MistressDREAD
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In the superseding indictment, the Grand Jury returned five counts that this series of e-mails[99] contained both the required actus reus (sending a communication via interstate commerce) and mens rea (the general intent to communicate that threat) sufficient to satisfy Section 875(c).[100] In a thorough opinion the lower court affirmed that this was a general intent crime[101] but nonetheless found that, “intent must be proved by, ‘objectively looking at the defendant's behavior in the totality of the circumstances.’”[102] The court then concluded that it must interpret the e-mails “in the light of foreseeable recipients of the communication”[103] – Gonda – and also that the “class” of person(s) threatened must be sufficiently particular and create an “imminent” danger to satisfy constitutional inquiry.[104] In coming to the conclusion as a matter of law in dismissing the indictment, the lower court found that, “Baker’s e-mail message cannot reasonably be read as satisfying [these] standard.”[105]
In a two-one split, the Appellate Court affirmed reviewing de novo[106] that the indictment failed as a matter of law to plead the second element of Section 875(c) outlined in the prior case, United States v. DeAndino.[107] The Alkhabez Court stated, that the “electronic mail messages between defendant and another, expressing sexual interest in violence against women and girls, did not constitute ‘communications containing a threat’”[108] under the statute, and thusly, declined to address any First Amendment issues raised.[109] The court then held, that in order to satisfy the second element from DeAndino to constitute a “threat” under the statute:
[a] communication must be such that a reasonable person (1) would take the statement as a serious expression of an intention to inflict bodily injury (the mens rea), and (2) would perceive such expression as being communicated to effect some change or achieve some goal through intimidation (the actus reus).[110]
The dissent, however, argued that this “materially alter[ed] the plain language and purpose of that section.”[111] It stated that the court had enhanced the burden of proof placed on the government in its prosecutions under the statute,[112] and “judicially legislat[ed] an exogenous element into Section 875(c).”[113] In adopting the definition of “threat” from Black’s Law Dictionary,[114] the dissent asserted that a “whenever a rational jury could find that an objective recipient of the communication would, under similar circumstances, reasonably tend to believe the speaker’s menacing words”[115] it satisfies the required elements of 875(c).[116] After addressing 875(c), the dissent turned to the Constitutional question. In contrasting United States v. Watts, the dissent argued that the lower court wrongfully dismissed the indictment on First Amendment grounds because so long as the threat against private individuals is “credible” it is devoid of constitutional protection.[117]
So, were Baker’s electronic communications protected speech or were they the exact type of electronic threat that will be the crime of the 21st century?[118] What the Baker case highlights is that the prosecutor must overcome a variety of hurdles to meet the burden placed on them – the statutory actus reus and mens rea, the constitutional requirement of a true threat, and any courtroom strategy or evidentiary problems – and the courts have at times been unclear as to what satisfies any of that burden.
II. Statutory underpinnings of electronic harassment, cyberstalking and threats
Prosecutors and courts will initially use a variety of statutes to combat electronic harassment and threats. Notwithstanding any Constitutional restrictions on state actions, “federal statutes are to be construed so as to avoid serious doubts as to their constitutionality, and … when faced with such doubts the Court will first determine whether it is fairly possible to interpret the statute in a manner that renders it constitutionally valid.”[119]
At the federal level there are two primary statutes to examine: (A) 18 U.S.C. § 875 – Interstate Communications,[120] and (B) 47 U.S.C. § 223 – The Communications Decency Act of 1996 (CDA) – Obscene or Harassing Telephone Calls in the District of Columbia or in Interstate or Foreign Communications.[121] Additionally, whenever e-threats or e-harassment include references to fire, arson, or bombs, as was the case in the Baker story, [122] other crimes may independently be chargeable.[123]
In addition to these federal statutes, there are an increasingly important number of state statutes. Although some statutes have been specifically written to combat e-harassment and e-threats,[124] others include current and modified state telephonic harassment,[125] general harassment,[126] and sexual harassment statutes.[127]
A) Interstate Communications: 18 U.S.C. § 875(c)
Until states adopt new electronic threat, stalking, and harassment laws, prosecutors will continue to fill the void to ensure uniformity with this federal statute. The relevant text of 875(c) states that, “Whoever 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.”[128] (Emphasis added).
