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 prison.
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 forms.