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The First Amendment and the Internet:

United States v. Baker, 890 F. Supp. 1375 (E. D. Mich. June 21, 1995), aff’d. sub. nom., U.S. v. Alkhabaz, 104 F 3d. 1492 6th Cir. 1997


In Baker, the United States District Court for the Eastern District of Michigan applied the First Amendment to defeat a prosecution based on allegedly threatening e-mails sent over the Internet. In so doing, the court held that a statute originally drafted in response to the Lindbergh baby kidnaping and traditionally applied to threats sent via mail, telephone or telegraph applied equally to e-mail transmissions, as did the First Amendment defenses often raised in such cases.


At issue in this case was the criminal prosecution of a student at the University of Michigan, Baker, who sent certain private e-mail messages to an unknown person in Canada which expressed an interest in sexual violence against women and girls. The government charged Baker with five counts of violating a federal statute, 18 U.S.C. § 875 (c). That statute provides that "[w]hoever 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." As noted, the statute originated in 1932 as a response to the Lindbergh baby kidnaping. It originally only covered mailed communications, but its scope was soon broadened to cover any communications in order not to exempt telephone and telegraph communications.


The court did not hesitate to find that e-mail messages are likewise covered by the broad sweep of the statute. It then examined whether the First Amendment prohibited the prosecution of an individual for the charged acts given that pure speech was involved. The court noted that the threat must be aimed at a discrete, identifiable group. The action charged must also involve a "true threat," that is, a threat which is, "on its face and in the circumstances in which it is made, so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution." The statement must also be consider in light of the foreseeable recipients: a statement which would not be interpreted by such a recipient (not necessarily the intended target) as expressing a serious intention to injure or kidnap simply is not a threat under the statute. So interpreted, the court held, the statute could regulate speech consistent with the First Amendment because it would then serve to protect individuals from the fear of violence, from the disruption that such fear engenders, and from the possibility that the threatened violence would occur.


In turning to an evaluation of the five e-mail messages, the court first held that the messages could not have caused their only recipient, the unknown Canadian, to fear violence or to cause him any disruption due to a fear of violence, apparently because he was unknown and geographically remote. Thus, the only ground for prosecution of the threats was to protect from the possibility that the threatened violence would occur. The court rejected this possibility primarily because, in most cases, no discrete, identifiable group was mentioned. The messages generally referred merely to young girls, 13 to 14-year old girls, or young women. In those cases where a potential victim was identified, the court held that the requisite statement of an intention to act was lacking. The court therefore dismissed the indictment.

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