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Baker case
Over the past few weeks, I have been reading the book, "Sex, Laws and
Cyberspace." by Jonathan Wallace and Mark Mangan. It covers many of the
free speech issues which we have discussed in class. Several of the
cases are discussed in depth.
Today, Joey posted a article about the final dismissal of the Jake Baker
case. To me, this article carried the implication that the U.S. courts
have decided that what Baker did might not be to everyone's taste, but
that it was within the law, and should be allowed on the grounds of
first amendment rights.
However, 'Sex, Laws and Cyberspace' points out that this is NOT the
case. In the below article, Jonathan Wallace reports that the judge
ruled that charges against Baker were a fit subject for University
disciplinary action. (The book states that the university suspended
Baker, with "strict instructions not to re-enter the university
grounds.He did it without a hearing before the student courts, citing
the little-used Regents Bylaw 2.01, which gave him such authoprity in
the name of maintaining "health, diligence, and order among the
students."" p 67). This suspension and ban have been upheld, through
the various court battle, I believe.
In short, while an objectionable posting may not be a violation of U.S.
law, it may be a violation of institution rules and can be dealt with as
such. I would agree with Paul Jones that I do not want to be in the
position of reading and censoring alt.sex files. However, assuming that
any of us ever find ourselves in the position of running a server where
we are made aware off someone doing something obviously illegal, or
ethically vile (planning the torture and mutilation of a fellow
student), I think it is a good thing to keep in mind that it is possible
to say, "no".
http://www.spectacle.org
The Ethical Spectacle, July 1995,
By Jonathan Wallace
Jake Baker
Jake Baker, a college student at the University of Michigan, was a
regular poster to an
alt.sex newsgroup. His contributions consisted of short stories about
the rape, torture and murder of women. When he wrote a story describing
a classmate and using her real name, the University found out and
expelled him and federal agents raided his house and arrested him.
Copies of email Baker had exchanged with a pseudonymous Canadian were
found, planning to meet in Ann Arbor the following summer to commit
rapes and murders together.
Baker was indicted in federal court for threatening his classmate. The
indictment was later revised to drop the charges based on the newsgroup
posting and to rely on the threats to unspecified victims made in the
email Baker exchanged with the Canadian. Late in June, a federal judge
dismissed charges against Baker, holding that his acts, while a fit
subject for University disciplinary action, were not a federal crime.
The only cyberspace issue in the Jake Baker case involves persuading the
authorities that there is no cyberspace issue.
As I say later in this issue, cyberspace requires very little new law.
Most issues arising there can be resolved with resort to existing
precedents. On most matters, the denizens of cyberspace should be
treated exactly like anyone else, not worse, not better.
The Jake Baker case would be legally identical if Baker had distributed
his stories as leaflets handed out on street corners or posted on a
corkboard in the dormitory hallway. The fact that he distributed his
material via a Usenet newsgroup does not change anything. If the
material was legal offline, it is legal online; if it was illegal
offline, it is, of course, illegal online as well. There is simply no
cyberspace issue here.
(If the House agrees to the Communications Decency Act just passed by
the Senate, ignore my previous statement; the law constitutes an
endorsement of the idea that materials legal offline could be illegal
online.)
Baker was charged under a law that prohibit the use of interstate
communications to make a threat. Had he written a letter to his
classmate Jane Doe, or sent an open letter to a newsgroup that he knew
included her, there is little doubt that he would have fallen afoul of
this law. Because he included Jane Doe as a character in one of a series
of stories he posted to an alt.sex newsgroup--the rest of which
apparently dealt only with fictional characters--and because it was not
clearly foreseeable that the story would come to Ms. Doe's attention, it
is hard to characterize this as a threat. As for the mail he exchanged
with his Canadian correspondent, there appears to have been no overt act
in connection with this conspiracy other than the email itself;
therefore this appears to be a very weak case. From this point of view,
the authorities may have acted prematurely; surveillance until the
Canadian (who apparently used an alias and has not been identified)
showed up might have resulted in a more solid case. But the Canadian may
never have showed up, because, as we all know, there is a lot of talk,
little action, on Usenet. Since the Oklahoma City bombing, there has
been a lot of attention paid to calls for violence, and the exchange of
bomb recipes, in Usenet newsgroups; if each of these were a crime, we
could fill the prisons full of Internet users.
