On-Line Threats and the Law:
a
Case Study of Threats in Higher Education
By Daniel G. Pinegar
Table of Contents:
Page
I. Introduction 1
II. The Dental School Case 7
A. The Threats
B. The Sting
C. The Arrest
D. Post-Arrest
III. The Jake Baker Case 16
A. The Baker Threats
B. The Federal Law
C. Federal Law as applied in the Baker case
IV. Conclusion 25
* * * * *
I.
Introduction:
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In the year 2000 admission cycle at
college’s across the country, the number one essay topic was far and away the
impact that school shootings like in Columbine, Colorado had on the individual.[1] Maybe the individual was a student at such a
school; maybe they knew a student who was; or maybe they just watched the news
reports on television with the rest of the nation. While incidents of carrying through on any act of violence are
obviously pursued to the greatest extent of the law, threats of violence are
not always pursued as aggressively, and yet today they are taken more seriously
than ever before. The question that
remains is what happens when a threat of violence or illegal activity is taken
into the on-line world and what is the impact that on-line threats are having
on our educational institutions. This paper examines two such cases and their impact
on a community through the eyes of journalists.
1975: “I am going to blow up the school.” Said a mysterious man on the end of a telephone call to the local principal’s office secretary. Class bell rings. End of fourth period. Homeroom time. The secretary read off the normal announcements on the speakerphone. Then the next person came on to read off the next day’s lunch menu. No one ever listened. But then the Assistant Principal said he had a special announcement and the teacher shushed us all. “Due to a needed teacher day, school will let out at 2:00 PM for in-service. If you need to call to arrange a ride home early please stop by the office.” It was odd since in-service days were usually planned far in advance, but we didn’t care. School was out!
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But then I heard from Jimmy, a
another kid who worked in the principal’s office running errands and
messages. He said that a bomb threat
was made and the school was being dismissed to have the local police search the
school. After that, the rumors flew
around the school faster than Buzz Light-year – as it turned out, Ms. Paul’s
Science class was supposed to take an exam in
sixth period. The bomb threat prank worked. Over time the school became used to the threats which gave birth to complacency, until one day when an explosion ripped through the school cafeteria. 3 dead, 24 injured. School was never the same.
Of course, the advent of various technologies and electronic communication have only expanded the scope of harassment and threats. Indeed, electronic harassment, threats, and cyberstalking may well be “the crime of the 21st century.”[2] 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. 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]
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.[4] Indeed, “people park their inhibitions when they get online.”[5] At the same time, although it may be harder to trace a sender or an e-mail, the mere medium used does not effect the result achieved from the harassing or threatening electronic communication.[6] Despite any Constitutional or First Amendment protections,[7] with just a simple click of a button,[8] an e-mail can become a surgical attack on an individual, class of persons, or location. The damage will already be done and increased anecdotal reporting by the media confirm this.
A student can leave a bomb threat about his school in an Internet chat room,[9] or, after traditional violence, a copy-cat can send an instant message implying continued violence.[10] A racist student can send death threats through e-mails.[11] While other students may write obscene rape fantasies and post them on bulletin boards,[12] threatening to act on them,[13] or encouraging others to act on them.[14] Simply, any threat or harassment scenario can be duplicated or intensified in the electronic sphere. Additionally, conventional stalking is also being transformed in the information age. In one survey of college women[15] who reported they were stalked in an academic year, 24.7 percent were stalked electronically by e-mail.[16] 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.”[17]
Of course, although beyond the scope of this paper, online threats or harassment are not limited to educational institutions or students. An employee can harass his employer.[18] An estranged lover[19] or fan of a celebrity can virtually maul another with cyberstalking.[20] One’s family can be threatened.[21] Or a person can threaten harm to a building or roadway.[22]
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[23] allows these suspect behaviors to only increase, causing greater alarm, fear, and manipulation.[24] Likewise, because of a more wary social climate and the easily recorded nature of an electronic transmission, 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” [25] or within their jurisdiction.[26] As a result, the concern with this “crime”[27] and the challenges it presents[28] will only continue to grow.[29]
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 various criminal statutes available to combat the problems of electronic harassment, threats and cyberstalking nor adequately segregated these legal problems. To aid in this discussion, allegedly illegal actions, this paper will examine two cases where online threats in higher education have had a terrifying impact on college communities.