Today, the standard test to prosecute under 875(c) requires three elements as laid out by the court in United States v. DeAndino:[129] “(1) a transmission in interstate commerce; (2) a communication containing a threat; and (3) the threat must be a threat to injure the person of another.”[130] Although this section is contained in Chapter 41 – Extortion and Threats, and one of Baker’s e-mails alluded to abduction,[131] intent to kidnap or extort is not necessary to prosecute interstate threats. [132] While at one time the law was applied almost exclusively to instances of extortion stemming from its enactment in 1932, [133] the scope of 875(c) has been broadened by the courts to apply to many people who merely make threats via modes of interstate commerce, as in the Baker case.[134] Nevertheless, the simplicity of the statute is deceptive. Issues of whether a person’s speech is a “threat” [135] and the standard of intent necessary to satisfy the statute have confused and divided the circuits.[136]
(1) The Actus Reus:
The starting point of any criminal law analysis is with the criminal act or actus reus.[137] To meet the first prong of 875(c), the actus reus, one need only send the communicated intent vis-à-vis “interstate commerce.”[138] Recently, United States v. Kammersell[139] found that e-mail and electronic communications could be regulated under the interstate commerce clause. After examining the prior case of United States v. Lopez,[140] the Kammersell court affirmed the lower court and stated that an alleged threatening e-mail sent via the internet satisfied the actus reus requirement of 875(c).[141]
In Kammersell, a Utah defendant sent an instant message while on America Online (AOL) to a Utah recipient. Technically, the message traveled from the defendant’s location in Utah to AOL’s headquarters in Virginia and back again to its victim in Utah.[142] The court held that, “(1) the term, ‘transmits in interstate commerce,’ as it applied to [the] offense of making threatening communication, encompassed alleged conduct of sending threatening message via the Internet, and (2) [the] offense of making threatening communication in interstate commerce was within the authority of Congress under the [Interstate] Commerce Clause.”[143] However, the court did note one point of caution and conceded that a “different server may have a different transmission system not involving interstate transmission.”[144] For instance, if this case occurred in Virginia, and not Utah, the prosecutor would need to argue that even entirely intra-state e-communications can be regulated under the Interstate Commerce Clause[145] because the base server (AOL) is governed by the Interstate Commerce Clause in the same way that the Interstate Commerce Clause governs traditional telephone communications. As a result, current electronic use of telephone lines, cable lines, fiber optics, T1 or other dedicated lines, or satellites should all readily satisfy the first element of 875(c).
(2) The Threat:
Once the first element of interstate communication is established, the next step in the analysis is the statutory definition of a “threat.” What makes any conventional discussion of the actus reus and a “threat” more confusing than it should be is that both counsel and the courts do not always clearly distinguish between the statutory requirements and the constitutional requirements of a true threat. Simply, the statutory elements become confused with the constitutional requirements of a “true threat.”[146] As the constitutional threat doctrine will be discussed later, this statutory section on the “threat” is unfortunately intertwined with it. On one hand, the court could interpret the statutory “threat” in the narrow way that the Alkhabez court did. On the other hand, from a plain language interpretation of the statute, the dissent in Alkhabez readily argued that the words of 875(c) are “simple, clear, concise, and unambiguous”[147] such that, “ANY communication containing ANY threat to kidnap ANY person or ANY threat to injure the person of another”[148] would meet the threat requirement.[149] Thus, so long as there is a credible threat from an objective standard – determined by the jury – there is a statutory “threat.”
In coming up with its “interpretation” of the word “threat” beyond its common or plain usage as required,[150] the Alkhabez majority said that Congress itself used the word to create limitations on the applicability of the statute.[151] However, in light of both the majority and dissenting analyses, it is clear that the scope of the statutory term “threat” is limited only to that defined by the Constitution. In other words, if two circles represented the breadth of the “threat” doctrine, one for the statute and another for the constitution, the two circles will necessarily be concentric – the statute’s scope of what constitutes a threat being restricted by definition to that which can be prosecuted as a threat under the Constitution.[152] As a result, the analytical focus should rest on whether the mens rea of 875(c) and constitutional safeguards are met.
