First Amendment protagonists are not always the types of people you’d choose
to chat with over lunch or a cup of coffee. The cast of characters in
federal-court free-speech cases includes anarchists, Ku Klux Klan wizards,
teenaged cross-burners, and pornographers.
One such character whose fate has been on the line is a former University of
Michigan student named Jake Baker. His case tests the limits of free speech
in cyberspace. (Editor’s Note: Baker’s case was scheduled to be argued before
a panel of federal appellate judges in Cincinnati, Ohio on August 16. The
results were not available at press time.)
Baker’s lawyers say he spent a month in jail last year for a crime that may
consist of nothing more than exceptionally bad manners. Detroit’s United
States attorney, however, says Baker is a time bomb-so likely to commit a
serious crime like rape or murder that he shouldn’t be out on the streets.
FBI agents arrested Baker in February 1995 on charges stemming from a
violent, pornographic “fantasy” he posted on the Internet. In a move he now
regrets, he used the real name of a student from one of his classes and made
her the subject of a gruesome rape and murder scene.
The story appeared on a popular Internet news group called Alternative Sex
Stories or “alt.sex.stories” in Internet jargon. More than half a million
people log on to alt.sex.stories. It is neither more brutal nor more sexually
explicit than the fiction of mainstream writers like Bret Easton Ellis and
Stephen King, but university officials say a UM alumnus in Moscow became
offended and then tipped them off.
After that, the UM’s Department of Public Safety, with Baker’s permission,
searched his room and his e-mail files and found e-mail correspondence with a
still-unknown Canadian alt.sex.stories fan in which Baker detailed plans to
abduct a woman from his dorm-plans his lawyers say were part of his vivid and
troubled fantasy life.
Sex on the information superhighway is really no different from sex on the
old information dirt roads like books and magazines. But the risk of the
unknown can be scary and people typically react to new communications
technologies by trying to rein them in. Congress this year voiced its own
wariness of the Internet by professing a fear for children and passing the
Communications Decency Act (CDA), a part of the Telecommunications Act of
1996. This act criminalized the transmission of “indecent” computer messages.
After hearings this past spring, a panel of federal judges in Philadelphia
declared CDA unconstitutional. Some of those who testified at hearings before
the panel included librarians who were concerned that they might be
criminally liable for transmitting texts such as Ulysses or Lady Chatterley’s
Lover. We may think that the days of censorship of literature are bygone, but
there was nothing in CDA to prevent prosecution of a teacher or librarian who
provided electronic access to books or articles that some would deem improper
for children. For example, a government witness testified that an online
picture of a nude statue from a museum could be blocked under CDA.
CDA had not been enacted when the FBI arrested Baker, so the US Attorney
charged him under a little-used federal law that makes it a crime to threaten
someone through an electronic communication. The law had never before been
applied to e-mail or other computer transmissions.
The FBI pieced together the e-mail correspondence and the fiction story and
decided that Baker had used interstate communication to threaten to injure
another person. After a grand jury indicted Baker, a federal magistrate in
Detroit denied bond. The young student was suspended from the University of
Michigan and spent a month (including his twenty-first birthday) in federal
But then Federal District Judge Avern Cohn in Detroit dismissed the charges
against Baker, saying they violated the First Amendment. Baker was being
charged, the judge said, not for a “true threat,” but for offending the
university and the community. Even the most offensive speech is protected
under the First Amendment. The government has appealed the dismissal and,
after hearing arguments on August 16, it is possible that the federal appeals
judges may have reinstated the charges.
Baker says all of his computer chronicles, even the e-mail to the Canadian,
were pure fantasy-a product of the stress he felt when he learned his college
loan might run out. In contrast, convictions under the threat statute include
a man who called the FBI and threatened to cut another man’s head off.
Another case involved a Jewish Defense League member who (during a 1974 visit
to the US by Yasir Arafat) said in a television interview, “We are planning
to assassinate Mr. Arafat.”
Federal judges have been troubled by the fact that the federal law did not
really define “threat”-the statute punished a crime consisting solely of
spoken or written words. The hard part is drawing a fine line between
protecting people from dangerous threats to their safety and protecting the
right to free speech. In the Arafat case, the court limited the definition of”threat” to an “unequivocal, unconditional, and specific expression of
intention immediately to inflict injury.” Under this definition, the judges
felt comfortable upholding the JDL member’s conviction. After all, dressed in
battle fatigues and with a .38 pistol by his side, he had clearly threatened
to assassinate Arafat. He, by the way, received a suspended sentence.
Reinstating the charges against Jake Baker would be bad news not only for
Internet users but for authors and publishers whose works are violent or
sexually explicit. They would constantly have to be on the lookout for police
who might interpret their words as threats. Indeed, some people would like
that. Feminist legal scholar Catharine MacKinnon has written a
friend-of-the-court brief on the government’s side in the Baker case,
condemning the Internet as a shield for pornographers. MacKinnon’s influence
in Canada has led to confiscation of American books at the Canadian border,
many of which contain homosexual themes.
Government censorship never truly disappears, it just takes on different
Joan H. Lowenstein is a former broadcast journalist and lecturer at the
University of Michigan. She now practices law with Seeligson & Jordan in Ann