II. The Dental School Case:[31]
For a three-week period in March and April of 2000, the University of Iowa was terrorized by an anonymous e-mailer making a pattern of threats against minority students. Although a single student was eventually arrested for the events, it took time and innovation since the e-mailer used no less than three fictious accounts and names.
A. The Threats:
On Tuesday, March 28, 2000 the first email was sent out. The Dean of the College of Dentistry, David Johnsen, and three faculty members received the email. The e-mail demanded that the school get rid of its minority students and threatened bomb violence, as possible forms of action if it did not within three days if nothing happened.[32] “The e-mail said the dental school was a random place to start and that the group will try to rid all minorities – with blacks going first – from the UI.”[33] The e-mail was sent from the e-mail address “minoirtyrid@excite.com” [sic]. The Excite.com address was registered to an Iowa City male.
On Thursday, March 30, 2000 the second email was sent from “minoritygetout@excite.com.” This time eight College of Dentistry students, all minorities, received the email. It continued threats of violence and threatened the use of gun violence against students, and that the students and their families should fear for their lives. It also said that the person or people sending the e-mail would be responsible for any vandalism to the cars of the minority students and advised them to stay home from school.[34]
“According to the Excite.com Webpage, neither of the two accounts were active as of Sunday afternoon. The [alleged] groups sending the e-mail goes by four names – Minorityout, Minoritygetout, Minorityrid Committee and the Committee of Minority Flight – but Rhodes said she thought one person was probably responsible for the threats. Rhodes said the e-mails were consistent in nature and did not appear to be the work of a national group because they were unorganized and poorly written. Investigators determined that the first e-mail posed no ‘credible’ threats to the students, but the second seemed to be more directly aimed, Rhodes said.”[35]
On Tuesday, April 4, 2000, Kurt Holmes, an African-American Dental School student discovered outside of his apartment at 2425 Bartelt Road, Apt. #2B in Iowa City a package. In the package was a quantity of noodles dyed red along with a note which read “Dead Black Man’s Brains.”
On Thursday, April 6, 2000, a coat caught fire in the Dental School. The fire broke out just before 10 AM, when a coat apparently was ignited by a Bunsen burner, said Steve Parrott, the director of university relations. The fire was put out by a dental student who used a fire extinguisher, and nobody was injury, Parrott said. The Iowa City Fire Department responded to an alarm, but the fire had already been put out by the time firefighters got there, he said.”[36] According to one fourth-year dental student, “a lab coat catching on fire in the dental lab is not uncommon – in fact, it happens at least once a year. What’s unusual, she said, is that nobody was wearing the coat.”[37] Authorities quickly discovered just how unusual the incident was when a third email later that day claimed responsibility for setting the coat ablaze. It asked, “Are you going to take us seriously now?”[38]
After two weeks of this Tuesday-Thursday pattern of threats,[39] an impromptu rally was held on the University of Iowa campus, “Walk the Walk.” Approximately 1,000 students marched beside President Mary Sue Coleman, Mayor Ernie Lehman made the 15-minute hike from the Pentacrest to the Dental School for a rally at approximately 11:45 A.M. “The crowd held several signs that denounced racism and shouted chants such as, ‘Hey hey, ho ho, racism has got to go,’ and ‘if you talk the talk, walk the walk.’”[40]
A fourth and final email was sent on Tuesday, April 18, 2000. The e-mail originated from the address “BOMBSQUAD52244@yahoo.com” and was signed “mejones.”[41] “At approximately 1:20 PM, an undisclosed number of students and administrators within the dental school, none of whom were minorities, received the message, said Ann Rhodes, the UI vice president for university relations.”[42] This time the email was more explicit and included a bomb threat against the school. The e-mail reportedly stated, “We want you to come out and protest, but everyday you should say goodbye to your family and loved ones. Let the war begin.” The threat was issued with a window of Wednesday, April 19, 2000 through Friday, April 21, 2000.[43] “The account registered for the address on the Yahoo! Web site – bombsquad52244 – identifies the user only as male and was last updated on Tuesday.”[44]
As a result of this e-mail, the Dental School closed its doors Tuesday evening and canceled classes for Wednesday while the building was searched for a possible bomb until 6:30 A.M. Thursday. “This was the first building closing due to a bomb threat, said Steve Parrott, the UI director of university relations [and] this was the UI’s first closure of a building in more than 30 years, during the anti-Vietnam War demonstrations.”[45] “Approximately 30 members of bomb squads from Johnson and Linn counties, Marion Township the state Fire Marshal’s Office and UI public safety conducted an ‘extreme and thorough’ investigation of every locker and office in the building.”[46] All locks to the building were also changed, and administrators had to determine who got new keys.[47] Reopening only the third-level entry door, with increased security precautions and two security guards, students were searched upon entering. Officials opted not to use a metal detector.[48]
