/1999/01/22/stalk0122_01.html”> (visited Dec. 28, 1999); Cassandra Burrell, Anti-Cyberstalking Laws Mulled, AP Online, Sept. 30, 1999 (1999 WL 28123210); Sunny Sea Gold, San Diego State U.: Gore speaks out against cyberstalking on San Diego State U. visit, U-Wire, Sept. 20, 1999; David Beatty, Stalking and Violence Against Women, Congressional Testimony, House Judicial Committee, Subcommittee on Crime, Sept. 29, 1999 (1999 WL 27594940); Michael Posner and Molly M. Peterson, Internet Stalking, Gambling Targeted by House Panels, National Journal, Nov. 6, 1999 (1999 WL 28248170).

[18] While this may be stereotypical and females are also accused of harassment and threats, overwhelmingly it is the male who crosses the line. See DOJ Cyberstalking Report, infra note 19 (stating that “with ordinary stalking that women are far more likely than men to be stalked”). Thus, the pronouns “him,” “his” and “he” shall represent throughout this Note the accused perpetrator and declarant while the pronouns “her” and “she” shall represent either the target or subject of the arrest.

[19] See Alvord, Cyberstalkers must beware of the e-law, USA Today, supra note 1, at 22A (“In one telephone survey of 4,446 randomly selected college women, researchers at the University of Cincinnati found that in 696 incidents of stalking between the fall of 1996 and the spring of 1997, 24.7% involved stalking by e-mail, says associate professor Bonnie Fisher, main author of study.”)(citing .S. Justice Department Report, Cyberstalking: A New Challenge for Law Enforcement and Industry, September 1999 (hereinafter “DOJ Cyberstalking Report”).

[20] DOJ Cyberstalking Report, supra note 19 (finding that in Los Angeles an estimated 20 percent of their caseload from the District Attorney’s Stalking and Threat Assessment Team involve cyberstalking-type cases while New York City’s Computer Investigation and Technology Unit estimate nearly 40 percent involve electronic means – virtually all of which have occurred in the last three to four years).

[21] See Joshua Quittner, Unmasked on the net, Time, Mar. 6, 1995 (describing a variety of mechanisms, servers, and remailers provide the sender of an e-mail a relative comfort level of security because of the anonymity that the net affords, including the first widely used server “anon.penet.fi”).

[22] See Michael Gennaco, Hate on the Internet, Congressional Testimony by Federal Document Clearing House, Sept. 14, 1999, at 3 (describing that the nature of Internet threats is different than conventional means because of the simultaneous transmission of the message, indicating to the recipient that the sender is thinking the actual message; and unlike a telephone message, cannot gauge the severity of or tones in the speakers voice, leaving only the strict minimalist interpretation of the words as well as all of the subjective and objective connotations the recipient gives them); Masters, supra note 3 (“The mechanics of the Internet – mailing services and free e-mail accounts that make it possible to send vast numbers of anonymous messages with one keystroke – make it a fertile field for those seeking to frighten or intimidate, analysts said. A single user can send the same file to hundreds of people in far less time that it would take to telephone or write them.”).

[23] As this Note will focus on written communications, these can be more easily copied, recorded, and printed as they do not change form, whereas verbal communications over the telephone or in person would necessarily have to be reprinted in a form different from their original communication.

[24] See Spicuzza, supra note 2 (indicating that of the few who do report cyberstalking and harassment, officials routinely claim they are “empty threats.” “There’s this belief that if the person hasn’t been physically present, there isn't a credible threat. Like you’re not in danger until somebody shows up and bangs your door down…But by the time it reaches that threshold, it’s usually too late. Meanwhile he’s totally invading [your] life [and you] don’t feel safe.” [hereinafter the “credible threat” problem]); Bradfield, Anti-Stalking Laws: Do They Adequately Protect Stalking Victims?, supra note 12, at 249(suggesting that the requirement of a “credible threat” is at the very heart of why stalkers often go unprosecuted, and if and when they are, it is “too little, too late”).

[25] See Masters, supra note 3 (stating that “usually, state and local law enforcement will … throw their hands up in the air unless you can show them off-line harassment”); DOJ Cyberstalking Report, supra note 19 (“Unfortunately, some victims have advised them to come back if the cyberstalkers confront or threaten them offline.”); Andrews Publications, Ct Judge Says He Has No Jurisdiction over Officers In Internet Harassment Action: Marczeski v. Price, 14 No. 8 Andrews Corp. Off. & Directors Liab. Litig. Rep. 17 (Feb. 22, 1999)(stating that a federal judge dismissed for lack of personal jurisdiction a harassment case through the use of the Internet, instead requiring “individual contacts”).

[26] See Sanford H. Kadish & Stephen J. Schulhofer, Criminal Law and its Processes 608-610 (1999)(noting various stalking statutes since the initial California approach in the first stalking statute, Cal. Penal Code § 649.9 (Supp. 1994), including the Model Penal Code approach in § 250.4); see also Matthew J. Gilligan, Note, Stalking the Stalker: Developing New Laws to Thwart Those Who Terrorize Others, 27 Ga. L. Rev. 285 (1992)(same). This paper is broader in scope than mere stalking. But see Masters, supra note 3 (indicating the sentiment of many others fearful of trampling on civil liberties that, “You can be crude you can be rude, you can be nasty. … It’s not a federal crime to be a jerk.”).

[27] Cf. Spicuzza, supra note 2. One common challenge to any “threat assessment” is that to be actionable it usually must be a “credible threat,” as the California State law requires despite the fact that unlike conventional stalking, cyberstalking or harassment or threats can promote even greater fear and terror over a longer period, because the declarant may be across the street or across the country, and the cheapness of the medium may allow 50 separate messages in a matter of moments what would otherwise take days to compose and send. Id.; DOJ Cyberstalking Report, supra note 19, at n.1 (discussing the credible threat problem and suggesting that the better approach codified in the federal interstate stalking statute, 18 U.S.C. § 2261A, “is to prohibit conduct that places a person in reasonable fear of death or bodily injury”). The DOJ Cyberstalking Report also suggests that challenges like anonymity, and lack of training are but one area to focus on. However, federal law also limits the ability of law enforcement to track stalkers in cyberspace. For instance, the Cable Communications Policy Act of 1984 (CCPA), 47 U.S.C. § 551(c) and (h), prohibits disclosure of cable subscriber records to law enforcement without a court order and advance notice to the subscriber, whereas under 18 U.S.C. § 2703 maintains the privacy concerns of the CCPA but allows access to records of e-mail subscribers. Thus, when cable access providers begin offering services of Internet Service Providers (ISP), a legal challenge is created. Id.

[28] DOJ Cyberstalking Report, supra note 19; see also John P. Ludington, Validity and Construction of “Terroristic Threat” Statutes, 15 A.L.R. 533 (1986 & Supp. 1998)(indicating in depth terroristic threat statute requirements). See Findlaw: Cyberspace Law Center, “Cyberstalking and E-mail Threats,” <http://www.cyber.findlaw.com/criminal/cyberstalk.html> (visited Nov. 11, 1999)(containing links and articles generally on cyberstalking, e-harassment, and e-threats from both a legal and non-legal perspective).

[29] Evidentiary problems one may have in introducing electronic evidence is wholly beyond the scope of this note, although a prudent prosecutor and attorney should well be aware of at least the presence of this issue. See also infra notes 309-312.

[30] See, e.g., Gene Barton, Taking a Byte Out of Crime: E-Mail Harassment and the Inefficacy of Existing Law, 70 Wash. L. Rev 465 (1995); Greenberg, Threats, Harassment, and Hate On-Line, supra note 11, at 673 (1997); David K. McGraw, Sexual Harassment in Cyberspace: the Problem of Unwelcome E-Mail, 21 Rutgers Computer & Tech. L.J. 491 (1995)(discussing foundations of electronic harassment). For purposes of this paper only oral or written statements or assertions shall be examined. Thus, the act of harassing or threatening by physical or other actions is not included except to the degree that it supportively adds credence to an electronic version of the same.

[31] Id.

[32] Black’s Law Dictionary, 6^th ed. (1991) (“Obscene or profane language or language the natural consequence of which is to abuse the hearer or reader” is unlawful harassment under the Federal Fair Debt Collection Practice Act, 15 U.S.C. § 1692(d)(2)); see also Model Penal Code § 250.4 (“A person commits a petty misdemeanor if, with purpose to harass another, he: (1) makes a telephone call without purpose of legitimate communication; or (2) insults, taunts or challenges another in a manner likely to provoke violent or disorderly response; or (3) makes repeated communications anonymously or at extremely inconvenient hours, or in offensively coarse language; or (4) subjects another to an offensive touching; or (5) engages in any other course of alarming conduct serving no legitimate purpose of the actor.”). Id. Black’s Law also defines sexual harassment as a form of discrimination of a sexual nature in the course of employment prohibited under Title VII of 1964 Civil Rights Act and commonly by state statutes. See id.

[33] Merriam-Webster simply defined harassment as “the act of annoying.” Merriam-Webster Dictionary, Wordmaster Franklin computer, 1988. But the act of annoying is not criminal. Black's Law Dictionary states more precisely that harassment is a “course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate purpose.” Black’s Law Dictionary, 6^th ed. (1991)(citing 18 U.S.C. § 1514(c)(1), a federal statute providing a civil action for harassing a victim or witness). Accordingly, Black's Law contains both subjective and objective components.

[34] See id.

[35] This is not to suggest that the author believe harassment is merely an annoyance, but an application of the Merriam-Webster definition of the same. In fact, harassment is both intrinsically, in and of itself, and extrinsically, in its effects on others, of a criminal nature often via the level of general intent required to convict.

[36] Black’s Law Dictionary 1480-81 (6th ed. 1990).

[37] Merriam-Webster Dictionary, Wordmaster Franklin computer, 1988.

[38] Applying 875(c) successfully in more traditional cases of explicit oral or written statements with an intent to cause injury to the recipient of the statements. See, e.g., United States v. Francis, 975 F.Supp. 288, 291 (S.D.N.Y. 1997)(describing how the defendant threatened to blow the complainant’s head of, cut the complainant up into a thousand tiny pieces, slit the complainant’s throat, and kill the complainant); United States v. Darby, 37 F.3d 1059, 1061-62 (4th Cir. 1994)(noting that the defendant threatened employees at the IRS by stating that “her life expectancy would be zip”); United States v. Cox, 957 F.2d 264, 265 (6th Cir. 1992)(per curiam)(finding that the defendant threatened employees at a local bank stating that they had better return a repossessed truck or else there would be “a lot of hurt people” at the bank)(cited in David C. Potter, Jake Baker Case: True Threats and New Technology, 79 B.U. L. Rev. 779, n.196 (1999)); see generally Robert K. Kelner, United States v. Jake Baker: Revisiting Threats and the First Amendment, 84 Va. L. Rev. 287 (1998).

[39] See Greenberg, Threats, Harassment, and Hate On-Line, supra note 11, at 684 (quoting e-mail that, “U WILL DIE TRUST ME U F[***]IN JEWISH LUSH IM GOING TO KILL U WITH MY BARE HANDS SQUEESE YUR NECK UNTIL YOUR HEAD POPPS LIKE A BOUBLE AND SMASH ALL YOUR BONES LIKE TWIGS” [sic – original in caps]). In internet speak, when a message is sent in caps it denotes the person yelling. See Jay Krasovec, Cyberspace: The Final Frontier, for Regulation?, 31 Akron L. Rev. 101, 142 n.185 (describing the “cyber-etiquette” or “Netiquette” (citations omitted)).

[40] [GRAPH - depicting a line from quadrant 4,0 to 10,10 in an upward-right direction].

[41] See United States v. Kammersell, 7 F.Supp.2d 1196, 1200 (D. Utah 1998)(discussing origins of 875(c)).

[42] See Greenberg, Threats, Harassment, and Hate On-Line, supra note 11, at 680 (mentioning change in law was due to Lindbergh case).

[43] United States v. Watts, 394 U.S. 705, 707 (1969)(holding that a threat must be true in order to be unprotected speech).

[44] Id.

[45] Id.

[46] It was during the same term that the Court handed down the landmark decision of Brandenburg v. Ohio, 395 U.S. 444 (1969)(per curiam), expanding the First Amendment protection for advocacy of illegal activity under the Ohio criminal syndicalism statute of a Ku Klux Klan leader.

[47] It is perplexing because during the same time frame the Court addressed the fighting words doctrine several times. Yet, the Supreme Court has not substantively addressed the “true threat” doctrine since Watts. For this reason, it is arguable that the true threat standard was either a variation or tangent of the more prevalent fighting words doctrine, or is limited in its application to political speech, a category of speech that is independently protected by a heavy standard of scrutiny. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)(detailing the current state of free speech protections in the First Amendment); see also infra notes 204, 215 and accompanying text (discussing First Amendment caselaw); Section III (discussing additional constitutional issues).

[48] 104 F.3d 1492 (6^th Cir. 1996).

[49] See F. Lawrence Street, Law of the Internet 454 (1997) (describing in a single paragraph the first-impression Baker case as not meeting the immediate threat required for a criminal conviction).

[50] Justice Stephens. Lecture – Question and Answer; Interview; October 14, 1999, University of Iowa. During this section of the lecture the author asked Justice Stevens what his opinion was of a “threat” and whether a “true threat doctrine” exists in light of Watts. One could clearly tell that the “steadfastness” it may have had in Watts has long since waned, regardless of medium that the threat took. Indeed, the author’s impression was that Justice Stevens may subscribe to the notion that, “I know a threat when I hear it.”

[51] See Philip T.K. Daniel & Patrick D. Pauken, Educators’ Authority and Students’ First Amendment Rights on the Way to Using the Information Highway: Cyberspace and Schools, 54 Wash. U. J. Urb. & Contemp. L. 109 (1998) (describing a brief history of the Internet and its’ organization as contained in the Appellant’s Brief in ACLU v. Reno, 117 S. Ct. 2329 (1997)).