This is an important point. Federal threat laws are intended to protect
individuals from harassment via mail and telephone calls. A threat
issued, a la Gordon Liddy, against unspecified individuals probably does
not qualify. Similarly, conspiracy laws require an overt act because
Americans tend to sit around envisioning all kinds of crimes they have
no intention of committing; there are not nearly enough prisons in
America to lock up every citizen who ever, in a private conversation,
called for the assassination of a politician he or she did not like. In
both cases, the laws are designed to define
the border between protected and unprotected speech. You have a first
amendment right to say some very repulsive things; but you may not be
able to say them standing in front of the house of your enemy, when your
audience is holding Molotov cocktails in their hands.
Jake Baker may not have crossed this line. He certainly sailed very
close to it, and if he sailed over it as far as his story was concerned,
it can only be on the grounds that the story was intended as a threat
against Ms. Doe. His mail to his Canadian friend is pretty specific
about where and when to find victims--catch a woman in the bathroom on
his hallway late at night, and carry her out of the dorm in a portable
locker--but does not name anyone. Again, there is a lot of this kind of
talk in this country and in the world, which does not result in any
action and is never intended to. Elsewhere, I
have written about (and since alluded many times to) gun advocates'
statements envisioning the murder of Mrs. Brady of Handgun Control. I
have labelled this despicable discourse and called for its condemnation,
but I have never suggested that these individuals should be prosecuted
either for threatening Mrs. Brady or for conspiring to harm her. Yet in
both the statements that I quote, the spokesmen (one an NRA board
member, the other a conservative talk show host) name Mrs. Brady and are
quite specific about the manner in which she should be killed. There is,
in fact, no legal or moral distinction between these statements and Jake
Baker's story, and if these gun advocates were charged, doubtless they
too would defend themselves on the grounds that they
were just fantasizing.
Jake Baker is a sick puppy. Obviously, he finds fantasizing about rape,
torture and murder to be richly rewarding, and enjoys discussing these
fantasies with other people. His mail to his Canadian friend suggests
that he was either quite serious, or at least half serious, about
getting together to turn fantasy into action--perhaps if the two men had
met, they would have worked each other up to it. Perhaps Baker would
have worked himself up to it on his own, and perhaps he still will,
despite this wake up call. But being a latent murderer is not a crime in
this country, and neither should it be,
because of the problems of proof and the fact (as I wrote in my
Auschwitz essay last month), that in one sense we are all latent
murderers. People are always shocked that the law punishes far more than
it prevents, but there is no way to prevent the first murder by the
incipiently murderous without rounding us all up and subjecting us to
psychological testing, and then you will lock up many non-murderers as
well.
I anticipate what Professor Catherine Mackinnon of the University of
Michigan and many others would say to this. "Do you mean that a Jake
Baker can walk around saying that he hates women, regards them as
objects for his use, and plans to rape, torture and kill them, and
nothing can be done until he actually kills someone?" This is not what I
mean. You can expel Jake Baker from school (which he was) the same way
that you would expel a racist or someone else who could not live by the
University's code of ethics demanding the treatment of classmates with
respect. You can ostracize Jake Baker, post his picture all over campus,
warn people against him and educate the world (truthfully) about his
predilections. You might even be able to obtain a civil protective order
against him, keeping him away from the campus or out of town. But I do
not think you can lock him
up--unless you are willing to lock up Gordon Liddy, half the NRA board,
hundreds of talk radio hosts and thousands of other Usenet posters as
well. And that would still only be the tip of the iceberg.
There is one other set of issues here. Baker named a classmate in his
story. Since then, the world has protected her by calling her Jane Doe.
Professor Mackinnon, who counselled her, has talked to the world about
the Baker case, but Jane Doe herself, as far as I know, has never
spoken. With all respect to her right and desire to remain private, this
again permits, even encourages, the curious phenomenon that the
perpetrator is real but his victim is not. Anyone who has read the now
widely distributed version of the story (with Ms. Doe's real name edited
out) knows everything about Ms. Doe's appearance, and how Baker would
expect her to react if tortured with a curling iron, and
nothing about Ms. Doe. Her silence allows the very phenomenon that
Mackinnon has identified and rails against in her writings (see Only
Words , 1995): women are perceived an inferior class, objects who
cooperate passively in the violence against them. Only by refusing to
take refuge in silence and anonymity, by declaring their own reality and
forcing the world to perceive them as people, do the victims of sexual
violence refuse to be victims or to be perceived (as Mackinnon would put
it) as sex and nothing else.