UNITED STATES of America, Plaintiff,
Jake BAKER and Arthur Gonda, Defendants.
United States District Court, E.D. Michigan, Southern Division.June 21, 1995.
COHN, District Judge.
"It is not the policy of the law to punish those unsuccessful threats
which it is not presumed would terrify ordinary persons
excessively; and there is so much opportunity for magnifying or misunderstanding undefined menaces that probably as much
mischief would be caused by letting them be prosecuted as by refraining from it." The People v. B.F. Jones, 62 Mich. 304, 28
N.W. 839 (1886).
This is a criminal prosecution under 18 U.S.C. § 875(c).
Defendant Jake Baker (Baker) is charged . . . with five counts of
transmitting threats to injure or kidnap another, in electronic mail (e-mail) messages transmitted via the Internet. [FN1] Now
before the Court is Baker's motion to quash the superseding indictment. For the reasons that follow, the motion will be granted.
FN1. 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. . . 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. A survey of Internet use conducted in October, 1994
counted 13.5 million consumer Internet users, and 27.5 million e-mail users. 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.
The e-mail messages that form the basis of the charges in this case
were exchanged in December, 1994 between Baker in Ann
Arbor, Michigan, and defendant Arthur Gonda (Gonda), who sent and received e-mail through a computer in Ontario, Canada.
. . They all express a sexual interest in violence against women and girls.
The complaint is based on an FBI agent's affidavit which cited language
taken from a story Baker posted to an Internet
newsgroup entitled "alt.sex.stories," and from e-mail messages he sent to Gonda. The story graphically described the torture,
rape, and murder of a woman who was given the name of a classmate of Baker's at the University of Michigan. The
"alt.sex.stories" newsgroup to which Baker's story was posted is an electronic bulletin board, the contents of which are publicly
available via the Internet. Much of the attention this case garnered centered on Baker's use of a real student's name in the
. . . Baker has filed a motion seeking dismissal. . . He contends that
application of 18 U.S.C. § 875(c) to the e-mail
transmissions pushes the boundaries of the statute beyond the limits of the First Amendment. The government responds that the
motion must be denied because the First Amendment does not protect "true threats," and because whether a specific
communication constitutes a true threat is a question for the jury.
IV. The Communications
Count I charges Baker and Gonda with transmitting a threat to injure,
and quotes from three e-mail messages. In the first
message quoted, dated December 1, 1994, Baker responds to a message he had received from Gonda:
I highly agree with the type of woman you like to hurt. You seem
to have the same tastes I have. When you come
down, this'll be fun! Also, I've been thinking. I want to do it to a really young girl first. !3 or 14. [FN20] There
innocence makes them so much more fun -- and they'll be easier to control. What do you think? I haven't read
your entire mail yet. I've saved it to read later, in private. I'll try to write another short phantasy and send it. If
not tomorrow, maybe by Monday. No promises.
FN20. The typographic, spelling, and
grammatical errors in this and the following quotations are reproduced
On December 2, Gonda responded:
I would love to do a 13 or 14 year old. I think you are right
... not only their innocence but their young bodies would
really be fun to hurt. As far as being easier to control ... you may be right, however you can control any bitch with
rope and a gag ... once tey are tieed up and struggling we could do anything we want to them ... to any girl. The
trick is to be very careful in planning. I will keep my eye out for young girls, and relish the fantasy ... BTW [FN21]
how about your neighbour at home, youm may get a chance to see her ...? ...?
FN21. "BTW" is shorthand for "by the way."
The same day, Baker responded:
True. But young girls still turn me on more. Likely to be
nice and tight. Oh. they'd scream nicely too! Yeah. I
didn't see her last time I was home. She might have moved. But she'd be a great catch. She's real pretty. with
nice long legs. and a great girly face ... I'd love to make her cry ...
The bill of particulars identifies the targets of these statements as:
13 or 14- year old girls who reside in Defendant Jake Baker's
neighborhood in Ann Arbor, Michigan, and teenage girls who reside in Defendant Jake Baker's neighborhood in Boardman,
This Count falls short of the constitutional "true threat" requirement.
As an initial matter, it does not refer to a
sufficiently specific class of targets. The more limited class identified in the bill of particulars is not apparent from the face of the
communications. Nothing in the exchange quoted implicitly or explicitly refers to 13 or 14 year old girls in Ann Arbor, nothing
in the exchange identifies Boardman, Ohio (Baker's actual home) as the "home" referred to, and nothing in the exchange allows
one to determine that the neighbor discussed is a teen-age girl. In reality, the only class of people to whom the messages can
be taken to refer is 13 or 14 year old girls, anywhere. This class is too indeterminate to satisfy the requirement of specificity as
to the person threatened, even under the liberal interpretation given the requirement by some courts.
