The long arm of the law
Emotionally, it’s hard for me to defend Jake Baker. At best, the University of Michigan undergraduate is an amateur writer with a repellently misogynistic imagination. At worst, Baker is using his horrific rape-torture-murder stories, posted in the Usenet newsgroup alt.sex.stories, to spell out his real sexual fantasies, in which case he’s one sick puppy.
But the issues raised by a Michigan federal prosecutor’s decision to prosecute Baker, on the basis of stories and e-mail he transmitted over the Internet, have nothing to do with the question of whether Baker is a nice person, or even a healthy one. Instead, the case spotlights the question of whether what he transmitted is a crime — or should be.
Baker, a 20-year-old sophomore linguistics major at the time of postings, doesn’t look like much of a menace. The five-foot-six student is estimated to weigh in somewhere between 120 and 130 pounds. But that featherweight frame was home to some Frankensteinian sexual fantasies, for which Baker thought he’d found an audience in the alt.sex.stories newsgroup.
It was in early October of last year that Baker posted “Gone Fishin’,” a story in which a teenaged girl and her boyfriend are raped, tortured and murdered. Later that semester, he posted a second story, “A Day at Work,” which described another rape, torture, and murder, this time of a randomly chosen victim. Although many readers of alt.sex.stories were appalled by Baker’s fiction, and said so publicly, Baker also found a fan, one “Arthur Gonda,” who posted from an Ontario, Canada, account. Gonda and Baker began exchanging mail in which they described sadistic sexual kidnapping/murder scenarios they’d fantasized about.
In the meantime, Baker continued to write for the public as well — his career as a Marquis de Sade wannabe culminated in a piece in which the narrator and his friend Jerry sexually torture a young woman, then douse her in gasoline and flick a lit match at her. Posted on January 9th, the story was unusual (even for Baker’s fiction) in this respect: Baker had given the story’s female victim the same name as that of a fellow student. (In this piece we’ll call her “Jane Doe” — Baker claims he chose Jane’s real name, which included the syllable “staff,” because it suggested a phallic pun.)
No mere summary of any of Baker’s stories can do it justice. So, in order to give you a feel for why people find Baker’s writing so outrageous, here’s one of the less explicit passages from the “Jane Doe” story:
“She’s shaking with terror as Jerry and I circle her. She’d almost completely nude now – we’ve made her take off all her clothes except for her bra and panties. As Jerry and I pass by her, we reach out and feel her velvety flesh, caress her breasts and ass through her underwear. Jerry and I snap pictures of her tiny trembling body from all angles.
“She says in a little, terrified voice, ‘Why are you doing this… I’ve never hurt you … p-please stop!’ I pause in front of her. Jerry smiles at her terror. He laughs at her pitiful pleas. I say, ‘Shut the fuck up, stupid whore!’ and hit the side of her head, hard. She collapses onto the ground, crying, curling up into a little ball.”
Baker’s story gets worse from there. It gets so graphic, in fact, that ten days later, when a 16-year-old girl in Moscow read the story online, she felt moved to tell her father how troubling she found it. Her father in turn told his friend Richard DuVal about what his daughter had found on Internet. DuVal, a University of Michigan alumnus, was so offended by the story — posted from a U. of Michigan account, no less — that he called up his alma mater to complain. And that single action triggered a world of hurt for Jake Baker.
The day after the U. of M. officials were contacted, Baker lost his computer privileges. Soon after, he was met at his dorm room by officials from the U. of M. Department of Public Safety (the campus police) who asked to examine Baker’s room. Baker consented to that search, as well as to a search of his computer account by university officials — he believed, mistakenly, that by disclosing everything, it would quickly become apparent that he intended no harm to Jane Doe or to anyone else, and that his public and private writings about violent sexual fantasies would be seen as First Amendment-protected activities. As Jesse Jannetta, his roommate, told the Washington Post, Baker “thought if he cooperated and gave the university what they wanted — told the truth — it would all work out.”