B. The Sting:
“The threats received a tremendous amount of publicity in the local media, and university officials were under added pressure to find the culprit.” Charles D. Green, Director of Public Safety for the 28,000 student university, said “his officers used a combination of old-fashioned police investigative techniques and 21st century cyber sleuthing to nab Claiborne.”[49]
“Although cyber-crime is new, basic tracking techniques used to combat it haven’t changed since the Internet’s inception, said Doug Jones, a UI Associate professor of computer science. The first step is to examine the message’s header in its entirety, he said. The 15-20 lines of delivery information in the header is the most important because this is where the e-mail’s forwarding agents are identified, Jones said.”[50]
“Next, by examining the message’s path, investigators can identify the Internet service provider. Authorities then determine information about the sender by working with the service provider, which is usually very cooperative, Jones said. ‘They don’t want to be seen as a shelter for abusive use,’ he said. Online e-mail services, such as Excite.com in the Claiborne case, are also involved in the process. Once the companies have been altered, they help track the alleged Internet criminal when he or she logs on.”[51]
“Authorities were able to determine Claiborne’s identity by working with Excite.com to pinpoint the origin of the e-mails sent from the addresses ‘minoirtyrid@excite.com’ and ‘minoritygetout@excite.com.’ Once the e-mail activity was tracked back to the computers in the UI’s Pathology Learning Center Instructional Technology Center, [approximately three blocks from the Dental Sciences Building], authorities placed the site under surveillance.”[52] “Claiborne was seen on videotape leaving the ITC, Rhodes said. A member of the dental faculty identified Claiborne on the surveillance video Wednesday, she said.”[53]
Map of Dental
School & Pathology ITC HERE
According to Sgt. Duane Papke of UI Public Safety, with
the rise of internet crime authorities have been forced to go about
investigations in a different way.
“It’s a completely new ball game. Its definitely something that we will
be dealing with more on a daily basis in the future, so we need to be
prepared.”[54]
C. The Arrest:[55]
Three weeks after the first email was received, the suspect was caught. Police reports indicate that Tarsha Michelle Claiborne was arrested at her apartment, 2427 Bartelt Road, Apt. 2A, at 12:20 A.M. on Thursday, April 20, 2000. Claiborne, who is a native of Baton Rouge, La., has a Bachelor of Science degree from Xavier University of Louisiana in 1998. Apparently a talented piano and violin player, “U of I officials said there was no evidence that she was having trouble academically or had been under any undue stress since coming to Iowa City.”[56] As a second year dental student, she is one just of 13 black students in the entire dental school. She was charged with “six counts of third-degree harassment, criminal trespass elevated to hate-crime status and threats in violation of individual rights.”[57] “While Claiborne has allegedly admitted to sending the e-mails, the investigation continue[d].”[58]
Armed with a search warrant, “more than 40 items relevant as evidence in the criminal prosecution were recovered during the search of Claiborne’s car and apartment, including lists of the names of dental school victims and others, according to court documents. Officials also confiscated issues of the Daily Iowan found in her car and apartment that covered the recent threats. One of the issues recovered, the Nov. 29, [1999] issue, includes an article about the low number of hate crimes in Iowa.”[59] Police Sgt. Bill Campbell also said they “found ramen noodles, red dye, [and] paper matching the handwritten note” that said ‘Dead Black Man’s Brains’ which was left on the doorstep of a third-year minority dental student, whom Claiborne knew and who lived in an adjacent building.[60] “Authorities also seized computer equipment and information related to the e-mail victims from the apartment, Campbell said. There were no weapons or explosives found inside Claiborne’s apartment, he said.”[61]
Claiborne was initially only charged with two counts in connection with the threats.[62] The first charge was specifically related to the last email which shut down the school because it contained a bomb threat. It read:
Count I: Threats – Violation of Individual Rights – “The said Tarsha Michelle Claiborne on or about the 18th day of April, A.D., 2000, in the County of Johnson, State of Iowa, did threaten to place, or attempt to place, any incendiary or explosive device or material, or any destructive substance or device in any place where it will endanger persons or property, committed against a person because of the person’s race, color, ancestry, national origin or because of the person's association with other persons of a certain race, color, ancestry or national origin, to-wit: the Defendant sent a bomb threat by electronic mail to facility [sic], staff and students of the University of Iowa College of Dentistry which e-mail continued earlier e-mails, specifically targeting minority students as targets of hate and injury, in violation of Section(s) 712.8, 719.9 and 729A.2 of the Iowa Code.”