As to the content of the messages, Baker's discussing his "tastes"
in the first paragraph of his December 1 message does not
involve any identifiable threatened action. In the second paragraph of the December 1 message, he expresses a desire "to do it
to" a 13 or 14 year old girl. Even assuming that more context would clarify the phrase "to do it to," the second paragraph also
fails to mention an intention to do anything. Rather, it seeks Gonda's reaction to Baker's desire, asking: "What do you think?"
Discussion of desires, alone, is not tantamount to threatening to act on those desires. Absent such a threat to act, a statement is
protected by the First Amendment.
As to Baker's message of December 2, the first paragraph again discusses
a predilection toward "young girls," and what it
would be like, presumably, "to do it to" "young girls." It does not mention any intention to act in accordance with the expressed
predilection. The second paragraph responds to Gonda's question about a neighbor "at home." It says "she'd be a great
catch," but expresses no intention to "catch" her, and indicates a desire to "make her cry," but, again, expresses no intention to
take any action in accordance with that desire. It is not constitutionally permissible to infer an intention to act on a desire from a
simple expression of the desire. The intention (whether or not actually held) must itself be expressed in the statement. Count I
fails to meet this standard, and must be dismissed.
Counts II and III are based on the same statement made by Baker in an
e-mail message dated December 9, 1994, and charge
Baker with making a threat to kidnap and a threat to injure, respectively. The statement for which Baker is charged in the two
I just picked up Bllod Lust and have started to read it. I'll
look for "Final Truth" tomorrow (payday). One of the
things I've started doing is going back and re-reading earlier messages of yours. Each time I do. they turn me on
more and more. I can't wait to see you in person. I've been trying to think of secluded spots. but my knowledge of
Ann Arbor is mostly limited to the campus. I don't want any blood in my room, though I have come upon an
excellent method to abduct a bitch --
As I said before, my room is right across from the girl's bathroom.
Wiat until late at night. grab her when she goes
to unlock the dorr. Knock her unconscious. and put her into one of those portable lockers (forget the word for it).
or even a duffle bag. Then hurry her out to the car and take her away ... What do you think?
The bill of particulars identifies the target of the statement as:
"Female college students who lived in Defendant Jake Baker's
dormitory at the University of Michigan in Ann Arbor, Michigan." Apart from concerns about equating Baker's online persona
with his real person, the class of would-be targets here is identified with sufficient specificity.
Presumably, the government offers this statement as a threat to carry
out the "method to abduct" it describes. Under Kelner,
discussion of a method of kidnapping or injuring a person is not punishable unless the statement includes an unequivocal and
specific expression of intention immediately to carry out the actions discussed. Baker's e-mail message cannot reasonably be
read as satisfying this standard. The language with which Baker is charged here lacks any expression of an intention to act, and
concludes with a request for Gonda's reaction: "What do you think?" Discussing the commission of a crime is not tantamount
to declaring an intention to commit the crime. To find an expression of unequivocal intention in this language would require the
drawing of an inference not grounded in any specific language of the statement and would exceed the bounds of the First
Amendment. Counts II and III must be dismissed.
Count IV charges Baker and Gonda with transmitting a threat to injure.
The Count is based on a message from Gonda to
Baker, and Baker's response. Both e-mail messages are dated December 10, 1994. Gonda wrote:
Hi Jake. I have been out tonight and I can tell you that I am
thinking more and more about 'doing' a girl. I can
picture it so well ... and I can think of no better use for their flesh. I HAVE to make a bitch suffer!
As far as the Teale-homolka killings, well I can think of no tastier
crimes ... BTW have you seen any pictures of the
girls? You have to see these cunts! They must have been so much fun ... please let me know any details that I
cannot get here. I would love to see what you think about it.... As far as the asian bitch story, there is only one
Are tastes are so similar. it scares me : -) When I lay
down at night. all I think of before I sleep is how I'd torture
a bitch I get my hands on. I have some pretty vivid near dreams too. I wish I could remember them when I get up.
The bill of particulars identifies the target of these statements as:
Women who were the subject of Defendant Jake Baker's
E-mail transmissions and Internet postings, including - but not limited to - Jane Doe, whose true name is known to Defendant
Jake Baker and this Honorable Court.