Instead, what worked out is that University of Michigan officials sought his voluntary withdrawal from the school. When Baker failed to agree, the administrators proceeded to suspend him. Baker learned of the suspension when he was met by armed U. of M. officers after class on Feb. 2, given a copy of the suspension letter from University of Michigan President James Duderstadt , then taken to his dorm room and given 15 minutes to gather what he could prior to being escorted off campus.
But if Baker thought the worst had happened, he was in for a shock. By consenting to have university officials look through his e-mail, he guaranteed that they’d find his correspondence with Gonda, which he’d saved. And if the public postings to alt.sex.stories were hair-raising, the private mail was even worse. In December, Baker had sent Gonda a message that included the following;
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 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?
Gonda quickly responded:
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 for their flesh. I HAVE to make a bitch suffer!
It’s unclear that “Arthur Gonda” is a real person — no such name is listed in the Ontario tax records, which suggests that “Arthur Gonda” is a pseudonym, or perhaps even a wholly fictitious persona (invented, perhaps, to spoof Baker). Even so, the message from Gonda, with its expression of a feeling of compulsion*, is quite disturbing. But can we infer from the “Gonda” email that *Baker* was actively plotting to harm someone? Or was he simply sharing his fantasies with a like-minded correspondent? University officials didn’t think they could take any chances, which is why they suspended Baker and why they turned over the material to federal law-enforcement officials.
And when the feds stepped in, their actions regarding Baker transformed the case: What had begun as merely an interesting question about the authority of state universities to discipline students who say scary things had become a “federal case” that raised fundamental questions of due process, criminal law, and First Amendment law. University administrators believed that, in addition to violating university policies somehow, Baker seemed capable of and willing to commit a crime. The FBI and the U.S. Attorney’s office took it one step further — they were determined to find a way to prove that Baker had already committed one.
That’s why, a week after Baker’s suspension, FBI agents arrested Baker at his lawyer’s home on charges of violating Title 18, U.S. Code, Section 875 (c), which prohibits the transmission “in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another.” Theoretically, a defendant convicted of this felony can be punished by a prison term of up to five years.
It was an interesting legal theory for the government to advance — before they had Baker arrested, prosecutors had hinted they might charge him on a federal distribution-of-obscenity count. But that approach looked pretty iffy, for a technical reason: the likeliest federal obscenity statute (18 USC 1465) had been persuasively interpreted in 1987 by the Tenth Circuit Court of Appeals as “restricted in its terms to the transportation of tangible objects.” (See the United States v. Carlin Communications, 815 F.2d 1367.) Another federal statute that might be applied — 47 USC 223, the obscene-phone-call statute that Sen. James Exon of Nebraska has been trying to amend (see last month’s column) — was just as disappointing, but for a different reason: the statute punished noncommercial distributions of obscenity with relatively light sentences (six months was the maximum).
And prosecuting Baker for mere obscenity would seem to be missing the point — what about the sense that Jane Doe (or her name, at least) had been violated? What about the sheer scariness of Baker’s writings? I imagine the government reasoned that prosecuting the guy for an interstate “threat” would be a twofer: the statute provided for appropriately severe penalties, and a successful prosecution would give the government an effective tool to police frightening speech on the Internet.
Yet while Baker’s public and private writings on the Net were frightening in the broad sense — it *is* scary when you think about the fact that there are people out there who like dreaming up horrific scenarios of the Baker variety — does it make sense to classify them as a “threat”? In the everyday sense of the word, Baker’s writings were no “threat” — he took pains to ensure that his alt.sex.stories postings were taken as fiction. And Baker’s expression of sick desires in his messages to Gonda, disturbing as they are, don’t seem to be “threats” either.
