[1] Computer networks are systems of interconnected computers that allow the exchange of information between the connected computers. The Internet is the world's largest computer network, often described as a "network of networks." The Internet is decentralized in that there is no central hub through which messages or information must be routed, and no central governing body. For a brief discussion of computer networks and their uses, see Edward Cavazos and Gavino Morin, Cyberspace and the Law: Your Rights and Duties in the On-Line World, 2-11 (1994). E-mail allows computer network users to send messages to each other which are received at an "electronic mailbox" identified by the recipient's unique user name and address. Id. at 5. A survey of Internet use conducted in October, 1994 counted 13.5 million consumer Internet users, and 27.5 million e-mail users. Peter H. Lewis, On the Net, New York Times, May 29, 1995, at 39. The survey tallied male users as outnumbering female users by a ratio of 2 to 1, and children aged seventeen and younger as constituting 2.3 percent of the users. Id.

[2] The American Civil Liberties Union Fund of Michigan has filed an amicus brief arguing in favor of dismissal.

[3] See, e.g., Megan Garvey, Crossing the Line on the Info Highway: He Put His Ugly Fantasy on the Underneath. Then He Ran Smack Into Reality., The Washington Post, March 11, 1995, at H1; Joan H. Lowenstein, Perspective: How free is speech in cyberspace?, Chicago Tribune, March 12, 1995, at 1.

[4] The messages were apparently stored on the hard drive of the computer in Baker's dormitory room; they may also have been stored on the University of Michigan computer Baker accessed through his account. Baker gave the authorities permission to search his stored e-mail messages.

[5] Baker's detention for 29 days is disturbing. The initial University of Michigan General Offense Report dated January 27, 1995, indicates that as early as January 20, 1995, a psychiatric evaluation was performed and concluded that Baker did not display any risk factors for potential violence. The University's investigation began on January 18, 1995. What evaluation, if any, was performed by the Washtenaw County Prosecutor, the logical prosecuting authority, is unknown. The FBI was initially contacted on January 26, 1995. A psychological evaluation was performed at the request of University officials on February 7, 1995, and concluded in a report dated February 9, 1995, that there was "no evidence that [Baker] is a danger to others or himself." Another psychiatric evaluation, also dated February 9, 1995, similarly concluded that Baker "presented no clear and present danger to [the student whose name he had used in the story] or anyone, at the time of the interview." Why Baker was arrested and taken into custody on February 9, 1995, is inexplicable. The government indicated in its supplemental brief that Baker's arrest was justified as preventing "Jake Baker and other like-minded individuals from acting on their violent impulses and desires." In light of the information available at the time of Baker's arrest, this justification seems farfetched.

[6] At oral argument on May 26, 1995, the government stated that it abandoned the story as a basis of prosecution because it did not constitute a threat.

[7] Baker recognizes that the Sixth Circuit considers [[section]] 875(c) a general intent crime, but asks the Court to "revisit the issue." Because Sixth Circuit precedent is clear on this point, the Court declines the invitation to revisit the point.

[8] For discussion of legal applications of the speech act theory approach to philosophy of language, see Peter Meijes Tiersma, The Language of Defamation, 66 Texas L.J. 303 (1987); Comment, The Language of Offer and Acceptance: Speech Acts and the Question of Intent, 74 Calif. L. Rev. 189 (1986).

[9] 18 U.S.C. [[section]] 871(a) provides:

Whoever knowingly and willfully deposits for conveyance in the mail or for delivery from any post office by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President, or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both.
[10] While Watts involved political speech, the Court must reject the government's implication that Watts establishes a separate standard for true threats in the context of political speech. The Watts opinion does not explicitly limit itself to political speech, and the Sixth Circuit has recognized that the political nature of the speech in Watts was only one factor considered by the Supreme Court. Cox, 957 F.2d at 266. (observing that the Supreme Court in Watts "considered the conditional nature of the threat, the fact that it was made during a political discussion, and the fact that the response of the audience was laughter.")