The second charge dealt with the physical action that Claiborne allegedly took by placing a package of noodles and the “Dead Black Man’s Brains” note outside the apartment of a fellow minority student. It read:
Count II: Trespass – Violation of Individual Rights – “The said Tarsha Michelle Claiborne on or about the 4th day of April, A.D., 2000, in the County of Johnson, State of Iowa, did enter upon property without the express permission of the owner, lessee or person in lawful possession, with the intent to commit a public offense, harass, or place thereon or therein anything animate or inanimate, or for the purpose, or with the effect of unduly interfering with, the lawful use of the property by others, committed against a person because of the person’s race, color, ancestry or national origin, to-wit: the Defendant went on the property at 2425 Bartelt Road in Iowa City, Iowa, and placed a quantity of noodles dyed red and a note stating “Dead Black Man’s Brains,” which address was occupied by an African-American male, in violation of Section(s) 716.(1) and/or 716.8(c) and 729A.2 of Iowa Code.”[63]
A third count was added for Claiborne’s allegedly setting a lab coat on fire in the Dental School. It read:
Count III: Reckless Use of Fire – “The said Tarsha Michelle Claiborne on or about the 18th day of April, A.D., 2000, in the County of Johnson, State of Iowa, did use fire or any incendiary material so as to recklessly endanger the property of [sic] safety of another, to-wit: the Defendant did place a coat on or in immediately [sic] proximity to a Bunson [sic] burner in Room N208 of the University of Iowa College of Dentistry, in violation of Section(s) 712.5 of Iowa Code.” [64]
Claiborne was also charged later with Possession of a Schedule I Controlled Substance after police found a small amount of marijuana in her apartment when it was searched.[65]
D. Post-Arrest:
· Ann Rhodes Comment:
“There is a saying in journalism circles that good reporters ‘Never Assume.’ … The University of Iowa was rocked when the suspect turned out to be Tarsha Claiborne. … But then the improbable became the incredible. And the result has been that a bizarre hate crime case has been eclipsed by an example of more subtle bias.”[66]
At a press conference held on April 20, 2000 to discuss the arrest, a reporter asked Ann Rhodes, Vice President of University Relations, if she was surprised the person arrested was a black female dental student. Rhodes replied, “I figured it was going to be a white guy between 25 and 55 because they’re the root of most evil.” This comment quickly became a story in itself. “Several hours after Rhodes’ comment, the Office of University Relations issued an official apology from Rhodes for the statement she called a ‘poor attempt at humor.’”
In response to the comment, “more than 300 negative phone calls and e-mails [were] logged with the school following Rhodes’ comments.”[67] In addition to negative publicity,[68] the California-based European American Issues Forum President Louis Calabro filed a complaint with the Department of Education Office of Civil Rights against the UI for Rhodes’ comment on April 27, 2000.[69] That complaint was dismissed on June 9, 2000.[70] Nonetheless, Rhodes stepped down from her position effective July 1, 2000.[71]
Meanwhile, President Mary Sue Coleman had issued her own statement directed to the entire University of Iowa Community in an email on April 21, 2000. In it she stated that:
Yesterday’s arrest in connection with threats against minority students in the College of Dentistry has brought a measure of relief, tinged with sadness and confusion. One thing is clear: we still have much work to do to rebuild trust and regain our sense of common purpose. I want to assure all persons on campus that you are valued members or our community, both individually and collectively. Each of you has earned your place here on the basis of your individual merits. No person’s credibility, now or in the future, should be compromised by this unfortunate incident. Instead, let us take it as a wake-up call that reminds us that we should judge each other as individuals, by the content of our character. And now I hope we can move forward, in accordance with our core values, to ‘encounter each other in a spirit of cooperation, openness, and mutual respect, to form a richly diverse and intellectually stimulating community.’