[52] Cf., President’s Commission on Critical Infrastructure Protection, Critical Foundations: Protecting America’s Infrastructure (1997); Daniel G. Pinegar, Thesis, Warlords and Terrorists on the Information Super-Highway: the Most Dangerous Uses of Information Warfare, (on file with University of Iowa Honors Program)(May 1998)(discussing the nature of the Internet, relay nodes and its theory of redundancy).

[53] See Jay Krasovec, Cyberspace: The Final Frontier, for Regulation?, 31 Akron L. Rev. 101, 104 n.13 (describing the Internet’s humble beginnings); Daniel & Pauken, Educators’ Authority and Students’ First Amendment Rights on the Way to Using the Information Highway, supra note 51, at 111 (describing the role of the Department of Defense in the creation of Internet).

[54] See Phil Alden Robinson, Director, Sneakers, Universal City Studios, Inc., 1992 (depicting how a group of specialists did make a telephone call that went through a variety of terminal hubs and satellites).

[55] There are an increasing number of sources of once “spy-like” phone gadgets that one can use to protect your identity. Cf. Shomer-Tec catalog (1999); Spy Headquarters (1995).

[56] Examples of threats against the President of the United States communicated by telephone that have been prosecuted under 18 U.S.C. § 871, notwithstanding being restricted to threats by mail, are prominent examples of the abilities of law enforcement to find out both the source and the speaker of the threat. See Roy v. United States, 416 F.2d 874 (C.A.9 (Cal) 1969)(finding defendant guilty of a specific intent to threaten the President who made anonymous telephone call threatening the life of the President despite later stating it was a joke).

[57] See generally, ACLU v. Reno, 929 F.Supp. 824, 830-38 (E.D. Pa. 1996)(containing a detailed description of the Internet’s history, means of accessing the Internet, and some methods of communication over the Internet).

[58] Private communications include e-mail between two or at most a small number of people and real time or instant messages between two people.

[59] Public communications include larger group e-mails, such as listservs and everything else including publicly virtually-fixed postings (e.g. discussion boards). See Ejan MacKaay, Daniel Poulin, & Pierre Trudel (eds.), The Electronic Superhighway 13 (1994)(describing a listserv as “servers which allow messages to be transmitted to lists of users and discussion forums to be held on all sorts of subjects.” To receive e-mail one must “subscribe” to the listserv, although there have been occasional unsubscribed inclusions.); David K. McGraw, Sexual Harassment in Cyberspace: the Problem of Unwelcome E-Mail, 21 Rutgers Computer & Tech. L.J. 491, 493-494 (1995)(discussing the three modes of electronic communication). Throughout this Note electronic communication will be discussed as if it were private e-mail or instant messages sent one-on-one unless otherwise noted.

[60] But see Commonwealth v. Griffin, 456 A.2d 171 (Pa. Super 1983) (indicating the phrase “I ought to kill you” can violate a terroristic threat statute with surrounding circumstances).

[61] MacKaay, Poulin & Trudel, supra note 59, at 145 (citing Victor J. Cosentino, “Virtual Legality,” Byte, at 278 (March 1994)).

[62] McGraw, Sexual Harassment in Cyberspace, supra, note 30, at 496.

[63] Parry Aftab, Protecting Your Children in Cyberspace (publication forthcoming in January 2000)(cited in Alvord, Cyberstalkers beware of the e-law, supra note 1); see also <http://www.cyberangels.org> (visited Nov. 1, 1999)(running web site for victims of cyber crime).

[64] See id., at 502 (“Victims of sexual harassment have reported insomnia, depression, nervousness, headaches, backaches, nausea, loss of appetite, weight change, and fatigue. Further, a harassed employee will no perform as well, resulting in economic damage in terms of reduced promotion and motivation for advancement.”).

[65] See McGraw, supra note 30, at 495-496 (describing organization of an e-mail).

[66] There may be few differences between the anonymous telephone prankster and the e-mail one. For instance, even if the recipient is unaware of subject of subsequent calls or e-mails, the mere fact that you get 400 calls in a day matters; the mere fact that you get 400 e-mail messages in a day from the same person matters. Just as you can block one telephone number, you can usually block one e-mail sender’s address. But both induce fear. See McGraw, supra note 30, at 499 (stating that “having messages show up daily from that user can have a harassing effect even if the victim does not read their contents”). In fact, e-mail can be worse in that the “smart” harasser can use the subject matter line, which is often initially viewable even when mail is unopened, to compose his threat. Thus, the e-mail messages themselves may contain nothing but a subject line of five words, innocuous individually, but in total create an environment of fear.

[67] “Snail mail” is the Internet pseudonym for mail sent through the physical form of the U.S. Postal Service or other conventional form. The reference to a snail is that compared to internet light speed in some places of simultaneousness, the old method of delivery is vexingly slow. Indeed, there is a strong trend away from snail mail in favor of e-mail. See Mike Snider, E-mail use may force Postal Service cuts, USA Today, Oct. 20, 1999 (suggesting that postal service revenue will peak in 2002 causing an “‘unprecedented’ drop in first-class mail beginning in 2003,” due to online transactions and e-mail).

[68] See DOJ Cyberstalking Report, supra note 19 (describing the programs in New York and Los Angeles and how evidence collection techniques can find these “electronic trails”); see also supra note 317 (describing how one racist e-mailer was traced to a public university computer lab, but the authorities were forced to play sit and wait).

[69] See Gene Barton, Taking a Byte Out of Crime: E-Mail Harassment and the Inefficacy of Existing Law, 70 Wash. L. Rev. 465, 490 n.57 (citing telephonic harassment statutes in each of the fifty states); see also infra note 71 (listing state cyberstalking modified laws).

[70] In other words, the common criticism of most statutes is that they are limited because of the use of the actual tool, i.e. telephone, while broader statutes encompass all "wire" communications. The problem is that "air waves" are neither included in current communication statutes in this manner nor traditionally thought of as part of "interstate commerce." See Internal Sprint Company Press Release, “Sprint PCS Puts Web Connection at Your Fingertips,” August 12, 1999 (announcing the first digital wireless Qualcomm phone that can connect to the internet and receive e-mail).

[71] See Alvord, Cyberstalkers must beware of the e-law, supra note 1 (describing the new California law by “updating statutes that once applied only to physical or telephonic harassment” and making it “against the law to harass or terrorize anyone using devices such as pagers, fax machines or computers”); see also id. (stating that 16 states in 1999 have cyberstalking laws including California, Alaska, Arizona, Hawaii, Wyoming, Oklahoma, Illinois, Indiana, Michigan, Alabama, New York, Delaware, Connecticut, Massachusetts, Maine and New Hampshire)(citing DOJ Cyberstalking Report, supra note 19, at n.6).

[72] See United States v. Seidlitz, 589 F.2d 152, 154 (4th Cir. 1978)(stating that the “Federal Wiretap Statute,” Omnibus Crime Patrol and Safe Streets Act Title III of 1968, 18 U.S.C.A. § 2510 (1968), affected only “wire communication” and was limited to voice communications”). Thus, prior to the passage of the Electronic Communications Privacy Act of 1986, amending the former Act, e-mail and stored computer data was not protected under the Fourth amendment as requiring an initial court order before intercepting the communication. F. Lawrence Street, Law of the Internet 100-104 (1997). Similar statutes pertaining to early telephonic harassment were also limited to use of voice communication or an actual telephone receiver. See Alvord, supra note 71 (listing current state statutes).

[73] The Communication Decency Act (CDA) itself was a response to a restriction placed on the legislature in Sable Communications v. FCC, 492 U.S. 115 (1989), but even the amendments enacted after the Baker case to the Communication Decency Act of 1996, 47 U.S.C. § 223(a) and (d), by Senators Exon and later Senator Hyde that surely would have covered Baker’s actions by demonishing indecent speech has since been restricted in ACLU v. Reno, 117 S. Ct. 2329 (1997) and impliedly limited by ApolloMedia Corp. v. Reno, 19 F.Supp. 2d 1081 (N.D.Cal. 1998), aff’d, No. 98-933, --- U.S. ---, 119 S.Ct. 1450 (U.S., April 19, 1999); see also John Wallace & Mark Mangan, Sex, Laws, And Cyberspace 193-194 (1996) (generally describing the dangers of applying old laws carelessly to new technologies, stating):

Each new advance in the technology of communication disturbs a status quo. It meets resistance from those whose domain it threatens, but if useful, it begins to be adopted. Initially, because it is new and a full scientific mastery of the options is not yet hand, the invention comes into use in a rather clumsy form. Technical laymen, such as judges, perceive new technology in that early clumsy form, which then becomes their image of its nature, possibilities and use.

(citing Ithiel De Sola Pool, Technologies of Freedom (1983)).

[74] United States v. Alkhabez, 104 F.3d 1492 (6^th Cir. 1996)(commonly cited according to Alkhabez’ a.k.a. – Jake Baker used by the lower court); see generally Peter Swanson’s Jake Baker Information Page at the University of Michigan, <“http://krusty.eecs.umich.edu/people/pjswan/Baker/Jake-Baker.html”> (visited Dec. 22, 1999)(hereinafter the “Baker Homepage”)(containing extensive links on the evolution of the Baker case from his arrest to the decision at the Sixth Circuit, with media reports, timeline, legal documents, the Baker stories, and newsgroups); Heather Brooks-Szachta, U.S. v. Jake Baker: the Role of Unique Features of Electronic Mail in a “True threat” Analysis, student paper, <“http://www.libraries.wayne.edu/%7Ejlitman/pbrooks.html”> (visited Dec. 24, 1999)(containing a narrative and analysis of the case and the court’s reasoning in declining to accept the government’s positions).

[75] See Baker Homepage, supra note 74. Following the announced arrest of Baker under section 875(c), like most liberal college campuses, the community and students appeared to rally behind Baker's right to publish anything online. The Michigan Student [Government] Assembly (MSA) even passed a resolution abhorring the University's actions in expelling Baker. But at this time, the actual content of the stories and e-mails was secret. See id. (indicated that after the Vice-President of the MSA read through part of one story it made her so sick she had to stop reading).

[76] Alkhabez, 104 F.3d at 1492 (6^th Cir. 1996).

[77] Id.

[78] The argument existed that these stories were merely genres of hard-core pornography and were untrue. It is the author’s opinion that indeed, in the circumstances found, the stories were merely disguises for true intentions. Henceforth, quotations will not be used around “fictional stories.”

[79] A Usenet bulletin board is only one form of electronic communication with contents publicly available on the Internet. See Cyberspace, Communications, Inc. v. Engler, No. 99-CV-73150, 1999 WL 557725 (E.D.Mich 1999)(detailing the nature of the Internet, its history, e-mail, Usenet newsgroups, the World Wide Web as enunciated in ACLU v. Reno, 929 F.Supp. at 830-38 (E.D. Pa. 1996)). Although Baker only posted on one bulletin board within the Usenet, the system itself is the conceptual equivalent to a social party where each group of people stand grouped by a particular topic with signs over their heads. Technically, a Usenet is a “network-scale computer conferencing system that manages multiple public conversations, organized hierarchically into specific topics. William S. Byassee, Jurisdiction of Cyberspace: Applying Real World Precedent to the Virtual Community, 30 Wake Forest L. Rev. 197, 201 n.16 (1995). Strictly speaking, it is not a network but a bulletin board service, allowing postings of stories in various “newsgroups.” See MacKaay, Poulin & Trudel, supra note 59, at 13.

[80] “Snuff” is not defined in any major dictionary, however, it is commonly used as a slang term for what can be called the most severe and violent pornography and obscenity. See Joel Schumacher, Director, 8MM, Columbia Tri-Star Pictures, 1998 (depicting the inner workings of the snuff film industry and black market of pornography). Although only the story Baker wrote, entitled “Doe” (see infra note 82), led to the search and arrest, Baker had formerly written and posted several other violent “stories.” In “Gone Fishin” the protagonist and a friend have fun raping and murdering the friend’s sister using a power drill, pliers, and a box of needles; in “Going for a Walk” Baker detailed a forceful abduction, rape and murder of another young girl who was jogging by him. John Wallace & Mangan, Sex, Laws, And Cyberspace, supra note 73, at 64-65; Baker Homepage, supra note 74 (containing the entire narrative of all four of Baker’s stories).

[81] From the initial days the student’s name was not released to the public but was referenced in the initial affidavit by an FBI agent accompanying to get a warrant for Baker’s arrest and the media as “Jane Doe.” Baker Homepage, supra note 74.

[82] Alkhabez, 104 F.3d at 1497 n.1 (6^th Cir. 1996)(Krupansky, J., dissenting). The Doe story and the series of e-mail communications between the two are reprinted in the Second Circuit case and are available online to attest to the brutality against women and what the ACLU believes should be protected speech. In fact, the dissent even said that Doe, written in the first person about Baker’s classmate, is in fact “a relatively mild exemplar of the bestial genre of Baker’s fiction.” Id.

This graphic tale of torture, rape and murder features the narrator and a friend tying the victim by her hair to a ceiling fan. She is then beaten with a wire brush and whisk, sexually tortured with a clamp (among other things), sodomized with a hot curling iron, forced to perform oral sex, mutilated with a knife, and raped. The victim is eventually murdered when the perpetrators pour gasoline over her and light a match. According to the government, Baker also gave out Doe’s address to a group of Internet users who asked for more details from Baker.

Brooks-Szachta, supra note 74; see also <http://www.nostatusquo.com/ACLU/Porn/Baker/doe.html> (reprinting “Doe”); Baker Homepage, supra note 74.

[83] Wallace & Mangan, supra note 73, at 64.

[84] Initially the police charged Baker in connection with the story posted. Realizing there would be a substantial obstacle with the First Amendment, that charge was rescinded and a second one focusing more on the dialogue contained in the e-mails was filed against Baker.

[85] Brooks-Szachta, supra note 74.

[86] This is the actual communication that took place between Abraham Alkhabez (a.k.a. Jake Baker) and Arthur Gonda. See United States v. Alkhabez, 104 F.3d 1492 (6^th Cir. 1996)(detailing electronic communications between defendants). While the case, statute and now exemplified story, see supra note 82 (detailing the “Doe” story), have been discussed in themselves, the background of the case provides an excellent example of how threats and harassment through electronic communication pose a different problem from the “true threat” often thought required to bypass the First Amendment. Id.

