[What is Pornography?] [Is Pornography Speech?] [Violent Repercussions of Pornography] [A Rapist's Perspective] [The Civil Rights Approach] [The Baker Case Study] [Discussion Questions]
In this module we will first explore the traditional debate surrounding the regulation of pornographic materials -- looking both to the social constructs supporting and resulting from the creation and consumption of pornography and also to possible legal paradigms for regulation. We will then analyze the same problem in a new context -- the context of pornography and violence against women on the internet.
Note: We realize there are many differing views on pornography and its regulation. In this module, however, we are focusing on pornography and violence against women. Therefore, we concentrate on violent pornography and its affects.
It has often been commented that "one of the greatest debates about pornography is the question of how to distinguish pornography from erotica." Here, in an article first printed in Ms. magazine, and then in the Take Back the Night: Women on Pornography collection of essays, Gloria Steinem provides a "practical test" for making the distinction between the two.
Erotica and Pronography: A Clear and Present Difference, by Gloria Steinem
"[E]rotica" is rooted in "eros" or passionate love, and thus in the idea of positive choice, free will, the yearning for a particular person. (Interestingly, the definition of erotica leaves open the question of gender.) "Pornography" begins with a root "porno," meaning "prostitution" or "female captives," thus letting us know that the subject is not mutual love, or love at all, but domination and violence against women. (Though, of course, homosexual pornography may imitate this violence by putting a man in the "feminine" role of victim.) It ends with a root "graphos," meaning "writing about" or "description of," which puts still more distance between subject and object, and replaces a spontaneous yearning for closeness with objectification and voyeurism. The difference is clear in the words. It becomes even more so by example.
Look at any photo of film of people making love; really making love. The images may be diverse, but there is usually a sensuality and touch and warmth, an acceptance of bodies and nerve endings. There is always a spontaneous sense of people who are there because they want to be, out of shared pleasure.
Now look at any depiction of sex in which there is clear force, or an unequal power that spells coercion. It may be very blatant, with weapons of torture or bondage, wounds and bruises, some clear humiliation, or an adult’s sexual power being used over a child. It may be much more subtle: a physical attitude of conqueror and victim, the use of race or class difference to imply the same thing, perhaps a very unequal nudity, with one person exposed and vulnerable while the other is closed. In either case, there is no sense of equal choice or equal power.
The first is erotic: a mutually pleasurable, sexual expression between people who have enough power to be there by positive choice. It may or may not strike a sense-memory in the viewer, or be creative enough to make the unknown seem real; but it doesn’t require us to identify with a conqueror or a victim. It is truly sensuous, and may give us a contagion of pleasure.
The second is pornographic: its message is violence, dominance, and conquest. It is sex being used to reinforce some inequality, or to create one, or to tell us that pain and humiliation (ours or someone else’s) are really the same as pleasure. If we are to feel anything, we must identify with conqueror or victim. That means we can only experience pleasure through the adoption of some degree of sadism or masochism. It also means that we may feel diminished by the role of conqueror, or enraged, humiliated, and vengeful by sharing identity with the victim.
. . . While the sexual objectification or women is common to all pornography, women are the recipients of even worse treatment in violent pornography, in which women characters are killed, tortured, gang-raped, mutilated, bound, and otherwise abused, as a means of providing sexual stimulation or pleasure to the male characters.
Following this distinction, the topic of discussion in this module will focus on pornography as described by the Report of the Attorney General's Commission on Pornography:
Report of the Attorney General’s Commission on Pornography
The category of material on which most of the evidence has focused is the category of material featuring actual or unmistakably simulated or unmistakably threatened violence presented in sexually explicit fashion with a predominant focus on the sexually explicit violence. Increasingly, the most prevalent forms of pornography, as well as an increasingly prevalent body of less sexually explicit material, fit this description. Some of this material involves sadomasoschistic themes, with the standard accoutrements of the genre, including whips, chains, devices of torture, and so on. But another theme of some of this material is not sado-masochistic, but involves instead the recurrent theme of a man making some sort of sexual advance to a woman, being rebuffed, and then raping the woman or in some other way violently forcing himself on the woman. In almost all of this material, whether in magazine or motion picture form, the woman eventually becomes aroused and ecstatic about the initially forced sexual activity, and usually is portrayed as begging for more. There is also a large body of material, more “mainstream” in its availability, that portrays sexual activity or sexually suggestive nudity coupled with extreme violence, such as disfigurement or murder. The so-called “slasher” films fit this description, as does some material, both in films and in magazines, that is less or more sexually explicit than the prototypical “slasher” film.