(Emphasis added). The same anger that was raised against Rhodes’ comment could have easily been asserted against President Coleman herself. The question never answered is why the arrest is “tinged with sadness and confusion” if the race of the pre-arrest alleged perpetrator wasn’t a factor?
· Psychiatric Assessment and Bail:
A personal signature bond was set at $53,500 for Claiborne[72] and although defense attorneys asked the judge to reduce it, their motion was denied.[73] With court approval, Claiborne was evaluated in the Johnson County Jail by Dr. E. Enekwechi of the University Counseling Service (UCS) on April 28, 2000. Dr. Enekwechi diagnosed Claiborne with Major Depressive Disorder (severe) “causing disabling physical and psychological symptoms.”[74] Claiborne was transferred to the University of Iowa Hospitals and Clinics (UIHC) for psychiatric evaluation on May 2, 2000.[75] Claiborne finally posted bond on May 17, 2000 and was released from the UIHC to return to Baton Rouge, Louisiana to live with her mother, Lillie Addison Claiborne, pending trial. The court ordered Claiborne “not to initiate personal contact in any form with the University of Iowa College of Dentistry or its faculty, staff and students.”[76]
· Not Guilty Plea:
On June 15, 2000 defense attorneys for Claiborne filed a written plea of not guilty in lieu of a court appearance while Claiborne was staying in her hometown of Baton Rouge, Louisiana.[77]
· Diminished Capacity defense:
Many people wondered what excuse the accused might have for making the various threats, but according to Andrea Herbster, a UI law student, “I would certainly not excuse her actions because of the stress of graduate school. These actions go way beyond stress but may have exacerbated her feelings and made her more willing to act out her emotions.”[78] Instead, Claiborne’s attorneys felt that the stress of her father’s death due to cancer a year earlier could be the source of a possible defense.[79]
On July 10, 2000, Claiborne’s attorneys announced their defense. “Claiborne’s attorneys were required to file a notice [under Iowa Rule of Criminal Procedure 10(11)(b)(1)] saying they would use the diminished-responsibility defense before her trials, but Leon Spies declined to comment on why the defense was chosen or how the attorneys will use it.”[80] “Diminished responsibility differs from a claim of insanity in that it cannot be used as an entire criminal defense, Spies says. It can affect only certain elements of the defense, he says. Diminished responsibility can also result in a conviction of a crime or degree of crime less serious than originally charged.”[81]
“Insanity defense claims the defendant was incapable of distinguishing right from wrong because of a mental illness of some kind, Spies said. Claiborne’s defense of diminished-responsibility claims that she had a limited capacity to think about the nature of her actions, Spies said.”[82] “He declined to comment on other defenses considered and Claiborne’s involvement in the decision-making process.”[83]
“A diminished-responsibility defense is not unusual, but the opportunity to use it does not come up very often, Iowa City attorney Randy Larson said. It can help convince the jury that the defendant was not completely aware of the nature of her or his actions, Larson said. At the UIHC, Claiborne was diagnosed with depression. Johnson County Attorney J. Patrick White declined to comment on how the new defense will affect the prosecution’s approach to the case.”[84] However, as determined from the Judge’s canceling of the scheduled March 5, 2001 trial, a plea agreement was apparently agreed upon.[85]
· Drug Charges & Plea:
Upon searching Claiborne’s apartment police discovered an undisclosed amount of marijuana. Claiborne returned to Iowa to face the separate drug charges stemming from her arrest and pleaded guilty in November, 2000 to possession of a schedule I controlled substance. She faces a sentencing/plea hearing on May 3, 2001.
E. Sentencing:
Currently Claiborne is set to enter a guilty plea on the remaining charges and be sentenced on May 3, 2001. Claiborne could face up to 10 years in prison and a fine of $10,000 for Count I, a Class C felony;[86] up to 1 year in prison and a fine of $1,500 for Count II, a Serious Misdemeanor;[87] and up to 30 days in jail and a fine of $500 for Count III, which included 6 emails, a Simple Misdemeanor.[88] The Judge could order that her sentence, potentially totaling 11 years, 6 months and a fine of $14,500 be carried out consecutively (meaning 11 years, 6 months) or concurrently (meaning at most 10 years). Parole may or may not be available.