This Count presents the weakest of all the government's charges against
Baker. While the government identifies the class of
targets here as women Baker discussed on the Internet, there is nothing in the language quoted here to so limit the class. In
addition, since Baker's e-mail often refers simply to "a girl," a class composed of women Baker discussed in his e mail and
stories essentially is a class composed of any woman or girl about whom Baker has ever thought. Such a class is obviously not
With regard to the content of Baker's communication, Baker's statement
here consists only of an expression of his thoughts
before sleeping and of "near dreams" he cannot remember upon waking. To infer an intention to act upon the thoughts and
dreams from this language would stray far beyond the bounds of the First Amendment, and would amount to punishing Baker
for his thoughts and desires. Count IV must be dismissed.
Count V charges Baker and Gonda with transmitting a threat to
injure. It is based on an exchange between Gonda and Baker
on December 11-12, 1994. On December 11, Gonda wrote to Baker:
It's always a pleasure hearing back from you ... I had a great orgasm
today thinking of how you and I would torture
this very very petite and cute south american girl in one of my classes ... BTW speaking of torture, I have got this
great full length picture of the Mahaffy girl Paul Bernardo killed, she is wearing this short skirt!
The same day, Baker responded:
Just thinking about it anymore doesn't do the trick ... I need TO DO IT.
The next day, Gonda wrote:
My feelings exactly! We have to get together ... I will give you more details as soon as I find out my situation ...
Alrighty then. If not next week. or in January.
then definatly sometime in the Summer. Pickings are better then
too. Although it's more crowded.
The bill of particulars identifies the target of these statements, as
in Count IV, as: Women who were the subject of Defendant
Jake Baker's E-mail transmissions and Internet postings, including - but not limited to - Jane Doe, whose true name is known to
Defendant Jake Baker and this Honorable Court.
This Count, too, fails to meet the constitutional "true threat" standard.
The class of potential targets, as discussed with
regard to Count IV, is far too vague. As to the content of the communications, Baker indicates his "need TO DO IT." Like his
earlier statements, this language indicates a desire to do something. While use of the word "need" indicates a strong desire, it
still falls short "unequivocal, unconditional and specific expression of intention immediately to inflict injury"; "needs" go unmet
everyday. Baker next indicates, at most, an intention to meet Gonda at some indefinite point in the future - in the next week,
month, or several months later. This statement does not express an unequivocal intention immediately to do anything. Also,
nothing in the language on which the Count is based indicates any intention to commit specific acts if Baker and Gonda ever
were to meet. Like the preceding four Counts, Count V fails to state a charge under § 875(c) that can survive a First
Amendment challenge, and must be dismissed. This prosecution presents the rare case in which, in the government's words,
"the language set forth ... is so facially insufficient that it cannot possibly amount to a true threat."
This case in its initial stage generated a good deal of public
interest. Now that the case will be concluded by an order rather
than by a jury verdict, it is important to assure the public that such a conclusion is not by fiat. All of this evidence, viewed in the
light most favorable to the prosecution, leads to one inevitable conclusion: based on the applicable rules of law there is no case
for a jury because the factual proof is insufficient as a matter of law. The government's enthusiastic beginning petered out to a
salvage effort once it recognized that the communication which so much alarmed the University of Michigan officials was only a
rather savage and tasteless piece of fiction. Why the government became involved in the matter is not really explained in the
Baker is being prosecuted under 18 U.S.C. § 875(c) for his use
of words, implicating fundamental First Amendment concerns.
Baker's words were transmitted by means of the Internet, a relatively new communications medium that is itself currently the
subject of much media attention. The Internet makes it possible with unprecedented ease to achieve world-wide distribution of
material, like Baker's story, posted to its public areas. When used in such a fashion, the Internet may be likened to a
newspaper with unlimited distribution and no locatable printing press - and with no supervising editorial control. But Baker's
e-mail messages, on which the superseding indictment is based, were not publicly published but privately sent to Gonda. While
new technology such as the Internet may complicate analysis and may sometimes require new or modified laws, it does not in
this instance qualitatively change the analysis under the statute or under the First Amendment. Whatever Baker's faults, and he
is to be faulted, he did not violate 18 U.S.C. § 875(c). The case would have been better handled as a disciplinary matter, as
the University of Victoria proceeded in a similar situation, despite whatever difficulties inhere in such a course. What the Court
said at the conclusion of oral argument bears repeating: "[T]he Court is very skeptical, and about the best thing the
government's got going for it at this moment is the sincerity of purpose exhibited by [the Assistant United States Attorneys
prosecuting the case]. I am not sure that sincerity of purpose is either synonymous with a good case under the law, or even the
exercise of good judgment."