(3) The Mens Rea:
The third step in analyzing 875(c) is defining the level of culpability or mens rea proscribed by statute. Unfortunately, analyzing the mens rea of 875(c) has also created confusion and a split in circuits.[153] Because “e-mail transmissions are quickly becoming a substitute for telephonic and printed communications, as well as a substitute for direct oral communications,”[154] what constitutes a punishable message should remain consistent regardless of the medium. This is exactly the policy that 875(c) is meant to address. Here, the statutory language of 875(c) does not contain any reference to a specific intent to threaten. Generally, “when a statute does not contain any reference to intent, general intent is implied.”[155] As a result, electronic threats should be as easily prosecutable in the future as telephonic or printed threats.
The majority of circuits that have addressed the issue,[156] including the First,[157] Second,[158] Third,[159] Fourth,[160] Fifth,[161] Sixth, [162] and Tenth Circuits[163] have forcefully agreed and determined that 875(c) is a general intent crime. This means that the intent element only applies to sending the communication, not the nature of the communication and the threat element.[164] It also means that the interpretation of 875(c) is consistent with the policy of 875(c).
One way to accurately balance the Framers’ intent with the legislative intent in 875(c) and other similar statutes[165] was clearly explained in United States v. Fulmer.[166] In addressing the conflicting standards used in defining a “threat” with the mens rea of 875(c), the Whiffen Court said that “[Fulmer] set forth a clear rule that a statement constitutes a threat if the speaker reasonably should have foreseen that it would be understood as a threat by those whom it was directed.”[167] This objective standard solves the problems worried by the minority circuits,[168] discussed below, even though it does import a “subjective, hearer-based qualification into the objective, speaker-based standard.”[169] In other words, if a reasonable recipient would perceive the communication’s content as being a threat, then the mens rea of 875(c) is satisfied.[170] Nonetheless, even the Fulmer Court concluded that “whether a given statement constitutes a threat is an issue of fact for the trial jury.”[171] Accordingly, the majority of circuits have interpreted the general intent element of 875(c) as only requiring an objective standard and not an inquiry into the defendant’s subjective motivations to convict.
The Ninth Circuit, however, announced in United States v. Twine[172] its determination that more than “a mere transgression of an objective standard of acceptable behavior (e.g., negligence, recklessness)” is required to satisfy the mens rea element of 875(c).[173] Instead, the court concluded that a defendant must knowingly transmit a threat; that is, the prosecutor must prove beyond a reasonable doubt that the defendant knew what he was sending was a threatening communication. Because this result stands at odds with both the majority of circuits and the policy reasons behind 875(c), it is important to understand how Twine came to its conclusion.
In Twine, [174] a defendant faced with charges of both 875(c) and 876 attempted to use the defense of diminished capacity.[175] Initially the court recognized that although both statutes were enacted concurrently, they were not written identically.[176] Section 876 contains the word “knowingly” while Section 875(c) is silent on any description of the mens rea.[177] The Twine Court came to this assessment after examining the two cases of Seeber v. United States[178] and Roy v. United States.[179] However, the court’s reasoning of both Seeber and Roy is contrary to the plain language used in the respective underlying statutes and the Ninth Circuit’s own precedent. From here, a detailed look at these cases demonstrates why the Twine Court’s conclusion is at best confused, if not entirely at a discord with the remaining circuits.