III. The Jake Baker
Case: [89]
While the Claiborne case presented an example of direct threats carried online and the application of one’ state’s laws to this problem, the only real issue was when would the perpetrator be caught and how much time would they serve. However, the much more difficult case is the indirect threat carried online and its federal law counterparts as the Baker case illustrates. Simply, the results are not always expected.
A.
The Baker Threats:
The Baker case began in 1995 when a student at the University of Michigan, Jake Baker, wrote several “fictional stories”[90] and posted them on a Michigan University Usenet[91] electronic bulletin board. Two people discovered one such story and reported its existence to the University of Michigan. In one snuff[92] story entitled, “Doe,”[93] Baker wrote in lurid detail about the sadistic abduction, bondage, mutilation, torture, sodomy, rape, and murder of a victim.[94] “For the denouement, they pour gasoline on her and then say good-bye with a lit match.”[95] The “fictional victim” whom the story was named was a female classmate.
After authorities discovered that the author of Doe and the victim were both University students, they visited Baker’s dormitory room. Amazingly 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).[96] 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”[97] between Baker and a party named in the e-mails, Arthur Gonda.[98] Thus, although academic analysis can include these stories, the legal analysis of the case does not.[99]
Of course, before answering whether Jake's speech was protected by the First Amendment,[100] 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.”[101]
[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.”[102]
In another series, the two discussed a method to kidnap a girl because Baker’s dormitory room was located across from the girl’s bathroom;[103] in yet another Gonda relayed information about the type of girl he'd like to “do” from the Teale-Homolke serial killings in Canada.[104]
B.
The Federal Law:
So, were Baker’s electronic communications protected speech or were they the exact type of electronic threat that will be the crime of the 21st century?[105] 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, mens rea, and the constitutional requirement of a true threat – and the courts have at times been unclear as to what satisfies much of that burden.
Today, the standard test to prosecute under 875(c) requires three elements as laid out by the court in United States v. DeAndino:[106] “(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.”[107] Although this section is contained in Chapter 41 – Extortion and Threats, and one of Baker’s e-mails alluded to abduction, an intent to kidnap or extort is not necessary to prosecute interstate threats. [108] While at one time the law was applied almost exclusively to instances of extortion stemming from its enactment in 1932, [109] 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. Nevertheless, the simplicity of the statute is deceptive. And perhaps most importantly, the Baker case presents a stark contrast of how easy it is for courts to distinguish direct threats from indirect threats by whom the threat was directed, despite any common sense understanding that either were unambiguous threats.
· The
Actus Reus:
To meet the first prong of 875(c), the actus reus, one need only send the communicated intent vis-à-vis “interstate commerce.”[110] Recently, United States v. Kammersell[111] found that e-mail and electronic communications can be regulated under the interstate commerce clause and that an alleged threatening e-mail sent via the internet satisfied the actus reus requirement of 875(c).[112]
· The
“Threat:”
Second, although
the statutory requirement and Constitutional requirement for 875(c) have not
always been distinguished, however, in light of both the majority and
dissenting analyses in Alkhabez, it is clear that the scope of the
statutory term “threat” is limited only to that defined by the
Constitution.
Thus, so long as there is a credible threat from an objective standard – determined by the jury – there is a statutory “threat.” 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.[113] As a result, the analytical focus should rest on whether the mens rea of 875(c) and constitutional safeguards are met. As applied, authorities in the Claiborne case clearly determined that although the first e-mail was not a sufficient “credible threat,” and perhaps could be interpreted to be merely a political statement, after the second email was sent directly to minorities indicating violence the “credible” or “true threat” standard was met.
· The Constitutional Element of 875(c) – the True
Threat Doctrine: [114]
Of course one must
already have in mind the basic First Amendment structure that prohibits
Congress from making any law that, “abridges the freedom of speech.”[115]
Although, the First Amendment prevents the government
from proscribing speech,[116]
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.”[117]
In our case, it is clear that the Constitution prohibits speech when it is
threatening and creates a fear of violence.[118] 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,[119] 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.”[120] The standard that developed is the “true threat” doctrine.