[87] As will be shown, the prosecutor would have had a better chance to secure a conviction had he package the charges to include both the story and the e-mails.

[88] United States v. Baker, 890 F.Supp. 1375 (E.D.Mich. 1995)(J. Carlson).

[89] The ACLU submitted an amicus curae brief in support of affirming the lower court’s dismissal. Alkhabez, 104 F.3d at 1492 (6^th Cir. 1996).

[90] United States v. Alkhabez, 104 F.3d 1462 (6^th Cir. 1996).

[91] Id.

[92] Beyond the scope of this note is the potential that the courts may view the specific electronic medium, whether e-mail or a public posting, differently, with the e-mail the equal to a private conversation protected by freedom of speech whereas the posting subject to the standards and legal history of freedom of press.

[93] This is exactly what did not happen in Ann Arbor, Michigan following the announced arrest of Baker. See Baker Homepage supra note 74 (discussing in context the reaction at the Ann Arbor campus).

[94] One theory behind the initial charges was that although Baker had a right to think what he did, once it was communicated to another in writing, particularly one who shared his desire to act, it became criminal conspiracy. See infra note 97 and accompanying text; Baker Homepage, supra note 74 (containing a copy of the initial FBI affidavit from Feb. 9, 1995 quoting Baker as saying, “Torture is foreplay, rape is romance, snuff is climax,” portions of the Doe story, and portions of one e-mail exchange).

[95] Alkhabez, 104 F.3d at 1499 (6^th Cir. 1996)(citing to Count I of the indictment against Baker).

[96] There is the adage in the cyber world that privacy, although strenuously argued for, does not exist short of the best encryption technologies, and that a person should not write anything that they do not want an unknown third person to read on the front page of a newspaper. Lucky for this potential victim, and perhaps others, neither the sender of the e-mail or posting in this case followed this adage or sought to protect files through encryption.

[97] See Baker Homepage, supra note 74 (containing a copy of the FBI affidavit from Feb. 9, 1995 quoting Baker in one e-mail message stating:

I just picked up Bllod (sic) Lust and have started to read it. I’ll look for ‘Final Truth’ tomorrow (payday). One of the things I’ve started doing is going back and re-reading earlier messages of yours. Each time I do, they turn me on more and more. I can’t wait to see you in person. I’ve been trying to think of secluded spots, but my area knowledge of Ann Arbor is mostly limited to the campus. I don’t want any blood in my room, though I have come upon an excellent method to abduct a bitch ---

As I said before, my toom (sic) is right across from the girl’s bathroom. Wiat (sic) until late at night, grab her when she goes to unlock the door. Knock her unconscious and put her into one of those portable lockers (forgot the word for it), or even a duffle (sic) bag. Then hurry out to the car and take her away . . . what do you think?

before including another response by Gonda that, “I am thinking more and more about ‘doing’ a girl. I can picture it so well . . . and I can think of no better use for their flesh. I HAVE to make a bitch suffer!”).

In fairness to the lower court, of the five counts against Baker, counts II and III that contained this e-mail exchange did identify a class of would-be targets “with sufficient specificity,” unlike the other three charges, but nonetheless found that Baker’s conclusion, “what do you think?,” was merely a discussion of a crime, “not tantamount to declaring an intention to commit the crime” and not “unequivocal.” Baker, 890 F.Supp. 1375, 1388-1389.

However, the indictment on 'Count I' neglected to indicate Gonda’s reply, which was:

I think that it is best to disconnect yourself as much as possible from the crime. The police, would surely come around asking questions … leaving with a huge bag may look very suspicious to anyone who might see you. Also, she might scream when you hit her, arousing the suspicion of the other people in the dorm … a dorm may be too populated for an abduction … also, it would be better to go for complete strangers.

Id. at 1495, n.5 (Krupansky, J., dissenting). Count V against Baker, following his transmission of at least one story to Gonda, and the statement that he was thinking of how they could torture “this very very petite and cute, south American girl in one of [Baker’s] classes,” also omitted Gonda’s response to Baker that:

Thanks for the stories, Jake … I am buying a car this week. I am shopping around for it now, and I shaould [sic] have it on the road by this weekend hopefully. I will definitely come and see you when I have the time .. I am going to read the stories and masturbate now.

Id. at 1501, n.7 (Krupansky, J., dissenting). Contrary to the majority’s decision at the appellate level, these e-mails strongly suggests that a conspiracy was occurring and that Baker represented even to the “rational” Gonda his threats.

[98] See id. (stating in response to Baker’s abduction e-mail, Gonda said that, “I am thinking more and more about ‘doing’ a girl. I can picture it so well . . . and I can think of no better use for their flesh. I HAVE to make a bitch suffer!”). The Teale-Homolke serial killings became famous after a man and wife were arrested and convicted of brutally raping, torturing and then killing two young 14 and 15 year old girls, which latter led to the discovery of dozens of such victims. See, e.g., Teale Tales Digest, <“http://www.cs.indiana.edu/canada/TealeTales.TXT”> (containing links and reprints of dozens of articles on the slayings); Anne Swardson, Unspeakable Crimes – This Story Can’t Be Told in Canada. And So All of Canada Is Talking About It, Washington Post, Nov. 23, 1993 (containing the first detailed account of the slayings, a case that led to the State-wide ban on materials about it in Canada); Anita S. Brenner and B. Metson, Electric Word: Paul and Karla Hit the Net, Wired, 2.04 (1994); Russell Watson and Linda Kay, The Barbie-Ken Murders, Canada: Blacking out a horror story, Newsweek, Dec. 6, 1993, at 36.

[99] See Alkhabez, 104 F.3d 1492, 1495 (6^th Cir. 1996)(Krupansky, J., dissenting)(stating that “Baker and Gonda subsequently exchanged at least 41 private computerized electronic mail (e-mail) communications between November 29, 1994 and January 25, 1995,” concurrent with posting the Doe and other stories).

[100] See id. at 1495 (Krupansky, J., dissenting)(listing in detail all five counts). In a thorough and detailed description of the case, the dissent also includes several e-mails which did not make it into the indictment that lead to a more credible understanding that the e-mails were more than just two friends sharing fantasies. See supra notes 80-82 and accompanying text (describing the stories).

[101] Baker, 890 F.Supp. 1375, 1380. Thusly, Baker and the Sixth Circuit sit in the majority’s interpretation that 875(c) is a general intent crime. However, what the court then requires of a general intent is perhaps drawn out too much.

[102] Id. (citing U.S. v. DeAndino, 958 F.2d 146, 149 (6th Cir. 1992)).

[103] Id. at 1384.

[104] See id. at 1385 (discussing the communications between Gonda and Baker).

In order to be constitutionally sanctionable, the statements Baker made must meet [United States v. Kelner’s] ‘unequivocal, unconditional, immediate, and specific’ standard. As Justice Brandeis wrote: Fear of serious injury cannot alone justify suppression of free speech … To justify suppression of free speech there must be reasonable ground to fear that serious evil will result if free speech is practiced. There must be reasonable ground to believe that the danger apprehended is imminent.

Id. at 1387 (citing Whitney v. California, 274 U.S. 357, 376 (1927)(Brandeis, J., concurring)). Understanding that the best mode for communicating a threat would have been the telephone in the 1920’s, without a deeper understanding of the psychology of e-mail and the Internet today, one may suspect whether any Justice might say the same today.

[105] Id. at 1389. However, hindsight debate and discussion suggests that the divisive nature of this case proves contrary to the reasonableness of Judge Cohn’s decision. For instance, one line of dicta at the end suggests that just as others were biased against Baker, Judge Cohn may have demonstrated a dislike of University problems reaching the courts. See id. at 1391 (stating that “The case would have been better handled as a disciplinary, as the University of Virginia proceeded in a similar situation, despite whatever difficulties inhere in such a course.” (citing Robin Blaber v. University of Victoria (March 14, 1995) Victoria 94-4823 (BCSC)(suggesting that the best course of action would merely have been to restrict the student’s access to University computer accounts)). Indeed, just as the identity of Gonda is unknown and called into question, Judge Cohn himself could have been Gonda just as I could have been. See id. at 1386 (“Gonda’s identity is entirely unknown; ‘he’ could be a ten year old girl, an eighty year old man, or a committee in a retirement community playing the role of Gonda gathered around a computer.”).

[106] See Alkhabez, 104 F.3d 1492, 1494 (6^th Cir. 1996)(“Because Congress’s intent is essentially a question of statutory interpretation, we review the district court’s decision de novo.”)(citations omitted).

[107] Id. at 1493-1494 (citing for the three elements of 875(c), U.S. v. DeAndino, 958 F.2d 146, 148 (6th Cir. 1992)).

[108] Id. at 1492 (6^th Cir. 1996).

[109] Id. at 1493.

[110] Alkhabez, 104 F.3d 1492, 1495 (6^th Cir. 1996).

[111] Id. at 1497 (Krupansky, J., dissenting).

[112] Id. at 1502 (Krupansky, J., dissenting).

[113] Id. at 1497 (Krupansky, J., dissenting).

[114] Id.

[115] Id. at 1503 (Krupansky, J., dissenting).

[116] See Alkhabez, 104 F.3d 1492, 1504 n.10 (6^th Cir. 1996)(Krupansky, J., dissenting)(stating that “there can be no doubt that a rational jury could find that some or all of the minacious [sic] communications charged in the superseding indictment against Baker constituted threats by the defendant to harm a female human being” before concluding that in each of the five counts a credible threat was made against an identifiable category of individuals); see also United States v. Carrier, 672 F.2d 300 (2d Cir. 1982)(discussing in the context of 871(a) and a threat to the President that it was error for the Judge to withhold from the jury’s consideration and decide as a matter of law that no rational person could determine the words spoken were a threat).

[117] See Alkhabez, 104 F.3d at 1505-1506, n.14 (6^th Cir. 1996)(Krupansky, J., dissenting)(stating that applying the language from Kelner was too strict and “unjustifiably constrains, to a degree not demanded by the First Amendment, the authority of Congress to punish threats.”

[118] See Wallace & Mangan, supra note 73, at 71 ([Federal Magistrate at the district level]:

“Justice Carlson stated, ‘If we only had a story of rape and torture, we would have the issue of the First Amendment here, but there are at least two additional elements to the case. Mr. Baker named an individual at the University of Michigan as a subject of his story and had discussion with another person about where and how the actual assault could be carried out. This is more than just a story.’”);

see also id. at 63-81 “A Stalker in Cyberspace” (describing much of the often left out details of the background on the Baker case from the original report of the story by a Michigan alumni in Moscow to the Sixth Circuit decision). Posted on a “mich.edu” site, Michigan University could have followed the Canadian University of Waterloo’s example in shutting down the site as potentially obscene and hence illegal.

[119] Communication Workers of America v. Beck, 487 U.S. 735, 762 (1988).

[120] By comparison the courts applying § 875(c) have used other sections of Chapter 41. See, e.g., 18 U.S.C. § 876 (1994) (governing the mailing of threatening communications); 18 U.S.C. § 877 (1994)(governing the mailing of the same from foreign countries); 18 U.S.C. § 871 (1994)(governing threats against the President).

[121] Pub. L. No. 104-104, s. 502, 110 Stat. 56, 133-34 (1996); see also 18 U.S.C. §§ 230 (1994 & Supp. 1997)(providing protection for private blocking and screening of offensive material); Title 47, Chapter 71 (relating to obscenity).

[122] See Alkhabez, 104 F.3d at 497 n.1, supra notes 80-82. As noted, in “Doe” the mutilated victim was painfully drenched in gasoline before being burned alive in her dormitory. Although the Baker court did not discuss 18 U.S.C. § 844(e) (1999), it reasonably could have also applied. See also infra Section II(A) (discussing).

[123] See Section II(A).

[124] See supra note 71 and accompanying text (discussing); Section II(D) (sampling of state statutes).

[125] See DOJ Cyberstalking Report, supra note 19, at n.7 (listing modified state harassment and threat statutes for cyberstalkers). For current state harassment and threat statutes, see, e.g., Cal Penal Code § 653m(b), (c)(West 1988 & Supp. 1996)(limited to harassment at home or work); Iowa Code § 708.7 (1999); Kan. Stat. Ann. § 21-4113 (Supp. 1994); Minn. Stat. § 609.749 (Supp. 1995); Neb. Rev. Stat. § 28-1310 (1989); Mo. Rev. Stat. § 565.090 (1979); Conn. Gen. Stat. Ann. § 53(a)-183 (West 1994), as amended by 1995 Connecticut. Legis. Serv. 95-143 (West); Idaho Code § 18-6710(1)(Michie 1995); see also Eugene Volokh, Freedom of Speech in Cyberspace from the Listener’s Perspective: Private Speech Restrictions, Libel, State Action, Harassment, and Sex, 1996 U. Chi. Legal F. 377 (1996)(detailing other telephonic harassment laws); American Jurisprudence, Telecommunications, ch. XII, §206, Threats, Harassment, and Use of Obscene Language, 74 Am. Jur. 2d Telecommunications § 206 (1974 & Supp. 1999)(same).

[126] See Susan E. Gindin, Guide to E-Mail and the Internet in the Workplace 21, 34-36 (1999)(citing cases of employees using e-mail to harass others and cases pursued under Title VII).

[127] See generally, Evelyn Oldenkamp, Pornography, the Internet, And Student-To-Student Sexual Harassment: A Dilemma Resolved with Title VII and Title IX, 4 Duke J. Gender L. & Pol’y 159 (1997)(discussing sexual harassment laws and as applied to electronic communications in a hostile work environment); Buchanan Ingersoll, Disparaging E-mails and Sexual Harassment Are Reasons To End Employment, 8 No. 7 Pa. Employment L. Letter 7 (April 1998); Eric D. Randall, Internet Pornography and Harassment; Trout v. City of Akron, Ohio Court of Common Please, No. CV-97-115879, 12/15/98, 1999 No. 2 Discrimination L. Update 7 (1999).

[128] 18 U.S.C. § 875(c). The fine can be up to $250,000. Id.

