[Sharing Lights]

Part III


Commentary

§2.02.2 (B) Harassment

Prior to technology, harassment could reach only a limited number of people. Word of mouth, mail, and even publication in a newspaper pale in comparison to the potential numbers of people one can reach through cyberspace. The Internet allows an individual to create an online persona with little relationship to his or her real life identity. This "facelessness of cyberspace" lends itself to extreme forms of expression and allows people to say things that they might never say face-to-face. This certain sense of removal does not absolve people who harass, threaten, or stalk others in cyberspace of legal responsibility.

A possible scenario that may be addressed by §2.02.2 (B), Harassment by electronic communications, may be the following case of Will County, Chicago. [FN1] In this case, an individual proficient with the use of a computer used the Internet to post a child's (or adult's) name and telephone number on sexual explicit Internet sites. This posting invited visitors to call and inquire about the named individual, who was a child. As a result, the named individual was subjected to consistent, harassing and possibly sexual explicit telephone calls every day of the week, at any and all hours. The repeated inquiries caused the recipient of the calls and/or messages to become fearful for his/her safety and the safety of their family. The Boehle family decided that they had to move outside of Will County in order to protect their daughter, who was the subject of the postings, telephone calls and messages, from any potential harm they feared might occur as a result of such harassment. [FN2]

The theory is that harassing someone in cyberspace is just as illegal as doing it through the mail and/or via the telephone. The purpose of this section of the statute is to open the doors of cyberspace to the legal consequences of online harassment. Without such a section, if a state is not one to have a law regulating electronic harassment, the victim must wait until the harassment takes on an off-line form. [FN3] Such a "waiting period" can be dangerous to the victim, thereby, this section of the statute allows a victim to see help before the harassment can escalate to a potentially harmful result.

§2.02.2 (C) Threats

Under the common law and many statutes, a threat was only one of the elements of the offense of extortion or blackmail, and the prosecution must also show that the purpose of the threat was to obtain money, property, or some other thing of value. [FN4] The crime of threatening another individual has evolved from the use of mail, telegraph and telephone as subscribers began to use the Internet to reach their intended victims. Online threats are perhaps the most complicated offense of this statute. The nature of the offense is serious because the law must determine which transmissions are "true threats" rather than protected speech. [FN5] While it is important to prohibit threats, it is also important not to chill free speech in cyberspace by too broadly defining what speech equals a "threat." [FN6] However, "true threats" are not protected by the first amendment and therefore they can be prohibited without violating the United States Constitution. [FN7]

The Internet functions as a vast marketplace of ideas, and as such, it is extremely important that it receive the highest level of First Amendment freedom of speech protection possible. Many people use e-mail, posting to newsgroups and bulletin boards, chat rooms and web pages, or any combination to send threats to others. [FN8] The consequences of this behavior are two-fold: 1) threats are harmful to their victims and 2) threats are harmful to the freedom of speech in cyberspace, because individuals fearing retaliation may cease to express their opinions or even enter the forum at all. The purpose behind prohibiting threats is to prevent the harm that would come of their actual execution and to prevent the harm that comes from the mere threat itself, such as the anxiety and fear that are created by a threat of harm.

The "True Threats" standard that is encompassed in §2.02.2 (C)(1)(a-b) is one which contains both an objective and subjective standard. [FN9] The objective part of the test asks whether a reasonable person would construe the defendant's speech or statement as a threat, given the context in which it was made. To have a test only with an objective element is very restrictive on free speech because the "reasonable person" standard can be problematic. It invites a jury to consider the unique sensitivities of the particular recipient. For instance, a defendant's speech may be prohibited in one instance, where the recipient is unusually sensitive, while it would not have been prohibited if the "threat" if had been directed at a less sensitive recipient. As a result, the drafter added a subjective element to this test, which looks at the speaker's intent in making the statement. The subjective element increases the burden on the prosecution and thus makes it less likely that speech that is not truly a threat will be attacked for the sole purpose of silencing the speaker. It is the threat itself that, simply being uttered, causes the harm the statute aims to prevent: the victim's sense of fear. No further "over act" is needed. To date, the Supreme Court of the United States had not spoken directly on the issue of a "true threats" test. [FN10]

The United States v. Baker case illustrates the reluctance of the Courts to punish all but the most egregious of threats under this "true threat" standard. [FN11] While a student at the University of Michigan, Baker began to write sexually graphic and explicit stories depicting the rape and torture of women. In these stories, Baker used the name and physical description of a classmate as a main character in one of these stories. After these sexually explicit stories were posted on the Internet, several individuals read these postings and reported Baker out of concern for the named female student in these stories. [FN12] Mr. Baker was charged with five counts of violating 18 USC §875(c). The district court dismissed the charges against Baker by ruling that the threatening messages were "only a rather savage and tasteless piece of fiction" and without more evidence, was entitled to First Amendment protection. [FN13] The Court of Appeals in the Baker case held that to constitute a "true threat" under 18 USC Section 875(c), a communication must be such that a reasonable person 1) "would take the statement as a serious expression of an intention to inflict bodily harm (mens rea) and 2) would perceive such expression as being communicated to effect some change or achieve some goal through intimidation (the actus reus)." The Court of Appeals held that while Baker's stories and messages were offensive, they did not constitute "true threats" because they were sent through private e-mail to a friend. In other words, threats made in a private e-mail, to an individual who is not the target of the threats, and made about an indistinct, undefined group will not likely meet the "true threat" standard.

A scenario that may be addressed by §2.02.2 (C) is that of a person sending messages directly to a specific victim. A nineteen year old St. John's University student was charged with aggravated harassment for terrorizing an Indianapolis family. [FN14] He allegedly sent the family threatening e-mail that promised "to hunt then down, rape their 12 year old daughter, and kill them." [FN15] In another case, a fourteen year old boy was charged with threats to commit murder and civil rights violations for making anti-Semitic death threats to his teacher via the Internet. [FN16] The differences in these cases to Baker is that these perpetrators threatened violence against specific individuals intending to cause fear in their victims. These victims took these threats seriously and thus these two perpetrators could be prosecuted under §2.02.2 (C).


to be continued