The facts of Watts centered around 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.”[121] In response to Watts’ statements, the “crowd laughed.”[122] Nevertheless, Watts was arrested and charged under Section 871(a) – threatening the president.[123] 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.’”[124] Additionally, Justice Fortas and Harlan both dissented in Watts because the Court made this decision without a hearing.[125]
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 or direct threats and forms of harassment would be constitutionally legally protected speech – contrary to the historical codification of threat and harassment laws.[126]
However, there are several reasons why the non-“true threat” statements should not be interpreted as a “doctrine” outside of the unique factual situation presented in Watts.[127] 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. [128]
There are no less than six factors that the Watts Court examined to distinguish constitutionally protected speech from unprotected speech. In my opinion, the factors are the test of the ‘true threat doctrine.’ They 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].”[129] Furthermore, there is no indication that this is an “and” test, requiring all six factors.[130]
When the Watts’ 6-part test for a “true threat” is applied in the Baker case,[131] 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.[132]
Some courts have even gone so far as to agree with the stricter “unequivocal” standard enunciated in United States v. Kelner.[133] In Lovell v. Poway Unified School District[134] 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 this statement was protected by the First Amendment.[135] 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.”[136] Thus, this statement fell under the Kelner standard as being, “unequivocal and specific enough to convey a true threat of physical violence.”[137] 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.
Finally, a second
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.[138] 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.[139] Thus, without 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).
· The Mens Rea:
Third, the mens rea of 875(c) appears to be a general intent crime, although there is a split in the circuits on this point. Here, the statutory language of 875(c) does not contain any reference to a specific intent to threaten, and the majority of circuits that have addressed the issue,[140] including the First,[141] Second,[142] Third,[143] Fourth,[144] Fifth,[145] Sixth, [146] and Tenth Circuits[147] have forcefully agreed and determined that 875(c) is a general intent crime. Generally, “when a statute does not contain any reference to intent, general intent is implied.”[148] This means that the intent element only applies to sending the communication, not the nature of the communication and the threat element.[149]
The Whiffen Court said that the court in United States v. Fulmer [150] “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.”[151] This objective standard solves the problems worried by the minority circuits,[152] discussed below, even though it does import a “subjective, hearer-based qualification into the objective, speaker-based standard.”[153] 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.[154] Nonetheless, even the Fulmer Court concluded that “whether a given statement constitutes a threat is an issue of fact for the trial jury.”[155] Thus, one can easily see how the answer to the question of who receives whatever is perceived by others to be threatening may perhaps be determinative of the federal intent element of Section 875(c). Whereas the racist threatening emails in Claiborne were sent to minorities, in Baker the emails were in fact sent to the equivalent to a co-conspirator.
C. Federal Law as applied in the Baker
case:
The relevant text
of Section 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.”[156] (Emphasis added). 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.[157]
After Baker was taken to court, the U.S. District Court for the Eastern District of Michigan dismissed the indictment.[158] On appeal and with the efforts of the ACLU,[159] the Sixth Circuit affirmed.[160] Despite numerous social or political reasons why people wanted Baker to be punished for his electronic speech, the Sixth Circuit held that the series of e-mails containing his personal interest in causing violence to another person was not a “communication containing a threat”[161] because the intended recipient of the e-mail would not personally be threatened.
In light of the court’s interpretation of the statute and the constitutional requirements of the true threat doctrine,[162] 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.[163]
In the superseding indictment, the Grand Jury returned five counts that this series of e-mails[164] 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).[165] In a thorough opinion the lower court affirmed that this was a general intent crime[166] but nonetheless found that, “intent must be proved by, ‘objectively looking at the defendant's behavior in the totality of the circumstances.’”[167] The court then concluded that it must interpret the e-mails “in the light of foreseeable recipients of the communication”[168] – Gonda – and also that the “class” of person(s) threatened must be sufficiently particular and create an “imminent” danger to satisfy constitutional inquiry.[169] 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].”[170]
In a two-one split, the Appellate Court affirmed reviewing de novo[171] 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.[172] 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’”[173] under the statute, and thusly, declined to address any First Amendment issues raised.[174] 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).[175]
The dissent, however, argued that this “materially alter[ed] the plain language and purpose of that section.”[176] It stated that the court had enhanced the burden of proof placed on the government in its prosecutions under the statute,[177] and “judicially legislat[ed] an exogenous element into Section 875(c).”[178] In adopting the definition of “threat” from Black’s Law Dictionary,[179] 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”[180] it satisfies the required elements of 875(c).[181] 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.[182]
IV. Conclusion:
In the mean time, statutes like 875(c) and local State Code provisions 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.[183] 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.[184]
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.