[129] 958 F.2d 146 (6th Cir. 1992).

[130] Id. at 148; see also United States v. Francis, 975 F. Supp. 288, 292 (S.D.N.Y. 1997)(citing DeAndino and stating the same three actus reus elements of 875(c)).

[131] See supra note 97 (discussing abduction in an e-mail series).

[132] See United States v. Pennell, 144 F.Supp. 317 (N.D. Cal. 1956)(stating that an intent to extort money or other thing of value is not necessary as there mere transmission of a communication in interstate commerce threatening to injure the person of another is a violation of 875(c)).

[133] Potter, Jake Baker Case, supra note 38, at 782-783 (describing legislative history and historical application of 875(c)).

[134] Although Baker was the first case fully prosecuted under 875(c), other instances of harassment on-line have been detailed. See, e.g., Joshua Quittner, The Love Connection; Erotic Encounters Heat Up Electronic Boudoir, Newsday, Nov. 7, 1993, at 3 (describing an assailant named “Mr. Bungle” who acted as a cyber-rapist in violent scenes in a Multiple User Dimension (MUD)); Lance Rose, Netlaw – Your Rights in the Online World 210-211 (same); McGraw, Sexual Harassment in Cyberspace, supra note 30, at 517 n.8 (same); see generally Rose, Netlaw, ch. 8 “Adult Materials and Themes.” Congress also retains the reference to extortion to distinguish between threats made with and without extortionate intent. See id. at 783 n.22 (citing statute and different levels of fines depending on whether extortion is involved).

[135] See also Section III (discussing the constitutional issues of threats in electronic speech).

[136] See infra (same).

[137] See generally Richard J. Bonnie et al., (eds)., Criminal Law (1997).

[138] Id. at 875(c).

[139] 7 F.Supp.2d 1196 (D. Utah 1998).

[140] 514 U.S. 549 (1995).

[141] Id.

[142] Kammersell, 7 F.Supp.2d 1196, 1198 (D. Utah 1998).

[143] Id. at 1196. The court also concluded that the intended recipient or the target of the threat need not receive the threatening communication under 875(c). Id. at 1198; see also Cyberspace, Communications, Inc. v. Engler, No. 99-CV-73150, 1999 WL 557725, at *6 (E.D. Mich. 1999)(describing with supporting cases how the Internet and the nature of online communication is already recognized as interstate in nature subject to the interstate commerce clause). See id. at 1196, 1199 (stating that “‘transmits … in interstate commerce’ is not ambiguous)(citing Telephone News System, Inc. v. Illinois Bell Tel. Co., 220 F.Supp. 621, 638 (N.D. Ill. 1963)(Transmission is sending); United States v. Reeder, 614 F.2d 1179, 184 (8th Cir. 1980)).

[144] Kammersell, 7 F.Supp.2d at 1198.

[145] Const. Art. I, § 8 (“[1] The Congress shall have Power … [3] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”).

[146] See Robert K. Kelner, United States v. Jake Baker: Revisiting Threats and the First Amendment, 84 Va. L. Rev. 287, 298 (1998)(describing the confusion as between the mens rea and the “true threat” inquiry).

[147] Alkhabez, 104 F.3d at 1501 (Krupansky, J., dissenting).

[148] Id. (emphasis added).

[149] Another convincing argument by the dissent in Alkhabez is that Congress never intended the actus reus element of the statute to be unnecessarily restricted as it did with other “threats” in adjoining sister sections. See id. at 1502 (Krupansky, J., dissenting)(discussing section 875(b) as containing a requirement absent in 875(c)).

If Congress, by enacting section 875(c), had desired to proscribe only those threats intended by the maker to intimidate someone, it could have clearly accomplished that result as it did under section 875(b) wherein it directed that threats under that subsection must be issued with the intent to extort value

Id.

[150] See United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240-241 (1989).

The plain meaning of legislation should be conclusive, except in rare cases [in which] the literal application of a statute will produce a result demonstrably at odds with the intentions of the drafters. … Rather as long as the statutory scheme is coherent and consistent, there generally is no need for a court to inquire beyond the plain language of the statute.

(quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)).

[151] See id. at 1494-1495 (discussing how under United States v. Bellrichard, 779 F.Supp. 454, 459 (D.Minn. 1991), the majority assumed that a contrary interpretation of the word “threat” absent an intent to be a tool of intimidation, would at a literal level result in absurdities unintended by Congress). However, when Alkhabez is read in conjunction with the Griffin case, supra note 150, it appears that the majority in Alkhabez took their interpretative role too far. Indeed, even in Bellrichard, 801 F.Supp. at 266, the court convicted the defendant and in imposing tougher sentencing requirements, said that, “given the volume and nature of the defendant’s written communications, the conduct … could hardly be viewed as a ‘single instance’ under the guidelines.” Id. The Alkhabez majority nonetheless still ignored its own simpler understanding of the actus reus requirement in DeAndino. See supra notes 104-105, 149 and accompanying text.

[152] This statutory discussion is nonetheless still absent any discussion of what is a ‘threat’ under the constitution, infra Section III(A). Indeed, courts have unfortunately and unnecessarily confused others when referring to the statutory threat requirement as a “true threat.” See United States v. Whiffen, 121 F.3d 18 (1st Cir. 1997)(demonstrating this dual-circle principle); United States v. Sovie, 122 F.3d 122 (2d Cir. 1997)(discussing the same statutory requirement in terms of what is a “true threat”); United States v. Fulmer, 108 F.3d 1486, 1491-1493 (1st Cir. 1997)(discussing in one case both the statutory and constitutional requirements as “true threats”).

[153] See generally, supra note 30 (attributing forthright to the authors of these respective notes their inclusion of most of the more often cited cases to circuit splits on the mens rea issue between being a specific intent or general intent crime); Catherine T. Clarke, From Crimnet to Cyber-Perp: Toward an Inclusive Approach to Policing the Evolving Criminal Mens Rea on the Internet, 75 Or. L. Rev. 191 (1996)(discussing general problems our proving Internet intent in other contexts).

[154] In Re: Amendments to Rule of Judicial Administration, 2.051—Public Access to Judicial Records, 651 So. 2d 1185 (Fla. 1995); see also Ian C. Ballon, Linking, Framing and Other Hot Topics in Internet Law and Litigation, 520 PLI/Pat 167 (1998)(including sections on spam, obscenity and free speech, internet crimes and threats transmitted via e-mail); McGraw, Sexual Harassment in Cyberspace, supra note 30, at 491; Cal. Penal Code § 646.9 (state harassment statute applicable to electronic stalking).

[155] United States v. Martinez, 49 F.3d 1398, 1401 (9th Cir. 1995).

[156] Several circuits have never addressed the mens rea of 875(c) directly, including the 7th, 8th, 10th, and 11th Circuits. See Annotation, Validity, Construction, and Application of 18 U.S.C.A. § 875(c), 34 A.L.R. Fed. 785 (1977 & Supp. 1998)(detailing 875(c)).

[157] See United States v. Whiffen, 121 F.3d 18, 21 (1st Cir. 1997)(holding that 875(c) is a general intent crime and explicitly rejecting Twine)(quoting United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997)).

[158] See United States v. Francis, 164 F.3d 120, 123 (2d Cir. 1999)(holding that the interstate transmission of threats is a general intent crime); United States v. Sovie, 122 F.3d 122, 125 (2d Cir. 1997)(detailing test for a “true threat” is one that is objective, namely, whether an ordinary, reasonable recipient who is familiar with context of threat would interpret it as threat of injury, and stating that “it is not necessary for the Government to prove that [the defendant] had a specific intent or present ability to carry out his threat, but only that he intended to communicate a threat of injury through means reasonably adapted to that purpose”).

[159] See United States v. Himelwright, 42 F.3d 777, 783 (3rd Cir. 1994)(holding that to establish violation of 875(c) “the government bears only the burden of proving that [the defendant] acted knowingly and willfully when he placed the threatening phone calls and that those calls were reasonably perceived as threatening bodily injury”)(reversing on evidentiary grounds).

[160] See United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994)(stating that contrary to Twine, the “better-reasoned” analysis leads to only a general intent requirement); but see United States v. Dutsch, 357 F.2d 331, 333 (4th Cir. 1966)(suggesting that a higher intent may have been once required because conviction under “875(c) requires a showing that a threat was intended” (quoting Seeber v. United States, 329 F.2d 572, 577 (9th Cir. 1964)).

[161] See United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997)(holding that the offense of transmitting threatening communications is a “general intent” crime in the absence of any mens rea requirement in the statute and adopting the position take then by the Third, Fourth and Sixth Circuits).

[162] See United States v. DeAndino, 958 F.2d 146, 150 (6th Cir. 1992)(stating that “875(c) does not require a specific intent in regard to the threat element of the offense, but only general intent” and that it is “not an express element of section 875(c) according to the plain words of the statute”); United States v. Alkhabez, 104 F.3d 1492, 1495 (6th Cir. 1997)(adopting a reasonable person and general intent standard); United States v. Cox, 957 F.2d 264, 266 (6th Cir. 1992)(stating that so long as the threat had a “reasonable tendency to create apprehension” in others, it was a general intent crime if he knowingly transmitted the threat).

[163] See United States v. Whiffen, 121 F.3d 18 (10th Cir. 1999)(adopting “with full force to 18 U.S.C. § 875” the reasons enunciated in Fulmer).

[164] See Potter, Jake Baker Case, supra note 38, at 805 n.43.

[165] See generally, Harv. L. Rev. Ass’n, “Criminal law-First Amendment-First Circuit Defines Threat in context of federal threat statutes,” 111 Harv. L. Rev. 1110 (Feb. 1998)(discussing the case and the objective test used in connection with 876 [which is applied uniformly in the context of 875] that contains subjective elements).

[166] 108 F.3d 1486 (1st Cir. 1997)(reversing on non-875(c) grounds).

[167] Fulmer, 108 F.3d 1486, 1491-1492 (1st Cir. 1997)(emphasis added). Thus, in the Baker case Baker should have reasonably understood that had the e-mail messages been, for instance, directed at resident’s of his dormitory under Count II that they would perceive it as a threat.

[168] Thus, Fulmer helps solve the debate between Twine and the majority of the circuits.

This test takes into consideration the context in which the remark was made and avoids the risk that an otherwise innocuous statement might become a threat if directed at an unusually sensitive listener. This approach also protects listeners from statements that are reasonably interpreted as threats, even if the speaker lacks the subjective, specific intent to threaten, or, as would be more common, the government is unable to prove such specific intent which, by its nature, is difficult to demonstrate.

Whiffen, 121 F.3d at 21.

[169] Harv. L. Rev. Ass’n, Criminal Law-First Amendment-First Circuit Defines Threat in Context of Federal Threat Statutes -- United States v. Fulmer, supra note 165, at 1110 (1998)(describing Fulmer). Despite those who believe that “rarely will the two [reasonable speaker and reasonable hearer standards] differ,” when the threat is directed to a third-party or conspiring party, the subjective element may actually hinder the objectiveness of the standard. Id. at 1113. For instance, it may even produce absurd results to force a court to examine at the guilt stage only the defendant’s intent – i.e., a rational person may readily admit to sending an e-threat, and arguably it could be understood as a non-threat such as romantic. See United States v. Freeman, 176 F.3d 575 (1st Cir. 1999)(discussing the sentencing procedures following a guilty plea of 875(c) under U.S.S.G. § 2A6.1(b)(2)(1995) after making eight interstate prank phone calls to a hotline threatening the abuse of an alleged stepdaughter that he “might leave her to die” despite not having a stepdaughter); United States v. Sovie, 122 F.3d 122 (2d Cir. 1997)(discussing 875(c) and the sentencing levels).

[170] See Potter, Jake Baker Case, supra note 38, at 789; 34 A.L.R., supra note 156 (similarly adopting a definition of a threat under a general intent and objective classification). Yet another way to phrase this objective standard for the jury is whether, according to contemporary community standards, a rational and reasonable recipient of that communication would consider it to be a “threat.”

In response to a charge of violating 875(c) a defendant will likely raise several confrontational issues. First, the accused may argue that he was too distant to actually carry out threatened action, but this is wholly inadequate. See United States v. Lincoln, 589 F.2d 379 (8th Cir. Mo.)(stating that under the sister Section 876 of Chapter 41, ability to carry out the threatening action is not an element in the offense). Second, there will likely be challenges to the offense that it was not a constitutionally required true threat, discussed infra Section III(A). Third, the prosecutor may have practical problems in admitting electronic evidence. See infra notes 309-313 and accompanying text (discussing evidentiary problems and exceptions to the rules of evidence.

This interpretation is certainly the only rationale policy choice. For instance, if a prosecutor would have to prove the mens rea element of 875(c) is satisfied solely with evidence of the actual sender’s intent, including what the sender believed was a “threat,” in his intent to “threaten,” it may actually produce absurd results at the guilt stage. Why? Because even a rational person may readily admit to sending an e-threat on the grounds that arguably it could be understood as a non-threat, such as being romantic, a warped sense of humor, or something else. See also supra note 169.

[171] Fulmer, 108 F.3d 1486, 1492 (1st Cir. 1997)(citations omitted).

[172] 853 F.2d 676 (9th Cir. 1988)(holding that under 875(c) and 876 the “transmission via telephone and mail of threats were specific intent crimes” thus enabling the defense of diminished capacity to be presented); see also United States v. King, 122 F.3d 808, 808-809 (9th Cir. 1997)(reaffirming Twine).

[173] 329 F.2d at 577. The court made this statement notwithstanding earlier referring to the section as a general intent crime and the case of United States v. LeVison, 418 F.2d 624 (9th Cir. 1969)(stating the a general intent to threaten is an essential element of the crime).

[174] Since Twine, under Title VII of the Civil Rights Act of 1964 the Ninth Circuit Court has supported an action of sexual harassment and discrimination that occurred in part in e-mails. See Yamaguchi v. United States Dept. of the Air Force, 109 F.3d 1475 (9th Cir. 1997)(examining a case of harassment that initially began with “sending her unwanted notes, gifts and e-mail messages” before the harassment culminated in a rape). The importance of the availability of these defenses is not to be underestimated. See United States. v. Jain, 174 F.3d 892, 892 (7th Cir. 1999)(describing how Dr. Jain was found not guilty by reason of insanity due to developing paranoid schizophrenia when she was charged with transmitting threats of violence through interstate commerce under both 875(c) and 844(e)).