But the government is relying on the theory that the commonsense notion of “threat” doesn’t apply — instead, they have insisted, the *legal* meaning of the term is broad enough to encompass communications that the speaker never intended to be seen as threats. In a set of proposed jury instructions on what constitutes a “threat,” the prosecutors submitted the following language: “A transmission contains a threat if a reasonable person would have taken the defendant’s statement as a serious expression of an intention to inflict bodily harm or kidnap. The government does not have to prove that a defendant subjectively intended to threaten the person of another.”
In criminal-law terms, the second sentence of the government’s definition has a lot going for it. Most of the federal Courts of Appeals have held that Sec. 875(c) is a “general-intent crime,” which means the government needs only to prove beyond a reasonable doubt that the defendant intended to *communicate* the words in question — they don’t need to prove that defendant intended the words to be *understood as a threat*. And you can see why the courts have taken the general-intent approach — it keeps defendants from threatening to rob banks or hijack planes or kill people and then claiming at trial to simply have been misunderstood. (“I didn’t mean for you to be threatened — I was just engaging in performance art !”)
But the first sentence of the quoted language — the part that defines what a threat is — is more problematic. Since Sec. 875(c) is a statute that can be used to punish pure speech (that is, you can be found guilty even though all you’ve done is say something), and since speech in general is protected by the First Amendment, there is a Constitutional interest in making sure that such a “pure-speech offense” is narrowly and precisely defined. Which explains U.S. Supreme Court’s 1969 decision United States v. Watts, 394 U.S. 705. In that case, the Court had to interpret a statute (18 USC 871, which prohibits threatening the president) closely related to 18 USC 875, the statute under which Jake Baker was indicted. The justices concluded that a “statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is Constitutionally protected speech.” And if this conclusion is true for Section 871, it’s surely true for Section 875.
Even if the government doesn’t have to prove that defendant intended a threat, said the Court in the Watts case, “the statute initially requires the Government to prove a true threat.” A statute aimed at punishing “threats” must be limited to “true threats,” or else it is unconstitutionally overbroad — after all, a reasonable person might conclude from listening to a Marxist revolutionary’s public harangue that the speaker was willing, or even eager, to kill specific people in order to bring about the revolution of the proletariat. In that instance, what the government in the Baker case would define as a threat is something that would clearly qualify as speech protected by the First Amendment. And in the final analysis, the First Amendment was drafted in order to protect whole classes of speech that a majority of the public might find threatening or frightening.
So, with the decision from U.S. v. Watts in mind, how do you go about distinguishing the merely scary from the “true threat”? Normally this isn’t much of a problem — a review of the reported cases under Section 875(c) reveals that the “threats” in question almost invariably meet the narrower, commonsense definition of the term as well as any legal definition. Only a 1976 case, United States v. Kelner in the Second Circuit, has addressed in any detail the interplay between the First Amendment and Section 875(c)’s “true threat” requirement. Relying on the Supreme Court’s holding in U.S. v. Watts, the Court of Appeals in the Kelner case stated:
The purpose and effect of the Watts constitutionally-limited definition of the term ‘threat’ is to insure that only unequivocal, unconditional and specific expressions of intention immediately to inflict injury may be punished — only such threats, in short, as are of the same nature as those threats which are ‘properly punished every day under statutes prohibiting extortion, blackmail and assault without consideration of the First Amendment issues.’…
So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution, the statute may be applied.
Now, the trial court in the Jake Baker case is not bound by precedent to apply the Kelner case — the Baker trial is taking place in a different circuit. But the judge is perfectly free to find the Kelner case *persuasive* on the issue of what qualifies as a “true threat” under 875(c), and if he does he’s likely to create problems for the prosecution, since no single communication of Baker’s meets all the elements of the Kelner definition of a “threat.” For example, there’s no doubt that Baker’s Jane Doe story was “specific as to the person,” but it was hardly “unequivocal,” what with Baker’s insistence at the time of publication that the piece was a “story” — a work of fiction. This probably explains why the feds, in a superseding indictment, abandoned their claim that the Jane Doe story itself amounted to a “threat” — the new indictment focuses on Baker’s e-mail to Gonda.