[11] The constitutional "true threat" question is also distinct from the sort of psycholinguistic threat analysis often performed by the FBI and other investigative agencies. See Murray S. Miron & John E. Douglas, Threat Analysis: The Psycholinguistic Approach, FBI Law Enforcement Bulletin, Sept. 1979, at 5; Parke Elliott Dietz, et al., Threatening and Otherwise Inappropriate Letters to Members of the United States Congress, Journal of Forensic Sciences, Vol. 36, No. 5, Sept. 1991, p. 1445; Parke Elliott Dietz, et al., Threatening and Otherwise Inappropriate Letters to Hollywood Celebrities, Journal of Forensic Sciences, Vol. 36, No. 1, Jan. 1991, p. 185. At oral argument, the government acknowledged that the FBI's threat analysis section had not analyzed the communications involved here, but indicated that the FBI agent who obtained the initial criminal complaint may have been in contact with the section.

[12] Lincoln and Roy specifically address the statute barring threats against the President, 18 U.S.C. [[section]] 871(a). While cases under 18 U.S.C. [[section]] 871(a) are helpful to analyzing a prosecution under 18 U.S.C. [[section]] 875(c), there is a significant difference between the two statutes in that there is never any doubt under the former statute that the alleged threat has a sufficiently specific target.

[13] The Court's following Kelner's analysis assures that what is a crime in Michigan, Ohio, Kentucky, and Tennessee is also a crime in New York, Connecticut, and Vermont. Seemingly, the government would have it otherwise.

[14] In some cases it is unclear whether the defendant's argument goes to his or her intent or to the content of the statement. See Melugin v. Hames, 38 F.3d at 1484 (analyzing defendant's claim that his letter was not a "true threat" because it was "one of perhaps hundreds of 'crackpot communications' . . . receive[d] each year from frustrated and/or unschooled litigants.") If Melugin stands for the proposition that any statement which meets the Roy intention standard is constitutionally prosecutable, the Court declines to follow it. The Sixth Circuit has not so held, and in Twine, 853 F.2d at 680, the Ninth Circuit explicitly held that conviction under [[section]] 875(c) required a showing of specific intent.

[15] Although the court in Cox looked to the actual reaction of the recipient of the phone call and the requested person, the statute only requires that a reasonable person would expect the recipient to interpret the statement as a serious expression of an intention to injure or kidnap.

[16] This test is not satisfied by finding that the desires expressed in a statement are so deviant that the person making the statement must be unstable, and therefore likely to act in accordance with his or her desires at any moment. Something in the statement itself must indicate some intention imminently to act. Otherwise, the statement may be unsettling or alarming, but is not a true threat for the purposes of the First Amendment.

[17] Role playing and adopting assumed identities is common in on-line communities. See, e.g., Dorion Sagan, Sex, Lies, and Cyberspace, Wired, Jan. 1995, at 78 (discussing the multiple, and differently gendered, identities assumed by the author on the commercial service America Online--and subtitled "Online, no one knows you're a dog. Or a male. Or a 13-year-old girl.")

[18] Baker and Gonda exchanged at least forty-one messages between November 29, 1994 and January 25, 1995. During the same time frame, Baker also corresponded by e-mail with other people who had read the stories he publicly posted.

[19] The Senate's recent passage of a telecommunications bill including Senator Exon's measure criminalizing the distribution of "filthy" material over computer networks suggests that the First Amendment's applicability to on-line communications has not been well considered. S. 652, 104th Congress, 1st Sess. (1995); see also, Edmund L. Andrews, Senate Supports Severe Penalties on Computer Smut, N.Y. Times, June 15, 1995, at A1.

[20] The typographic, spelling, and grammatical errors in this and the following quotations are reproduced from the originals.

[21] "BTW" is shorthand for "by the way."

[22] See note 3, supra.

[23] See note 4, supra.

[24] As is discussed above, the law now codified at 18 U.S.C. [[section]] 875 was revised in 1934, Pub. L. No. 72-274, as telephones and telegraphs began to be used to transmit threats.

[25] See Robin Blaber v. University of Victoria (March 14, 1995) Victoria 94-4823 (BCSC) (dismissing student's free speech challenge to University of Victoria's potential revocation of his computer account).

[26] See Doe v. University of Michigan, 721 F. Supp. 852 (E.D. Mich. 1989) (striking down University of Michigan harassment policy of First Amendment grounds).

Baker Footnotes / Stuart Beraha / sberaha@ic.net