[175] Twine, 853 F.2d at 679.

[176] See id. (stating that the Act of June 25, 1948, ch. 645, 62 Stat. 741, enacted both sections concurrently).

[177] See id. (citing to the statutes).

[178] 329 F.2d 572 (9th Cir. 1964).

[179] 416 F.2d 874 (9th Cir. 1969).

[180] Seeber, 329 F.2d 572, 577 (9th Cir. 1964).

[181] See Twine, 853 F.2d at 680 (describing Seeber).

[182] Id. (quoting Seeber); see also United States v. Holder, 302 F.Supp. 296 (D.C. Mont. 1969)(stating that the communication containing the threat must be transmitted “knowingly” and not because of mistake or inadvertence or other innocent reason).

[183] Twine, 853 F.2d at 680.

[184] 504 F.2d 818, 819-820 (9th Cir. 1974).

[185] Twine, 853 F.2d at 680.

[186] Id. at 680.

[187] See United States v. Kelner, 534 F.2d 1020, 1025 (2d Cir. 1976), cert. denied, 429 U.S. 1022 (1976)(distinguishing the dicta from Watts’ discussion of 871 and its’ “willfulness” element from the lack of any express mens rea element in 875(c), and that even if 871 was correct, other courts have almost uniformly rejected Judge Wright’s finding in Watts that a showing of specific intent was required).

[188] 418 F.2d 624, 626-627 (9th Cir. 1969).

[189] Twine, 853 F.2d at 680 (quoting LeVision).

[190] Id.

[191] From this point the court then states that its conclusion rests “primarily” on Seeber. If this is the case, the Twine court appeared to set up its own straw man in rationalizing its decision as agreement with the other circuits’ holdings and reasons not even present in this case. See Twine, 853 F.2d at 681 n.4 (stating that, “our holding that specific intent to threaten and transmit the threat are essential elements of the crimes defined by §§ 875(c) and 876 does not conflict or disagree with the clear pronouncement of other circuits [when a] specific intent (or ability) to carry out the threat is not an essential element under these sections”)(citations omitted)(emphasis added)). Indeed, no where in Twine was the issue of carrying out the threat even raised. This wholly ignores the many circuits that have determined 875(c) does not require a “specific intent to threaten and transmit the threat.”

[192] Roy, 416 F.2d at 875.

[193] See Twine, 853 F.2d at 680 (quoting Roy, 416 F.2d at 877-878).

[194] Id. at 681; see also Potter, Jake Baker Case, supra note 38, at 787.

[195] Twine, 853 F.2d at 680.

[196] It is possible to argue that the Sixth Circuit has at times opted for a specific intent requirement in reference to an intent to extort. See United States v. Heller, 579 F.2d 990 (6th Cir. 1978)(finding through legislative history that 875(c) required not only a criminal intent element, but also that the intent element be specifically the intent to extort); United States v. Cooper, 523 F.2d 8 (6th Cir. 1975)(finding that the purpose of this section is to prohibit extortion through interstate communications, not merely to protect persons or property, thus a specific intent to extort is required); but compare United States v. DeAndino, 958 F.2d 146, 149-150 (6th Cir. 1992)(remarking that Twine’s reasoning is contrary to the normal rules of statutory interpretation); United States v. Cox, 957 F.2d 264 (6th Cir. 1992)(stating that prosecution need not prove subjective intent, as the threat is not in the mind of the speaker, but the intent element is satisfied with evidence that the defendant knowingly made a telephone call which transmitted the threat); United States v. Pennell, 144 F.Supp. 317 (N.D. Cal. 1956)(indicating an intent to extort money or other thing of value is not necessary).

[197] See, e.g., United States v. Pennell, 144 F. Supp. 320 (D.C. Cal. 1956)(rejecting a motion to dismiss as no intent to extort was necessary and that a letter to an estranged wife stating “the guy you are now shacking up with is going to look real cute with a small hole (size 22) in his head”); United States v. LeVison, 418 F.2d 624 (9th Cir. 1969)(finding a clear threat via a telephone call under 876 when a husband threatened his wife’s mother indicating he would disfigure her face by throwing acid in it); United States v. Honomichl, 174 F. Supp. 273 (D.C. Mont. 1959)(finding a threat existed in letters to former girlfriend stating he would “get even” with her by raping and killing her sister “if he had too”).

[198] Cf. United States v. Heller, 579 F.2d 990 (6th Cir. 1978) (finding that under 875(c) a present ability to carry out a threat was not necessary).

[199] For instance, although many circuits have dealt with 875(c), the direct issue of the mens rea has often not been in contention. See, e.g., United States v. Brandt, 113 F. 3d 127 (8th Cir. 1997)(discussing 875(c) but only in the context where the defendant pled guilty to using interstate communications to threaten injury to another individual after telephoning one of the governor’s aides threatening to kill his local sheriff); United States v. Hill, 943 F.2d 873 (8th Cir. 1991)(discussing another guilty plea to a kidnapping threat under 875(c)); Keys v. United States, 126 F.2d 181 (8th Cir. 1942)(mentioning an early conviction of 875); United States v. Philibert, 947 F.2d 1467 (11th Cir. 1991)(discussing a conviction under 875(c) after the defendant threw a severed horse head onto the steps of the courthouse in the context of his sentence under U.S.S.G. § 2A6.1(b)(1)).

[200] See United States v. Pennell, 144 F.Supp. 317 (N.D. Cal. 1956)(finding that whether a letter to a woman, referring to reports of her immoral conduct and stating that the writer would “deal with you and your cohorts” constituted a threat was a question of fact sufficient to present issue for jury); see also, United States v. Kelner, 534 F.2d 1020 (2d Cir. 1976), Robert K. Kelner, United States v. Jake Baker, supra, note 38, at 313 n.17 (listing other circuit cases viewing this as a jury question instead of mixed questions of law and fact).

[201] See 18 U.S.C. § 875 (Westlaw Keycite, Sept. 6, 1999, citing 256 case citations).

[202] See Lorraine Mercier, The Communications Decency Act, Congress’ First Attempt to Censor Speech Over the Internet, 9 Loy. Consumer L. Rep. 274 (1997)(detailing history, background, and detailed analysis of Act).

[203] See infra notes 216-219 and accompanying text (discussing the CDA and ApolloMedia); see generally, Prohibition of obscene or harassing telephone calls in interstate or foreign communications under 47 U.S.C.A. 223, 50 A.L.R. Fed. 541; Lorraine Mercier, The Communications Decency Act, Congress’ First Attempt to Censor Speech Over the Internet, 9 Loy. Consumer L. Rep. 274 (1997).

[204] ACLU v. Reno stated that the only reason why the provision was not unconstitutional for want of vagueness and overbreadth was because of its relationship to the already unprotected "obscenity." See supra note 73 and accompanying text. See Daniel & Pauken, Educators’ Authority and Students’ First Amendment Rights on the Way to Using the Information Highway, supra note 51 (discussing the ACLU decision in detail). However, in examining this statutory provision through the lens of history, and the landmark decision of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), the argument that other portions of the CDA are valid notwithstanding ACLU is possible. See Thomas L. Tedford, Freedom of Speech in the United States 180 (1993) (reinvoking the original declaration that “the lewd and obscene, the profane, the libelous, and the insulting or ‘fighting words’ ... are no essential part of any exposition of ideas, and are of such slight social value as a step to the truth” that they may be abridged by states without violating the First Amendment (citing Chaplinsky). Of course in making this assertion, the author is aware that the major decisions of Terminiello v. Chicago, 337 U.S. 1 (1949), Feiner v. New York, 340 U.S. 315 (1951) and the more restrictive cases on the fighting words doctrine in Cohen v. California, 403 U.S. 15 (1971) and Gooding v. Wilson, 405 U.S. 518 (1972). See generally id. 167-189 “Provocation to Anger and Words That Wound” (same). But in ApolloMedia:

The 2-1 panel majority found the ‘string of words’ used in Sec. 223 regulate only obscene speech, and hence pass constitutional scrutiny. The panel cited a trip of U.S. Supreme Court cases in which the high court has interpreted nearly identical ‘strings’ as applying to obscenity: Roth v. United States, 354 U.S. 476, 485 (1957); Manual Enterprises Inc. v. Day, 370 v. U.S. 478 (1962); and Hamling v. United States, 418 U.S. 87, 94 (1974). These cases involved 18 U.S.C. Sec. 1461, which involved use of the mail to send ‘obscene, lewd, lascivious or filthy’ written materials.

ApolloMedia article, infra note 205 (suggesting that this argument, although possible, is not sufficient to withstand constitutional scrutiny). Also note that at least in one court, United States v. Kelner, 534 F.2d 1020, 1027 (2nd Cir. 1976), cert. denied, 429 U.S. 1029 (1976), that a doctrinal distinction exists between fighting words or later incitement, and threats. See Robert K. Kelner, United States v. Jake Baker, supra note 38, at 313 n.49.

[205] Opinion in ApolloMedia Corp. v. Reno, 19 F.Supp. 2d 1081 (N.D.Cal. 1998), aff’d, No. 98-933, --- U.S. ---, 119 S.Ct. 1450 (U.S., April 19, 1999); see High Court Upholds Law Banning ‘Harassing’ or ‘Annoying’ E-Mail: ApolloMedia Corp. v. Reno, 16 No. 16 Andrews Computer & Online Indus. Litig. Rep. 6, May 18, 1999 (discussing same)(hereinafter “ApolloMedia article”).

[206] 47 U.S.C. § 223; Communications Decency Act of 1996, Pub. L. No. 104-104, s.502, 110 Stat. 56, 133-134 (1996)(containing the relevant provision is Title V on obscenity and violence), amending the Communications Act of 1934. Section 223 is clearly narrower in its application. See DOJ Cyberstalking Report, supra note 19, (“Section 223 applies only to direct communications between the perpetrator and the victim,” and is “only a misdemeanor, punishable by not more than two years in prison”).

[207] ApolloMedia, 19 F. Supp. 2d at 1084. This does not, of course, challenge those indecent or other communications that are also obscene. Id.; see also Caldwell v. State, 337 A.2d 476 (Md. 1975)(stating that a specific intent to harass is necessary to support a conviction under 223).

[208] ApolloMedia, 19 F.Supp. 2d at 1090 (citing to 47 U.S.C. § 223(1)(A)(ii)) as a “string of words”).

[209] Id. at 1084.

[210] See infra note 215 (Roth, 354 U.S. 476, 485 (1957)). The court also examined Manual Enterprises, Inc. v. Day, 370 U.S. 478 (1962), Hamling v. United States, 418 U.S. 87 (1974), and United States v. 12 200-ft. Reels of Super 8MM Film, 413 U.S. 123 (1973).

[211] ApolloMedia, 19 F.Supp. 2d at 1090.

[212] See Pacifica, 438 U.S. 726, 739-740 (1978)(holding that the terms “indecent” and “obscene” are “written in the disjunctive, implying that each has a separate meaning”).

[213] ApolloMedia, 19 F.Supp. 2d at 1091.

[214] Id. at 1096.

[215] See, e.g., Roth v. United States, 354 U.S. 476, 485 (1957)(“Obscenity is not within the area of constitutionally protected speech.”); Sable Communications of California, Inc. v. FCC, 492 U.S. 115, 126 (1989)(“Sexual expression which is indecent but not obscene is protected by the First Amendment.”); Miller v. California, 413 U.S. 15, (1973)(defining the current three-part test to determine if obscenity exists, including stating that mere nudity is not enough and that it must be “hard core sex”). Of course, in Stanley v. Georgia, 394 U.S. 557, 568 (1969), the court also recognized that merely possessing obscene materials in one’s home is not illegal and that one has a constitutional right to do so. However, it is the transportation of the materials that is not protected. See United States v. Reidel, 402 U.S. 351, 356 (1971)(holding in the context of a prosecution under 18 U.S.C. 1461 that Stanley did not required the Supreme Court to “fashion or recognize a constitutional right in people … to distribute or sell obscene materials”).

[216] See ApolloMedia article, supra notes 203-205 and accompanying text (ApolloMedia stressed unsuccessfully that “Section 223’s several provisions threat obscenity and indecency as distinctly different categories of speech.” Thus, “the panel’s decision is in line with the government’s contention that Sec. 223(a)(1)(A) reaches indecent speech only if it is also obscene.”); see also Reidel, 402 U.S. at 356 (holding in the context of a prosecution under 18 U.S.C. 1461 that Stanley did not required the Supreme Court to “fashion or recognize a constitutional right in people … to distribute or sell obscene materials”).

[217] 573 F.2d 783 (3rd Cir. 1978).

[218] Id. at 787.

[219] Senator Exon’s statement suggest that the CDA provision and intent requirement prohibits punishing transmissions of obscenity between consenting parties. “The CDA’s legislative history, however, provides a different explanation for the inclusion of the intent requirement. In his section-by-section analysis of the CDA, Senator Exon stated:

Section 223(a) of the Communications Act is amended to modernize its application to new technologies and to codify Court and FCC interpretations that this section applies only to communications between non-consenting parties. This revision would make Section 223(a) Constitutional [sic] on its face. Section 223(a) would become the key federal telecommunications anti-harassment provision. Cong. Rec. at S. 8091 (June 9, 1995)(emphasis added).”

ApolloMedia, 19 F.Supp. 2d at 1091. Indeed the statement by the sponsor of the CDA reiterates this sentiment. See id. (“[T]he purpose of adding an intent requirement was to recognize and ratify prior decision holding that Congress intended the scope of the provision to be limited to communications between non-consenting parties.”); see also United States v. Carlin Communications, Inc., 815 F.2d 1367, 1372 (10th Cir. 1987)(holding that 223(a) does not proscribe obscene phone calls between consenting parties).