Yet the new indictment has its own problems: even if you consider all Baker’s e-mail together and interpret the mail as the government does, it is neither “immediate” nor “specific as to the person” as the Kelner definition of “threat” requires. In order to accept the prosecution’s theory of the case, you have to accept the novel argument that all of Jake Baker’s public and private writings, *taken together*, qualify as a “threat” for 875(c) purposes. Given that the Watts case also specifies that it’s the judge, not the jury, that makes the threshold determination as to whether a communication is a “true threat,” it seems highly possible at this writing (early June) that Baker’s trial-court judge will grant defendant’s motion to dismiss, which was argued on May 26.
[Author’s note: Just before press time, it was announced that U.S. District Judge Avern Cohn had granted Baker’s motion to dismiss the case. In his written opinion granting the motion, Cohn was critical of prosecutors’ decision to pursue the case in the first place: “The government’s enthusiastic beginning petered out to a salvage effort once it recognized that the communication which so much alarmed the University of Michigan officials was only a rather savage and tasteless piece of fiction.” It is not yet known whether the government will appeal Cohn’s decision.]
In the meantime, regardless of one’s personal feelings about Baker, it’s easy for a criminal or Constitutional lawyer to conclude, as Baker’s own lawyers do, that “[t]he government has abused the purpose of the statute in attempt to silence Jake Baker’s admittedly controversial writings.”
That’s my own conclusion, which makes it intellectually easy for me, to defend Jake Baker. If only the intellectual aspect — the legal and Constitutional analysis — were the end of the story. The fact is, I still have my emotions to contend with, and I don’t like what I’ve read of Baker’s writings.
You see, I can’t dispute that the guy has what I consider to be vile thoughts (although I suppose that *could* be disputed–we can’t say for sure what his motives are, and some people play a sort of “Can you top this?” game on the Net, competing to shock each other or gross each other out). And the consistency and obsessiveness of the kidnapping/rape/torture/murder theme in his writing make me wonder how I’d feel if Baker, after winning this case (as I think he will), were to go on and act out any of his sadistic scenarios.
The thought that gives me a certain amount of peace is that Baker has shown no sign of doing so. The people who know him best think him incapable of doing actual harm to anyone, he’s been declared harmless by three different psychiatrists, and he was reportedly quite mortified to learn that, thanks to university authorities, Jane Doe had read the story in which the victim bears her name. “I’m really sorry that this came to her attention,” Baker is reported to have said. “I never meant to hurt her.”
Regardless of whether I take his expressed regrets at face value, I have to distinguish between a) someone who has vile thoughts and writes fiction about them and b) someone who actually acts on those thoughts. What little I know about sexual fantasies suggests to me that people don’t make moral choices about what kinds of fantasies to have. Jake Baker apparently thought that, so long as he was merely writing about this stuff, he wasn’t doing any harm. Even if that oversimplistic notion is not true (arguably, Baker should have realized that posting a story about a real person might get back to that person), it doesn’t translate into a malicious act.
And who among us can say he’s never wished to kill or injure someone? Who among us can say that he has never expressed such a thought to another person?
When I wrestle with these emotional issues, here’s how I justify defending Jake Baker:
It may well be the case that Baker is a human time bomb, just ticking away and waiting for an opportunity to physically kidnap and assault some woman. (That’s certainly what two U.S. magistrates thought — in decisions based solely on Baker’s writings, they denied Baker bail. The student spent a month in jail until the federal judge in charge of his case, Avern Cohn, approved his release on $10,000 bond.)
But even “human time bombs” are presumptively innocent, they have the right to freedom of expression, and they have the capability of choosing, morally, not to act out their desires. In a free society, we begin with the assumption that human beings are in general responsible for their actions– we do not assume that they are responsible for their thoughts, or that vile thoughts and desires make someone a criminal.
And so long as I can still tell myself all this, and still believe it, I can still get to sleep at night.