When Justice Oliver Wendell Holmes posed the question about falsely shouting fire in a crowded theater, he was illustrating that freedom of speech does have limitations.
In 1995, the first criminal threat case on the Internet would again test the limits of free speech. In 1994, Jake Baker (Jacob Alkhabaz) was a University of Michigan student, who was described as quiet and nice.
He wrote stories with innocent titles like “Going for a Walk”. But he harbored some demons. The stories were graphic depictions of kidnapping, raping, torturing and killing of young women – so called snuff stories. Jake posted these stories on the Internet at a site called alt.sex stories (ass). The Internet was in its infancy. His case raised issues we had not faced before.
Interestingly, 14 years later, we’re still faced with the perplexing question: Where does Freedom of Speech End? And when does it become a crime?
To examine the issue, it’s interesting to look back at the Baker case, which I was involved in. Back then, few people knew of, let alone used the Internet. Baker was discovered, thanks to a Michigan alum, who happened to be in Russia. He was using the Internet and stumbled across one of Jake’s snuff stories and knew from the IP address that Jake had some affiliation with the University of Michigan.
The story was one that used the name of an actual Michigan coed as a victim in the story. (In court papers and media accounts, she would be referred to as Jane Doe.) The real Jane was not aware of her characterization in the story or that she was about to be a player in an international cyber – 1st Amendment controversy.
The Michigan alum contacted University officials about Jake’s snuff story. The matter was turned over to the University Department of Public Safety, which talked to Jake and obtained a search warrant for Jake’s computer and email account.
Jake was residing in the East Quadrangle Dormitory (the same dorm where Ted Kaczynski once resided).The search revealed several more snuff stories authored by Jake. Two of the stories used Jane Doe’s name and one of these had her actual address and phone number.
One of the stories used Jane Doe’s last name as the title of the story. A paragraph in that story achieved some notoriety as it was repeated often by the media:
“Then, Jerry and I tie her by her long brown hair to the ceiling fan, so that she’s dangling mid-air. Her feet don’t touch the ground. She kicks trying to hit me, Jerry or the gorund (sic). The sight of her wiggling in mid-air, hands rudely taped behind her back, turns me on. Jerry takes a big spiky hair-brush and starts beating her small breasts with it, coloring them with nice red marks. She screams and struggles harder. I’ve separated her legs with a spreader-bar; now I stretch out her pussy lips and super-glue them wide open. Then I take a heavy clamp, and tighten it over her clit. Once it’s tight enough, I let go.”
In addition to Jake’s stories UMDPS gained access to Jake’s email account. The search of the email produced numerous messages between Jake and an individual identifying himself as Arthur Gonda, believed to be residing in Ontario, Canada.
In these messages Jake and Gonda also discuss actually getting together to commit the acts Jake had been depicting in his stories. This is an excerpt from an email sent by Baker to Gonda in December, 1994:
“I’ve started doing is going back and rereading 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 room 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 bag. Then hurry her out to the car and take her away …what do you think?
This was Gonda’s response:
“Hi Jake. I have been out tonight and I can tell you 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 of their flesh. I HAVE to make a bitch suffer!”
Jake’s response in part:
“I know how you feel. I’ve been masturbating like the devil recently. Just thinking about it anymore doesn’t do the trick …I need TO DO IT.”
UMDPS were advised by the Washtenaw County Prosecutor that there was no appropriate state statute with which to prosecute Jake’s actions. UMDPS then contacted the local office of the FBI. After reading Jake’s stories and emails, I concluded that the emails in context with the stories constituted a threat as defined by 18 USC 875(c), “Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or to injure any person….”
I presented the case to the Detroit US Attorney’s office, which agreed with my conclusion. Our contention was that Jake had threatened not only Jane Doe, but any coeds in East Quad.
Jake was arrested on a complaint and warrant and arraigned before a U.S. Magistrate. We did not request detention, but after reading some of Jake’s literary works, the Magistrate on his own motion detained Jake as he believed him to be dangerous.
The case was assigned to U.S. District Court Judge Avern Cohn. It was apparent that Judge Cohn was not a big fan of the Government’s case. He made it clear that Jake’s stories could not be part of the prosecution as they were protected by the 1st Amendment’s free speech clause.
Consequently, when Jake was indicted, all references to the stories were eliminated. (I argued against dropping the stories as I believed Judge Cohn would toss the case no matter what we did. In addition to providing context, the stories named a potential victim with her actual address.) Judge Cohn did dismiss the indictment, saying Jake’s emails were nothing more than a private conversation between two males discussing their shared sexual fantasies and were thus protected as free speech. Judge Cohn went on to criticize the Government and its “overzealous agent”.
The Government appealed to the 6th Circuit Court of Appeals. A 6th Circuit three -judge panel in a curious opinion said Jake’s emails did not constitute a threat because it was, “not conveyed to effect some change or achieve some goal through intimidation.” The dissenting Judge, I think correctly, points out that if Congress intended to require proof of such an intent, they would have said so. In fact in section 875(b) of the same statute, Congress specifically criminalizes threats made with the intent to extort money and provides for more severe penalties. (The case made it into the Criminal Law textbook, but it’s in the chapter on attempt not threats.)
I don’t know where Jake is today, and I have no reason to believe he ever tried to bring his fantasies to life. Maybe he would have had we not interceded. But in an age of terrorism, both domestic and international, law enforcement is left with the conundrum of how to address internet communications that could be preparation for criminal acts — or just fantasies.
Such communications of Eric Harris and Dylan Klebold were ignored ten years ago – Columbine resulted.
To contact Greg Stejskal write: email@example.com