However, Senator Exon’s statement, if to be taken at it’s face value, suggests that Senator Exon believed that the federal “anti-harassment provision” would govern a larger precipice than, as argued in ApolloMedia, merely obscene communications. Indeed, when read in light of the statement referring to codifying court and FCC opinions, such as Colahan v. New York Telephone Co., FCC Op. 84-76 (Mar. 7, 1984)(finding that “the absence of any reference in the legislative history to obscene phone calls between consenting parties leads us to conclude that such messages simply were not within the ambit the [unamended] Section 223”), Re Intercambio, Inc., FCC Op. 88-158 (April 21, 1988)(detailing a six-part test to support a violation of 223(b)) and Re Audio Enterprises, Inc., FCC op. 88-159 (April 21, 1988) affirms the reasoning of ApolloMedia.

The conclusion is thus that because Baker’s e-mail’s were sent and allegedly read voluntarily by Gonda, and even if the story were involved, it would be necessary to voluntarily and hence consent to accessing and reading it on the Usenet. However, while Baker may nonetheless have escaped liability from 223(a), Stanley v. Georgia, 394 U.S. 557, 568 (1969), may have sufficiently prevented Baker from establishing the necessary constitutional right to distribute either.

[220] 18 U.S.C. § 233(a)(1).

[221] Id. (emphasis added).

[222] This is the same broader language that is used in Section 844(e). This suggestion is not withstanding the CDA was an Amendment originally to the Telecommunications Act.

[223] See 18 U.S.C. § 844(e) (2000)(prohibiting threats that include references to fire or other explosives);18 U.S.C. § 2261A (2000)(prohibiting threats and harassment when one travels across state lines); 18 U.S.C. § 1514 (prohibiting harassment when special conditions are in place); 18 U.S.C. 115(a)(1)(B) (penalizing threats against federal officials or officers); and the Model Penal Code.

[224] See Jason Cummin, Teen Girls in Net Stalk Scare, Ottawa Sun, April 30, 1999 (1999 WL 17622617)(indicating that following the Columbine High School shootings, which left 12 students and a teacher dead, three female students received several e-mails on home computers containing death threats of their own that used “the Internet and e-mail as a terrorizing tool”). Since then, unfortunately, the Columbine shooting has been often quoted in other Internet threats.

[225] See United States v. Viefhaus, 168 F.3d 392 (10th Cir. 1999)(examining a case of threats of bombs placed in 15 pre-selected major U.S. cities by a racist group’s answering machine under 844(e)).

[226] See id. (discussing how the defendant similarly argued that his speech was protected under United States v. Watts, 394 U.S. 705 (1969)). However the court found that: “Viefhaus crossed the threshold from political rhetoric to criminal threat when he stated unequivocally that fifteen cities would be bombed. The fact that a specific threat accompanies pure political speech does not shield a defendant from culpability.” Id. (citing United States v. Crews, 781 F.2d 826, 832 (10th Cir. 1986(per curiam); United States v. Welch, 745 F.2d 614, 618 n.3 (10th Cir. 1984)).

[227] See Alkhabez, 104 F.3d 1492, 1499 (6^th Cir. 1996).

[228] Alkhabez, 104 F.3d at 1507 (Krupansky, J., dissenting)(stating that under United States v. Dolt, 27 F.3d 235, 238 (6th Cir. 1994), this exchange was a conspiracy).

[229] 18 U.S.C. § 2261A (2000). Section 2261A provides that: “Whoever -- (1) travels in interstate or foreign commerce or within the special maritime and territorial jurisdiction of the United States, or enters or leaves Indian country, with the intent to kill, injure, harass, or intimidate another person, and in the course of, or as a result of, such travel places that person in reasonable fear of the death of, or serious bodily injury to, that person, a member of the immediate family (as defined in section 115) of that person, or the spouse or intimate partner of that person; or
(2) with the intent-- (A) to kill or injure a person in another State or tribal jurisdiction or within the special maritime and territorial jurisdiction of the United States; or (B) to place a person in another State or tribal jurisdiction, or within the special maritime and territorial jurisdiction of the United States, in reasonable fear of the death of, or serious bodily injury to-- (i) that person; (ii) a member of the immediate family (as defined in section 115) of that person; or (iii) a spouse or intimate partner of that person, -- uses the mail or any facility of interstate or foreign commerce to engage in a course of conduct that places that person in reasonable fear of the death of, or serious bodily injury to, any of the persons described in clauses (i) through (iii), shall be punished as provided in section 2261(b).” (Emphasis added). This current version of the statute is vastly superior to the original Federal Interstate Stalking Act of 1996. However, even with the emphasized portion in 2261A(2)(B), it still requires the prosecutor to prove that the harasser crossed interstate lines as a substantive predicate in 2261A(1).

[230] Id.; see also DOJ Cyberstalking Report, supra note 19 (discussing how the statute is “largely inapplicable to cyberstalking cases”); 18 U.S.C. § 1952(a) (detailing a similar “Travel Act” when extortion is involved, such as was the case in United States v. McNeal, 77 F.3d 938 (1996)).

[231] See 18 U.S.C. § 2425(1998)(making it a federal crime to use any means of interstate or foreign commerce to knowingly communicate with a child to solicit unlawful sexual activity); 18 U.S.C. § 115(a)(1)(B)(1994) (criminalizing any threats to federal officials with the intent to “impede, intimidate, or interfere with” the performance of the official’s duties); 18 U.S.C. § 1514(b)(1)(1994)(penalizing harassment of a victim or witness in a Federal criminal case); see also Black’s Law Dictionary (6th ed. 1991), supra note 32 (describing obscene or abusive language in a harassing context under the Federal Fair Debt Collection Practice Act, 15 U.S.C. § 1692(d)(2)).

[232] 18 U.S.C. § 1514.

[233] Id. at (c)(2).

[234] Id. at (a)(1).

[235] See John P. Ludington, Validity and Construction of “Terroristic Threat” Statutes, 15 A.L.R. 533 (1986 & Supp. 1998).

[236] MPC § 250.4 (defining Harassment); Black’s Law Dictionary, supra note 32.

[237] MPC § 251.4(1) (“Material is obscene if, considered as a whole, its predominate appeal is to prurient interest, that is, a shameful or morbid interest, in nudity, sex or excretion, and if in addition it goes substantively beyond customary limits of candor in describing or representing such matters” under an “ordinary adult standard.”). The offense, defined in (2), would clearly be met in the Baker case with the Doe story: “a person commits a misdemeanor if he knowingly or recklessly: ... (c) publishes, exhibits or otherwise makes available any obscene material.” Id.

[238] MPC § 211.3 (defining terrorist threats). Although this statutory provision of the MPC similarly includes a specific intent element, a person must “threaten[] to commit any crime of violence with purpose to terrorize another.” Id. The statutory language itself weighs toward the understanding that the threat must be communicated toward the prospective victim. However, it is not limited as such and therefore the mere communications between Baker and Gonda and the Doe story with its references to the victim’s “fear,” when combined, may nonetheless meet both the mens rea and actus reus elements of being a terrorist threat. Id.

[239] MPC § 251.1 (“A person commits a petty misdemeanor if he does any lewd act which he knows is likely to be observed by others who would be affronted or alarmed.”). Depending on the presumptions of privacy, which some have argued do not exist on publicly based accounts, the e-mails and clearly the story meet the observation requirement. However, debate may exist on whether Baker “actions” in sending the e-mails and posting the story meet the lewd act requirement. Surely had he acted on his desires he would be bound, but the “does” in the statute limits its probable application to Baker. Id.

[240] MPC § 212.3. Each of these statutes, see supra note 71 and infra note 245 and accompanying text (listing MPC sections of note), include actus reus requirements beyond merely sending an e-mail or series of e-mails or a posting of the Doe story. As such, none would apply.

[241] MPC § 212.1.

[242] MPC § 212.2.

[243] DOJ Cyberstalking Report, supra note 19; see also Cyberstalking Report, <http://www.usdoj.gov/ag/cyberstalkingreport.htm> (last visited November 11, 1999); DOJ, News Release, Attorney General Janet Reno Delivers Cyberstalking Report to the Vice-President, Sept. 16, 1999, 1999 WL 731899 (D.O.J.); Sunny Sea Gold, San Diego State U.: Gore speaks out against cyberstalking on San Diego State U. visit, U-Wire, Sept. 20, 1999; M2 Presswire, The White House: VP demonstrating federal and state laws to protect Americans against on-line stalking, Sept. 17, 1999.

[244] Id. E.O. 13,1333 issued on August 5, 1999 established a Working Group to analyze the existence of unlawful conduct on the Internet and to prepare and report recommendations based on its findings within 120 days. See also CCIPS Prosecuting Crimes Facilitated by Computers and the Internet <http://www.usdoj.gov/criminal/cybercrime/crimes.html> (visited Nov. 11, 1999).

[245] See Alvord, Cyberstalkers must beware of the e-law, USA Today, supra notes 1 and 71, at 22A (listing 16 states in 1999 have cyberstalking laws including California, Alaska, Arizona, Hawaii, Wyoming, Oklahoma, Illinois, Indiana, Michigan, Alabama, New York, Delaware, Connecticut, Massachusetts, Maine and New Hampshire)(citing DOJ Cyberstalking Report, supra note 19); see also Ala. Code §13A-11-8(b)(1)(a)(1994) (specifically including a reference to “electronic communication”); Idaho Code §18-6710(3)(Supp. 1994); N.H. Rev. Stat. Ann. §644:4(II)(Supp. 1994); N.Y. Penal Law §240.30 (McKinney Supp. 1995); R.I. Gen. Laws § 11-35-17 (1994); Mich. Comp. Laws § 750.411h(1)(e)(vi)(Supp. 1994) (including electronic communications in unconsenting contact); Alaska Stat. §11.41.270 (Supp. 1994); Okla. Stat. Tit. 21, § 1173 (Supp. 1995); Wyo. Stat § 6-2-506 (Supp. 1994).

[246] Greenberg, Threat, Harassment, and Hate On-Line: Recent Developments, supra note 11 (describing the Archambeau case); McGraw, Sexual Harassment in Cyberspace, supra note 30, at 510 (describing both the California and Michigan laws and the Archambeau case).

[247] Cal. Penal Code § 646.9 (Supp. 1994)(amended by Chapters 825 and 826); see also Lisa A. Karczewski, Stalking in Cyberspace: the Expansion of California’s Current Anti-Stalking Laws in the Age of the Internet, 30 McGeorge L. Rev. 517, 520 (1999)(detailing the amendments that allowed California to modify it’s anti-stalking statute to apply to electronic stalking and threats online).

[248] See Stearns, Stalking Stuffers, infra note 252, at 1068 (describing the California law requirement of a credible threat); see also People v. Tran, 54 Cal.Rptr.2d 650 (App. 6 Dist. 1996)(defining “harass” in stalking statute as conduct that "serves no legitimate purpose" and finding that it was not unconstitutionally vague as applied to defendant convicted of that crime for his acts of threatening victim with knife or hammer and chasing her husband and baby while wielding a long knife, despite defendant's claim that he may have believed his actions had legitimate purpose of persuading victim to leave her husband and pursue romantic relationship with him).

The element of a “credible threat” can also occur through a variety of mediums, including any “electronic communications device” is used, such as a computer. See Cal. Penal Code § 646.9(g) and (h) (Supp. 1994); see 1998 Cal. Legis. Serv. Ch. 826, sec. 1, at 3 (amending Cal. Penal Code §§ 422, 646.9 and 653m specifying various “electronic communication devices” include but are not limited to telephones, cellular phones, computers, video recorders, fax machines or pagers).

[249] Cal. Penal Code § 646.9(i) (Supp. 1994).

[250] Id.

[251] See People v. Falck, 60 Cal.Rptr.2d 624 (App. 1 Dist. 1997)(finding that the stalking statute does not require that defendant actually intend to carry out threat in order to make “credible threat;” it is enough that threat causes victim reasonably to fear for his or her safety or safety of his or her family, and that accused makes threat with intent to cause victim to feel that fear); People v. McClelland, 49 Cal. Rptr.2d 587 (App. 2 Dist. 1996)(stating that whether defendant had actual intent to carry out threats made to complainant was immaterial under stalking statute); People v. Carron, 44 Cal. Rptr.2d 328 (App. 2 Dist. 1995)(stating that the crime of stalking does not require an intent to kill or cause great bodily injury but only a specific intent to make a “credible threat” so as to make threatened person reasonably fear death or great bodily injury).

[252] See also Jay Krasovec, 31 Akron L. Rev. 101, 119 (describing current regulations governing the Internet at the state and attempted federal levels); Heather M. Stearns, Stalking Stuffers: A Revolutionary Law to Keep Predators Behind Bars, 35 Santa Clara L. Rev. 1027, 1037, 1048-53 (1995)(detailing and analyzing the nature of the stalker and the California law). Additionally, California law even provides for forfeiture of property for those who commit computer crimes. See Barton, Taking a Byte Out of Crime, supra note 30, at 486 (citing to the Cal. Penal Code § 502.01 (West Supp. 1994) and N.M. Stat. Ann. § 30-45-7 (1989)).

[253] DOJ Cyberstalking Report, supra note 19.

[254] See Eugene Volokh, Freedom of Speech in Cyberspace from the Listener’s Perspective, supra note 119, at 413 and 420 (discussing the Connecticut law and online harassment); Greenberg, Threats, Harassment, and Hate On-Line, supra note 11, at 690-91 (similarly discussing the Connecticut law).

[255] Conn. Gen. Stat. Ann. S. 53(a)-183 (West 1994), as amended by 1995 Conn. Legis. Serv. 95-143 (West 1995). However, a clear ban on this “likely” speech may pose its own constitutional dilemmas. See Cohen v. California, 403 U.S. 15 (1971)(holding that merely offensive speech is protected). However, the inclusion and reference between words such as “indecent” usually saves the statute from unconstitutionality because it is tied to the intent required, as opposed to merely being an issue of free speech. See State v. Hagen, 558 P.2d 750, 753 (Ariz. Ct. App. 1976)(same).