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The prototypical pornographic item, upon close analysis, shares more of the characteristics of sexual activity than of the characteristics of the communicative, emotive, or artistic processes. Pornography is, in a real sense, a sexual surrogate. Pornography as action rather than speech is an important distinction to make when considering whether regulation of pornographic materials is allowed by the First Amendment. Consider Frederick Schauer's perspective on this definitional and empirical issue that undergirds much of the pronography debate:
Speech and “Speech” – Obscenity and “Obscenity”: An Exercise in the Interpretation of Constitutional Language, by Frederick Schauer; 67 Geo.L.J. 899, 922-923 (1979).
[Pornography] takes pictorial or linguistic form only because some individuals achieve sexual gratification by those means.
Imagine a person going to a house of prostitution, and, in accord with his or her particular sexual preferences, requesting that two prostitutes engage in sexual activity with each other while he becomes aroused. Having achieved sexual satisfaction in this manner, he pays his money and leaves, never having touched either of the prostitutes. Imagine an individual who asks that a leather-clad prostitute crack a whip within an inch of his ear. Are these free speech cases? Hardly. Despite the fact that eyes and ears are used, these incidents are no more cognitive than any other experience with a prostitute. It is essentially a physical activity, the lack of actual contact notwithstanding.
If the above examples are not free speech cases, is there any real difference between the same activity when presented on film rather than in the flesh? Consider further rubber, plastic, or leather sex aids. It is hard to find any free speech aspects in their sale or use. If pornography is viewed merely as a type of aid to sexual satisfaction, any distinction between pornography and so-called “rubber products” is meaningless. The mere fact that in pornography the stimulating expereince is initiated by visual rather than tactile means is irrelevant if every other aspect of the experience is the same. Neither means constitutes communication in the cognitive sense. Pornography involves neither a communicator nor an object of the communication. The purveyor of the pornography is in the business solely of providing sexual pleasure; it is unrealistic to presume that he is anything but indifferent to the method by which pleasure is provided and profit secured. Similarly, there is no reason to believe that the recipient desires anything other than sexual stimulation. Hardcore pornography, then, is distinguished by its similarity in all relevant respects to a wide range of other sexual experiences.
The point is that the use of pornography may be treated conceptually as a purely physical rather than mental experience. This is of course an oversimplification. Physical sensations, including sexual arousal, have mental elements. Is pain physical or mental? Some of both, surely. The same is true of physical attributes of sexuality. A helpful illustration of this phenomenon is a spectrum, or a range – the intellectual predominates one extreme and the physical predominates the other. At the physical extreme of the spectrum the conduct possesses so few mental attributes that it has none of the characteristics of the intellectual process constituting the core of the constitutional definition of speech.
For more on the First
Amendment issues surrounding pornography, see Andrea Dworkin's Essay Men,
Freedom of Speech; For Women, Silence Please. The essay is a response to
the denouncement of feminists for undermining the First Amendment by speaking
out against pornography.
For more on the First Amendment issues surrounding pornography, see Andrea Dworkin's Essay Men, Freedom of Speech; For Women, Silence Please. The essay is a response to the denouncement of feminists for undermining the First Amendment by speaking out against pornography.
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Not only does pornography itself constitute violence against women, but the consumption of pornography facilitates further acts of violence against women. Consider, for example, the following Report of the Attorney General's Commission on Pornography:
Report of the Attorney General’s Commission on Pornography: Section 5.2.1 Sexually Violent Material
. . . [C]linical and experimental research. . .[has] focused particularly on sexually violent material,[and] the conclusions have been virtually unanimous. In both clinical and experimental settings, exposure to sexually violent materials has indicated an increase in the likelihood of aggression. More specifically, the research, which is described in much detail in the appendix, shows a causal relationship between exposure to material of this type and aggressive behavior towards women.
. . . The assumption that increased aggressive behavior towards women is causally related, for an aggregate population, to increased sexual violence is significantly supported by the clinical evidence, as well as by much of the less scientific evidence. This is not to say that all people with heightened levels of aggression will commit acts of sexual violence. But it is to say that over a sufficiently large number of cases we are confident in asserting that an increase in aggressive behavior directed at women will cause an increase in the level of sexual violence directed at women.