First, in Seeber a defendant convicted under 875(c) appealed a jury instruction that used the word “knowingly.”[180] Although the court said, “875 … did not define a strict liability offense,”[181] the court rationalized the inclusion of “knowingly” in the jury instruction “to insure that no one would be convicted for an act because of mistake or inadvertence, or other innocent reason.”[182] The court then stated that “875(c) … define specific intent crimes.”[183] However, this conclusion is only rational if the court includes “knowingly” as part of the statutory requirement – not merely part of a jury instruction as was the case in Seeber. What the Twine court does not spell out is why it then cites the case of United States v. Sirhan[184] for the proposition that the requirement of a specific intent applied just to “knowingly transmitted the communication.”[185] This presents two rational interpretations of Seeber and its applicability to Twine – both being contrary to Twine’s conclusion.
The first interpretation suggests that the word “knowingly” modifies only the portion of the statute dealing with the transmission of the communication as opposed to the nature of the threat, in which case a jury must separately decide if a threat is contained within communication. In the second interpretation, the court makes a jump in logic by restricting the statute’s mens rea to a higher level of scrutiny because of the inclusion of the word “knowingly” in a jury instruction. However, it does not follow that of the statute is henceforth subject to strict scrutiny because “mistake, inadvertence, or other innocent reason,” as the court stated, “implied” negligence or recklessness. [186] This is because a mistake or innocent reason can similarly imply either negligence or recklessness.[187] Despite the conclusion drawn, it is very difficult to make sense of the court’s reasoning.
In interpreting Seeber, the Twine Court also attempted to distinguish itself from its prior case of United States v. LeVision[188] where the court explicitly said that 876 is a “general intent” statute.[189] The court un-persuasively claims that this “rather refers to an intent generally to threaten as opposed to an intent to threaten coupled with an intent to extort money.”[190] If this is the case, then the court is now only admitting that LeVision’s interpretation requires only a general intent to threaten. If this is the extent of distinguishing the two cases, Twine appears to come to the conclusion that, absent an intent to extort, only a general intent is required under 875(c) – but this contradicts the court’s earlier statement under Sirhan that transmitting a threat was a specific intent crime. At best, Twine’s rationale for the requiring the higher mens rea of a specific intent is ambiguous and confuses 875(c) with 876.[191]
Second, the Roy case relied on the intent requirements of 871, not 875(c) or its sister equal 876.[192] Although the Roy court held that 871 required only a general intent,[193] Twine reasoned that the distinction was a factual one based on who the target was – the President or a private citizen – because a threat to the President more harmful than a threat to a citizen justified a lesser culpability requirement.[194] While this reasoning is rational, unlike the court’s interpretation of “knowingly” in a general intent manner as it did in Seeber, the Twine court now says that “knowingly and willfully” – now contained in the statute as opposed to merely a jury instruction – means that 871 is a general intent statute while 875(c) which does not include any mens rea requirement is a specific intent crime.[195] Depending on the time period, and this factual assessment, the same words and threat, sent to two people should make a legal difference – as the courts in no other jurisdiction have recognized this as a legal distinction. Indeed, as stated, every other circuit that has interpreted the mens rea element of 875(c) has rejected the reasoning of the Ninth Circuit.[196]
In this respect, my interpretation of Twine can be read as consistent with the majority of the circuit courts. The likely accuracy of this interpretation is consistent with the sister statute of 876 which also suggests that merely because the medium changes, from one of U.S. Mail to electronic mail, that the general intent requirement of 876 should not be mutated into a specific intent requirement. Yet, this was precisely what the Alkhabez court required merely in order to force compliance with the language in 875(c).[197]
Thus, in light of the analysis by the majority of circuits and the internal dissection of Twine, it is unclear why the Sixth Circuit chose to alter course from other Circuits or even its own former analysis in requiring the added element of intent that one must have a special intent to intimidate. Consequently, this impinges on the plain meaning of the statutory definition of “threat.”[198] As such, any circuit that has not addressed the mens rea of 875(c)[199] should consider Fulmer in light of the medium, but more so the message, and be willing to allow a jury to ultimately determine whether a criminal threat or harassment existed.[200] However, with numerous cases discussing 875, its recent application in the first two Internet and electronic communication cases (Kammersell & Baker) will only be the beginning.[201]