[256] Cf. State of Oregon v. Allen, 705 P.2d 740, 745 (Ore. 1985)(citing ORS 163.190(1) stating that, “A person commits the crime of menacing if by word or conduct he intentionally attempts to place another person in fear of imminent serious physical injury.”).

[257] See Barton, Taking a Byte Out of Crime, supra note 30, at 486 (suggesting that the Washington state law on harassment “would be one of the most difficult in the nation to extend to E-mail harassment” because it has no specific provision governing any electronic communication, including the telephone); Wash. Rev. Code § 9.61.230, § 9.61.240, § 9.61.250 and § 9A.46.060.

[258] See Executive Order 13,133, 64 FR 43895 (Aug. 5, 1999)(establishing a working group to address unlawful conduct that involves the use of the Internet).

[259] The relationship between threats and harassment in general and the high rate of domestic violence is disturbing.

Women who seek protection from this type of domestic abuse must confront a judicial system that has traditionally viewed violence against women as domestic disputes to be settled in the home. Studies reveal that approximately ninety percent of those who are murdered by their intimate partners called the police at least once, and that more that half called at least five times. Domestic violence against women is a common form of stalking, but state laws often address it only after the crime has escalated into a serious assault or homicide.

Stearns, Stalking Stuffers, supra note 252, at 1050 (citations omitted).

[260] See DOJ Cyberstalking Report, supra note 19 (comparing major similarities and differences of offline and online stalking, stating that one difference is that with “electronic communications technologies make it much easier for a cyberstalker to encourage third parties to harass and/or threaten a victim (e.g., impersonating the victim)...”). Id.

[261] 394 U.S. 505 (1969).

[262] See Robert K. Kelner, United States v. Jake Baker: Revisiting Threats and the First Amendment, 84 Va. L. Rev. 287 (1998)(describing an equally detailed analysis from a different viewpoint and conclusion of the First Amendment and true threat doctrine).

[263] Alkhabez, 104 F.3d 1492, 1493 (6^th Cir. 1996)(stating “we decline to address the First Amendment issues raised by the parties”).

[264] Baker, 890 F.Supp. 1375, 1375 (E.D. Mich. 1995)(holding that “statements in defendant’s private electronic mail, or e-mail, messages to unidentified recipient did not meet First Amendment “true threat” requirement” and the interplay of the “true threat” doctrine and the First Amendment); see F. Lawrence Street, Law of the Internet 454 (1997) (describing in a single paragraph the first-impression Baker case as not meeting the immediate threat required for a criminal conviction); see also Steven J. Heyman, Righting the Balance: An Inquiry into the Foundations and Limits of Freedom of Expression, 78 B.U. L. Rev. 1275 (1998) (applying Professor Heyman’s theory of contemporary First Amendment disputes to the Baker case).

[265] Id.

[266] Const. Amendment 1 (1791).

[267] See supra note 204 (noting some relevant free speech and First Amendment cases).

[268] R.A.V. v. City of St. Paul, 505 U.S. 377, 382 (1992).

[269] Cohen v. California, 403 U.S. 15, 19 (1971); see Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942)(not all speech enjoys the protection of the first amendment).

[270] In R.A.V. v. City of St. Paul, 505 U.S. at 388, the Court acknowledged three “‘reasons why threats of violence are outside the First Amendment:’ (1) ‘protecting individuals from the fear of violence,’ (2) protecting them against the ‘disruption that [such] fear engenders,” and (3) protecting them “from the possibility that the threatened violence will occur.’” Robert K. Kelner, United States v. Jake Baker: Revisiting Threats and the First Amendment, 84 Va. L. Rev. 287 (1998)(describing the true threat doctrine and Watts in greater detail).

[271] 394 U.S. 705, 707 (1969).

[272] Id. A statute that regulates the content of messages falls within this protected category unless it’s (1) obscenity, (2) fraudulent misrepresentation, (3) defamation, (4) advocacy of imminent lawless behavior or (5) fighting words. As a result, the speech is subject to strict scrutiny and must therefore (1) serve a compelling government objective and (2) is necessary, to survive overbreadth and vagueness doctrines. Watts reasons that to satisfy this scrutiny, political speech cannot be illegal unless it is a “true threat.” Id.

[273] Id. at 706.

[274] Id. at 707.

[275] Watts, 394 U.S. at 705 (1969).

[276] Id. at 705, 708.

[277] Id. at 712.

[278] The constitutionality of most threat and harassment laws is well known.

From 1791 to the present our society has permitted restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ R.A.V. [v. United States], 505 U.S. at 383 (citing Chaplinsky, [315 U.S.] at 572). The government has a legitimate interest in reducing the climate of violence to which true threats of injury contribute. Kelner, 534 F.2d at 1026. True threats of physical injury, like ‘fighting words,’ are viewed as outside first amendment protection, in part because they do not contribute to the exchange of ideas. See R.A.V. [v. United States], 505 U.S. at 383; United States v. Carrier, 672 F,2d 300, 306 (2d Cir. 1982).

United States v. Francis, 975 F.Supp. at 293 (S.D.N.Y. 1997).

[279] In Baker the court adopted the “unequivocal” and “imminent” standard necessary to be a “true threat.” See United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir. 1976) (stating that a “true threat” exists only if “on its face and in the circumstances in which it is made [are] so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution”).

[280] The argument exists that merely because the legislative history of 875 would include a broader class of statements and assertions that are prosecutable “threats,” it is nevertheless subject to the First Amendment requirements represented through the “true threat” doctrine.

[281] It was also during the same term that the Court handed down the landmark decision of Brandenburg v. Ohio, 395 U.S. 444 (1969)(per curiam), expanding the First Amendment protection for advocacy of illegal activity under the Ohio criminal syndicalism statute of a Ku Klux Klan leader.

[282] See supra note 50. Justice Stephens. Lecture – Question and Answer; Interview; October 14, 1999, University of Iowa. Thus, because there have been numerous decisions upholding a conviction where a person threatened another over the telephone based on the “reasonable fear” standard or reaction caused, these would necessarily require the same focus not on the speech, but on an objective effect that the speech causes. Id.

[283] 394 U.S. 505 (1969). Unfortunately just two years prior the Court reversed a case on other grounds that could have addressed the particular statute, 875(c), in Alderman v. United States, 394 U.S. 165 (1967). To date, the Court has not addressed either 875(c) or the true threat doctrine.

[284] Watts, 394 U.S. at 708. Indeed, when applied to modern threats and harassment at issue, even Justice White who wrote a separate dissent suggested when explaining Section 871 that where “direful intentions and desires” cause a “menace to the peace and safety of the country,” a defendant should be convicted under the statute. At least under this reasoning, Justice White would likely support 875(c) as a general intent crime and a broader interpretation of what constitutes a “true threat.” Id. Remember the discussion infra of the three classifications of threats, ranging from direct and explicit to conditional. One scholar who has researched this classification system in depth is Kent Greenawalt. See Kent Greenawalt, Speech, Crime, and the Uses of Language, New York: Oxford University Press, 1989 at Chapter 5 (Threats) and Chapter 14 (Conditional Threats and Offered Inducements); see also Kent Greenawalt, Free Speech Justifications, 89 Column. L. Rev. 119 (1989); Kent Greenawalt, Criminal Coercion and Freedom of Speech, 78 Nw. U. L. Rev. 1081 (1983); Kent Greenawalt, Free Speech in the United States and Canada, 55 WTR Law & Contemp. Probs. 5 (1992).

[285] See id.

[286] See Phillip Tortorich, E-Mail Stories Detailing Rape and Murder of Young Woman do Not Constitute a “True Threat,” 9 Loy. Consumer L. Rep. 227 (1997)(detailing the Baker case). However, the title to the article is deftly misleading about the case and the inclusion of the Doe and other stories – which prosecutors dropped from their case.

[287] Potter, Jake Baker Case, supra note 38, at 792-793 (citing United States v. Carrier, 672 F.2d 300, 306 (2nd Cir. 1982)).

[288] 534 F.2d 1020 (2d Cir. 1976).

[289] See id. at 797 (citing Kelner, 534 F.2d at 1021)

[290] See id. (citing Kelner, 534 F.2d at 1022 n.2, for the proposition of the prosecutors failure to locate Arafat); Watts, 394 U.S. at 708 (rationalizing the “true threat doctrine” in the manner which I have broken the reasons up into a six-factor analysis).

[291] Baker, 890 F.Supp. at 1384 (quoting Kelner, 534 F.2d, at 1027).

[292] 395 U.S. 444 (1969)(popularly known for its modern refinement of the clear and present danger test).

[293] See also Potter, supra note 38, at 792, 796-797 (discussing Watts and Kelner briefly).

[294] See Robert K. Kelner, United States v. Jake Baker, supra note 38, at 293-294 (citing Kelner, 534 F.2d at 1021). Other statements included that at a subsequent interview with a reporter, Kelner stated that “we have people who have been trained and who are out now and who intend to make sure that Arafat and his lieutenants do not leave this country alive…. Everything is planed in detail” and “It’s going to come off.” Id.

[295] See id. at 296 (stating that Kelner’s interpretation of the true threat doctrine hence required the test be “unequivocal, unconditional … and specific” so as to “weed to mere ‘political hyperbole’”). However, this ignores, as stated, the other five-factors that Watts examined.

[296] Kelner, 534 F.2d at 1029 (Mulligan, J., concurring).

[297] 90 F.3d 367 (9th Cir. 1996).

[298] See id. at 372. (finding that a student’s suit against her high school following her suspension violated her First Amendment rights because the statement did not constitute a true threat). However, the appellate court also recognized that the district court did not rely entirely on the federal constitution. Id. at 371 (stating that the district court used California law which gives to students the same rights while in school as while not in school, as opposed to federal constitutional law as required for a Section 1983 claim because there is a strong governmental interest in maintaining the safe environment in school and therefore would more easily constitute a true threat); see, e.g., Tinker v. Des Moines Indep. School Dist., 393 U.S. 503, 509 (1969)(holding that schools can punish student conduct that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” without violating the First Amendment); Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988)(“A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682 (1986)(“The constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.”).

[299] Lovell, 90 F.3d at 372.

[300] Id.

[301] 948 F.2d 935 (5th Cir. 1991).

[302] See id. at 939 (noting that “we do not face the difficulty encountered in Watts and Kelner of a somewhat ambiguous intent requirement in the statute”)(citing United States v. Velasquez, 772 F.2d 1348 (7th Cir. 1985); United States v. Lampley, 573 F.2d 783 (3d Cir. 1978)); see also Robert K. Kelner, supra note 38, at 304 (describing other specific intent cases supporting the same).

[303] It is perplexing because during the same time frame the Court addressed the fighting words doctrine several times. Yet, the Supreme Court has not substantively addressed the “true threat” doctrine since Watts. For this reason, it is arguable that the true threat standard was either a variation or tangent of the more prevalent fighting words doctrine, or is limited in its application to political speech, a category of speech that is independently protected by a heavy standard of scrutiny. See R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)(detailing the current state of free speech protections in the First Amendment); see also NAACP v. Claiborne Hardware, 458 U.S. 886, 927 (1982)(writing for the court Justice Stevens declined to rely on Watts and the true threat doctrine and instead opting for the “incitement” test of Brandenburg).

[304] Cf. Planned Parenthood v. American Coalition of Life Activities, 23 F.Supp.2d 1182, 1184-85 (D. Or. 1998) (finding that a “deadly dozen” poster, advocating readers to execute abortionists, and the Nuremberg web page was a true threat to bodily harm or kill one or more of the plaintiffs).

[305] See Robert D. Richards and Clay Calvert, The “True Threat” to Cyberspace: Shredding the First Amendment for Faceless Fears, 7 CommLaw Conspectus 291 n.11 (1999)(describing the Nuremberg case and the opposing position more in detail that a threat must be “imminent” and adopting the standard of Kelner). Indeed, Richards and Calvert suggest that the “true threats” analysis merely “builds on notions of ‘clear and present danger’ and Brandenburg.” Id. Thus, when cases like the Nuremberg files as they call them are analyzed under the six-factor reasoning that is used in Watts, that case may have been decided incorrectly as it appears they may have fallen into at least two or three discussed factors itself, without requiring an “imminent” analysis that Justice Brandeis wrote about. On the other hand, because protestors were holding signs, and the context of being immediately outside of an abortion facility when in the debate some had attempted physical violence, it is reasonable to also conclude that under an objective speaker/hearer analysis, there were at least some true threats justifying conviction. For this reason, the issue was nonetheless properly decided by a jury.

[306] See Kenneth R. Thomas, The Problem of the Persistent Suitor: Can anti-stalking laws distinguish between love and madness?, 41 Fed. B. News & J. 620, 622 (1994)(discussing constitutional concerns of then proposed anti-stalking legislation).

[307] Perhaps some of the 16 state cyberstalking laws are sufficient to bring and receive a conviction. Of these, California again has taken the lead in protecting its citizens. See Lisa A. Karczewski, Stalking in Cyberspace: the Expansion of California’s Current Anti-Stalking Laws in the Age of the Internet, 30 McGeorge L. Rev. 517 (1999)(discussing new law and its closing of a typical state loophole); Rebecca K. Lee, Romantic and Electronic Stalking in a College Context, 4 Wm. & Mary J. Women & L. 373 (1998)(examining stalking more broadly on the Internet and in colleges, including amazingly consistent statistical analysis between several top-tier schools on what cyberstalking “was when they saw it” in various scenarios).

[308] See Edward Wilding, Computer Evidence: A Forensic Investigations Handbook 193 (1997)(examining general forensic techniques in searching for computer evidence, include a chapter on investigating anonymous letters). The reader is alerted, however, that the texts by Wilding, Tapper, and Reed are primarily for the British legal community, and thusly, are only cited for portions of general analysis or in connection with U.S. law. Wilding in particular is useful in the “how to” of technically retrieving computer evidence, as it transgresses nation-states with its uniform code of ones (1) and zeros (0).

[309] But see Colin Tapper, Computer Law 173 (3rd ed. 1983). Under Federal Rules of Civil Procedure 34 a party may discover all documents related to his case. In the advisory notes, it is “quite clear that in the computer context this may be interpreted as provision in a usable form which may be a legible print-out but which may also be required to be machine readable.” Id. This reading of Fed. R. Civ. P. 34 suggests that a print-out may be sufficient representation, subject to other evidentiary rules.

[310] “Authenticating Electronic Mail Messages – Some Evidentiary Problems,” 52 MLR 649 (1989)(detailing some techniques such as digital signatures, other embedded features of the e-mail itself, or system logs to authenticate an e-mail); see generally Chris Reed, Computer Law 265-72 (2nd ed. 1993). Yet strict compliance with the rule and foundation requirements may result in few e-mails being admitted without devoting intensive resources. See United States v. Vela, 673 F.2d 86 (1982); United States v. Sanders, 749 F.2d 195 (1984) (refusing to exclude computer related evidence merely because corruption or alteration is theoretically undetectable). However, “the problem with electronically stored messages is that alteration is simple and leaves no traces. Unless these messages can be as well-authenticated as physically signed documents, their value as evidence of the communication is somewhat problematical.” Reed, Computer Law 265. In Monarch Federal Savings & Loan Ass’n v. Geiser, 383 A.2d 475 (N.J. 1977) the court thoroughly addressed at the time the sort of foundation testimony necessary to qualify the reception of computer print-outs as a business record. Thus, in the medium of business records, the emphasis has shifted to problems of discovery. Tapper, Computer Law 228 (3rd ed. 1983). However, unless an e-mail is made using a work computer or sent to a work computer, the business records exception may be insufficient to uniformly allow all such computer print-offs while discovery is often not at issue. See also Tapper, Computer Law 154-180 (noting early computer law and connection to business records exception under Federal Rules of Evidence 803(6) defining “data compilations”).

There are several ways that this threshold question of relevancy and later admissibility can be determined. First, the prosecution can admit evidence of direct authenticating eyewitnesses. This is the rare instance where the communication occurred in the presence of another person and who is reliable enough to withstand cross-examination by defense counsel. See Fed. R. Evid. (“FRE”) 901(b)(1)(authentication by testimony of witness with personal knowledge). Second, the prosecution may attempt to offer non-expert testimony about either the nature or characteristic of the communication. For instance, if the sender of an e-mail always signed off in a particular manner or used particular phrasing. See FRE 901(b)(2)(authenticating by non-expert opinion on handwriting). However, this may also be nothing more than circumstantial as it may be easy to acquire this information, too broad, or too easy to imposter. Even if unlikely, that is what defense counsel may argue. Third, the e-mail may contain information that only one person knew about.

Authenticating the document based on this distinctive characteristic is slightly different than the preceding example. See FRE 901(b)(4)(authentication by distinctive characteristics and the like). For instance, if the communication ultimately came from a password protected computer file or program, this is good circumstantial evidence of its authenticity. That said, it remains circumstantial as the court may not know who had access to that password, or if the password was added to a file after an unknown insertion. This may be one instance where the courts could create a presumption that would be hard beat that: if an electronic communication is somehow password protected, that sufficiently establishes the authenticity of origin, albeit not its accuracy. Finally, unlike the former cases where authentication will be up to the judge, expert testimony of the origin and accuracy of an e-mail is a question of fact for the fact finder. See FRE 702 (allowing testimony by experts on technical knowledge). In this case, as a FRE 104(b) question, the Judge will necessarily be obligated to give a limiting instruction in a jury trial. For instance:

IF you find that [Defendant’s name] sent the electronic communication, THEN you may compare the specimen with the disputed document for the purpose of authenticating the communication. In that case, you MAY consider the testimony of the [particular type of] expert. However, IF NOT, and you else find that if [Defendant’s name] did not send the electronic communication, THEN the specimen is not evidence in the case you MUST disregard it. In that case you must ignore the testimony of the [particular type of] expert.

In a case such as Jake Baker’s, the role of an expert may come into play in many instances. The expert may be the system administrator who has a log of all outgoing sent messages; the expert may be the information technology guru who can decrypt the header materials that precede every e-mail to locate its true point of origin; or the expert may be the psychologist who testifies that only a person of a particular mentality could or would even write something like the communication and that the defendant has this mentality.

In addition to problems of identity and authentication of an author, anonymous re-mailers have seen increased use that can make tracing the true identity of the sender virtually possible, but practically impossible. See Greenberg, Threats, Harassment, and Hate On-Line, supra note 11, at 678 (“Anonymous re-mailers are relay stations on the internet that cloak the identity of every user who sends a message through them. [Citing Michael D’Antonio, Our New Faceless Monsters, L.A. Times, Aug.27, 1995, at 24.] They are the computer equivalent of a Swiss bank account.”); see also <www.cs.berkeley.edu/raph/re-mailer-list.html> (providing a listing of re-mailers), September 26, 1999; <alt.privacy.anon-server> and <alt.anonymous> (giving general guidance in two newsgroups to new anonymous users), September 26, 1999. Indeed, the “internet – the same tool they use to investigate and spread terror – provides stalkers with almost impenetrable anonymity.” Alvord, Cyberstalkers must beware of the e-law, supra note 1. This is especially true considering the lack of training, knowledge, and desire of conventional police officers to investigate a “cyber-crime.” Thus, the web can be a powerful tool but also a powerful trap – it merely depends if you are the spider, the bug, or the human – and when you confront the web. The analogy to a spider’s web is apt – the strength of which depends on the number of fibers strung and the length of time that the spider(s) have had to weave them. Thus, if we do not fix the problem with the web early, perhaps later we may feel like being caught in the thick of the webs of the jungle spider. Simply, the thorough prosecutor should not underestimate the importance of authenticating both the message’s origin and that the defendant actually wrote it. This caption is especially true if the defendant denies sending the message or particular portions of it, but even if the defendant admits sending the e-mail, the prosecutor must still prove motivation and intent, based on the statute(s). See Greenberg, Threats, Harassment, and Hate On-Line, supra note 11, at 678 (1997)(same).

[311] A second rule that the prosecutor must negotiate is the best evidence rule. See Fed. R. Evid. 1002 (“[T]o prove the content of a writing, recording … the original writing, recording … is required.”). The ultimate question is how do you present the best evidence of an electronic communication? Is a printed version sufficient? As technology again progresses, any analysis will necessarily change; but for now, when evidence is being offered in print form, it should be done in a way as to preserve the intimacy that e-mail does create. Thus, I would actually print the entire computer screen or series of screens leading up to the e-mail – not just the text of the e-mail – to give a better impression of what a person, both subjectively and objectively, would feel opening an e-mail or seeing a series of e-mail subject lines containing harassing or threatening material.

[312] A third problem with admitting evidence of an electronic threat vis-à-vis e-mail is the hearsay rule. See Fed. R. Evid. 802 (“[H]earsay is not admissible” as defined in Fed. R. Evid. 801.”). Of course out of court statements by person’s not on the witness stand offered for their truth are hearsay. Although the traditional methods can be used to circumvent hearsay, such as claiming this is not an assertion and thus not a statement barred as hearsay, the rule does not change or require special analysis merely because it is in electronic form. The obvious exception that prosecutor’s will turn is the admission by a party opponent (APO) exception. See Fed. R. Evid. 801(d)(1)(2) (“[A] statement is not hearsay if— …(2) The statement is offered against a party and is (A) the party’s own statement.”). Assuming that the initial foundation and authenticating proof can be established, the APO exception should be sufficient to get past any electronic communication through the garbs of hearsay and into evidence for the jury to consider – but again, this is a step burden that tests the rule and its judicious application. If, of course, this does not work, the prosecutor should try to nonetheless admit the evidence on other grounds, hoping that the jury will at least get to see it, even if a limiting jury instruction is given.

Again beyond the scope of this paper, it is important for the administration of justice to get a handle on actual e-mail origins that can potentially deprive a person of his liberty. While circumstantially allowing an e-mail to be entered or creating a presumption in favor of one or another party, in instances where an e-mail is traced but only to a dead end, a cyber-cafe, or a fraudulently procured e-mail account, without other corroborating direct or circumstantial evidence linking the accused with the victim, a person should not be convicted. For instance, in Owens v. Morgan Stanley & Co., No. 96 Civ. 9747, 1997 WL 403454 (S.D.N.Y. July 17, 1997), the court dismissed an employee discrimination claim based on a racist e-mail stating that the e-mail message could not, by itself, support a claim of a hostile work environment. But see Gindin, Guide to E-mail and the Internet in the Workplace, supra note 126, at 35. The case was later settled in Feb. 1998. Id. at 36. This supports the argument that in relation to some statutes, more than the e-mail is necessary to present a cause of action. Whether the statutes discussed are of such a nature remains open.

[313] See generally, id., at 177-180 (discussing briefly best evidence, expert testimony and privilege). However, the analysis by Tapper on these points is dated with statements like “computer technology is still new enough, and complex enough, for courts to require expert testimony as to their mode of operation.” Id. at 178.

[314] Id., DOJ Cyberstalking Report, supra note 19, at 1 (Vice-President Al Gore).

[315] See S.761, H.R. 1869, Stalking Prevention and Victim Protection Act of 1999. Numerous articles and statements have since described the problem and the Congressional response. See David Beatty, Stalking and Violence Against Women, Congressional Testimony, House Judicial Committee, Subcommittee on Crime, Sept. 29, 1999 (1999 WL 27594940); Michael Posner and Molly M. Peterson, Internet Stalking, Gambling Targeted by House Panels, National Journal, Nov. 6, 1999 (1999 WL 28248170); Cassandra Burrell, Anti-Cyberstalking Laws Mulled, AP Online, Sept. 30, 1999 (1999 WL 28123210); Cassandra Burrell, Complaint Starts Nightmare Women asks House to Legislate against Cyberstalking, Sun-Sentinel, Ft. Lauderdale, Sept. 30, 1999 (1999 WL 20286534); New Media, Communications Daily, Oct. 14, 1999, v. 19, #198 (1999 WL 7580595); DOJ Cyberstalking Report, supra note 19 (containing numerous recommendations generally, for the legislature, for law enforcement officials, for the Internet and electronic communications industry, and for the victim service providers and advocates).

[316] See Greenberg, Threats, Harassment, and Hate On-Line, supra note 11, at 676 (discussing remedies for on-line harassment).

[317] One case of a disgruntled minority dental student at the University of Iowa College of Dentistry sent racist threats via e-mail at first, and later culminated in a package being delivered to the recipient containing spaghetti dyed red and a note, “Dead black man’s brains.” See generally, State of Iowa v. Tarsha Michelle Claiborne, Johnson County District Court, No. FECRO55082. Amended Trial Information. 3-6-2001 (original Trial Information filed 6-2-2000)(describing arrest of Claiborne on April 20, 2000); UI Press Release, “Arrest is made in College of Dentistry e-mail case,” Vice-President of University Relations Ann Rhodes, 4-20-2000.The Advocate (Baton Rouge, LA), “BR dental student charged in hate crime,” June 5, 2000, at 4-B;S; AP, “Dental student charged with racist e-mail threats,” Telegraph-Herald (Dubuque, IA), April 21, 2000, at 1; AP, “Lawyer wants bond for suspect reduced,” Telegraph-Herald (Dubuque, IA), April 29, 2000, at 13; Anna Conover, “U. Iowa dental student to remain in custody after racist e-mails,” Iowa State Daily, April 25, 2000 (discussing bond hearing); Chao Xiong, “No motive known for series of racist threats at U. Iowa dental school,” The Daily Iowan, April 24, 2000; Colleen Krantz, “Mom pleads for U of I suspect,” The Des Moines Register, April 22, 2000, at 1; Des Moines Register, “Dateline Iowa: U of I student faces marijuana charge,” June 9, 2000, at Metro 5; Des Moines Register, “Dateline Iowa: Responsibility is key in ex-student’s defense,” July 12, 2000, at Metro 5; Des Moines Register, “Dateline Iowa: Trial is delayed for former student,” October 11, 2000, at Metro 4.; Des Moines Register, “Dateline Iowa: Responsibility is key in ex-student’s defense,” July 12, 2000, at Metro 5; Des Moines Register, “Karen Duncan’s tragedy.” July 16, 2000, at 14 (discussing how depression may be a factor in the Claiborne case); Disa Lubker, “Woman Accused of e-mailing threats to U. Iowa to enter not guilty plea,” The Daily Iowan, June 15, 2000; Disa Lubker, “Attorney: U. Iowa dental student to use diminished-responsibility defense,” The Daily Iowan, July 12, 2000; Ryan Foley, “U. Iowa officials on lookout for more racist e-mails,” The Daily Iowan, April 3, 2000; Ryan Foley, “1,000 ‘Walk the Walk’ against racism at U. Iowa,” The Daily Iowan, April 12, 2000; Ryan Foley, “U. Iowa dental school a bit wary – threats expected Tuesday,” The Daily Iowan, April 11, 2000 (discussing the possible Tuesday-Thursday pattern); Ryan Foley, “Group claims it set U. Iowa dental lab on fire,” The Daily Iowan, April 17, 2000; Gil Levy & Zack Kucharski, “Threat locks down U. Iowa dental school, The Daily Iowan, April 19, 2000; Glen Leyden, “Some community members reach out to help arrested U. Iowa dental student,” The Daily Iowan, April 26, 2000; Kellie Doyle, “Claiborne faces 10^th charge,” The Daily Iowan, March 7, 2001; Kirsten Veng-Pedersen, “Cyber-crime forces U. Iowa police to get wired,” The Daily Iowan, July 26, 2000; Michael Chapman, “Wary, U. Iowa dental school reopens after bomb threat,” The Daily Iowan, April 20, 2000; New York Times, News Brief, April 21, 2000 (“According to court records, the second-year dental student confessed when faced with allegations.”); Scott W. Wright. “Campus Cops Try To Fill Role As Cyber Superheroes; computer crime.” Black Issues in Higher Education, August 17, 2000, at 64; Shirley Ragsdale, “Bizarre hate crime begets a weirder debate over bias,” Gannett News Service, May 11, 2000, at ARC; Sky Eilers and Zack Kucharski, “U. Iowa dental student jailed for threats,” The Daily Iowan, April 24, 2000.