B) Communications Decency Act: 47 U.S.C. §§ 223, 233 [202]
When the Communications Decency Act (CDA) was passed in 1996, some heralded it as a long awaited policeman and father-figure for the Internet. However, since its inception the CDA has faced a series of constitutional challenges on the scope of what Congress believed was appropriate for the Internet and other electronic communications.[203] Following a stay pending the decision in ACLU v. RENO,[204] in April 1999, the Supreme Court affirmed CDA – 47 U.S.C. § 223 – in ApolloMedia Corp. v. Reno without opinion.[205] The statute states that:
Whoever—(1) in interstate or foreign communications—(A) by means of a telecommunications device knowingly—(i) makes, creates, or solicits, and (ii) initiates the transmission of, any comment, request, suggestion, proposal, image, or other communication which is obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person [shall be guilty].[206]
(Emphasis added). In a declaratory action challenging the constitutionality of the CDA, the court in ApolloMedia was pressed with the issue whether the CDA’s prohibition of merely “‘indecent’ communications made ‘with an intent to annoy,’ was both impermissibly overbroad and vague, therefore violating the First Amendment.”[207]
In a 2-1panel decision ApolloMedia held that the challenged provisions and string list of “obscene, lewd, lascivious, filthy, or indecent”[208] communications all referred only to obscenity; therefore, the CDA did not violate the First Amendment.[209] According to the court, the extra words in the statute are merely synonymous with “obscenity.” The court accepted that the string of words used to identify only obscene communications was “settled” under cases beginning with United States v. Roth.[210] Had the government argued otherwise, it would have risked having the words stricken or perhaps even the CDA declared wholly unconstitutional.[211] On the other hand, ApolloMedia argued in the likeness of FCC v. Pacifica[212] that the words bore individual meanings.[213] After examining the legislative history, the court adopted the government’s position.[214] Simply, the CDA took what was already unprotected speech – obscenity [215] – and merely reinforced the standard if such material was transmitted with intent to annoy another person.[216]
The constitutionality of the CDA was again addressed in United States v. Lampley.[217] In Lampley, the court upheld the statute’s constitutionality stating that not all speech enjoys the protection of the First Amendment and that Congress has a compelling interest in protecting innocent individuals from “fear, abuse, and annoyance.”[218]
As a result, when ACLU is analyzed along with Lampley and ApolloMedia, it will be difficult to read the CDA’s true police power of the Internet as substantive enough to cover anything but obscene messages – an unnecessary redundancy. Thus, although at first blush it appears that Baker would have been subject to penalty under the CDA for his obscene communications under any contemporary community standards, and most other senders of e-mail threats would not be subject to penalty under the CDA, the legislative history by the primary author of the CDA casts doubt even on this basic assumption.[219]
Nevertheless, notwithstanding the CDA’s substantive limitations to transmissions of obscenity, the form and clarity of the language used in the CDA is instructive and perhaps better than the language used in 875(c). For instance, 223(1)(A) clearly states that “knowingly” applies to (i) the creation of a communication and (ii) its transmission. Only then does the CDA list – with a separating clause “which is” – a substantive listing of the content of the communication, including being “obscene, lewd, lascivious, filthy, or indecent, with intent to annoy, abuse, threaten, or harass another person.”[220] On the other hand, one area that the CDA’s form could improve on is its replacement or supplement of “telecommunications device”[221] with “any instrument used in interstate or foreign commerce.”[222] This approach would more accurately reflect future nontelephonic or other unpredictable changes in technological improvements without, as we are pushing the envelope here, forcing an old statute to conform to a new medium.
But what will the consequences be of the ApolloMedia decision and the underlying comparison with the older Section 875? Ultimately, how First Amendment cyber-rights are decided will determine the constitutional, legal, and normative scope of the most powerful medium of the twentieth century.
C) A Survey of Other Federal Statutes:
A variety of models and statutes, when describing criminal conduct, include components that apply to electronically communicated threats or harassment.[223] With an upswing in media attention toward more severe school and workplace shootings, bomb threats, and a generalized fear of terrorism,[224] prosecutors are and should be routinely examining once narrowly classed statutes.[225]
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