Since the clinical and experimental evidence supports the conclusion that there is a causal relationship between exposure to sexually violent materials and an increase in aggressive behavior directed towards women, and since we believe that an increase in aggressive behavior towards women will in a population increase the incidence of sexual violence in that population, we have reached the conclusion unanimously and confidently, that the available evidence strongly supports the hypothesis that substantial exposure to sexually violent materials as described here bears a causal relationship to antisocial acts of sexual violence and, for some subgroups, possibly to unlawful acts of sexual violence.
Sexual violence is not the only negative effect reported in the research to result from substantial exposure to sexually violent materials. The evidence is also strongly supportive of significant attitudinal changes on the part of those with substantial exposure to violent pornography. These attitudinal changes are numerous. Victims of rape and other forms of sexual violence are likely to be perceived by people so exposed as more responsible for the assault, as having suffered less injury, and as having been less degraded as a result of the experience. Similarly, people with a substantial exposure to violent pornography are likely to see the rapist or other sexual offender as less responsible for the act and as deserving of less stringent punishment.
. . . The evidence also strongly supports the conclusion that substantial exposure to violent sexually explicit material leads to a greater acceptance of the “rape myth” in its broader sense – that women enjoy being coerced into sexual activity, that they enjoy being physically hurt in sexual context, and that as a result a man who forces himself on a woman sexually is in fact merely acceding to the “real” wishes of the woman, regardless of the extent to which she seems to be resisting. . .
We have found a causal relationship between sexually explicit materials featuring violence and these consequences, and thus conclude that the class of such materials, although not necessarily every individual member of that class, is on the whole harmful to society.
Obviously, pornography is "dangerous and effective
propaganda" that incites "violence against easy targets--women and
children." For more on the violent effects of pronography, see Andrea
Dworkin's Essay, Pornography's Part in Sexual Violence.
Obviously, pornography is "dangerous and effective propaganda" that incites "violence against easy targets--women and children." For more on the violent effects of pronography, see Andrea Dworkin's Essay, Pornography's Part in Sexual Violence.
Empirical evidence demonstrates the causal
connection between pornography and violence against women in American society.
A rare insight into the thought process of one rapist, however, provides a
uniquely powerful example of the devastating effects pornography can have
on individual men and women.
Empirical evidence demonstrates the causal connection between pornography and violence against women in American society. A rare insight into the thought process of one rapist, however, provides a uniquely powerful example of the devastating effects pornography can have on individual men and women.
Interview with a Rapist, by Timothy Beneke
. . . I went to a porno bookstore, put a quarter in a slot, and saw this porn movie. It was just a guy coming up from behind a girl and attacking her and raping her. That’s when I started having rape fantasies. When I seen that movie, it was like somebody lit a fuse from my childhood on up. When that fuse got to the porn movie, I exploded. I just went for it, went out and raped. It was like a little voice saying, ‘It’s all right, it’s all right, go ahead and rape and get your revenge, you’ll never get caught. Go out and rip off some girls. It’s all right, they even make movies of it.” The movie was just like a big picture stand with words on it saying go out and do it, everybody’s doin’ it, even the movies. So I just went out that night and started lookin’.
When I first attacked her I wasn’t even turned on; I wanted to dominate her. When I saw her get scared and hurt, then I got turned on. I wanted her to feel like she’d been drug through mud. I wanted her to feel a lot of pain and not enjoy none of it. The more pain she felt, the higher I felt. . . I pulled out of her when I was about to come and I shot in her face and came all over her. It was like I pulled a gun and blew her brains out. That was my fantasy.
Pornographic movies have a lot to do with rape. I believe they shouldn’t make movies of any kind of rape. They just shouldn’t show it. . . You look at these movies and think, “Wow, I wonder what it would be like to go out and rape somebody!” . . . I know five or six guys who saw pictures of rape in a dirty book and believed it was all right to go out and rape; just still snapshots and that justified it to them. It said, okay, go out and rape because it’s in a dirty book; there’s nothin’ wrong with it.
Catharine MacKinnon, who, with Andrea Dworkin,
has been at the forefront of the feminist anti-pornography movement, has created
the civil rights approach at issue in American
Booksellers Ass'n v. Hudnut, Inc. She explains and defends that approach
in the article excerpted here.
Catharine MacKinnon, who, with Andrea Dworkin, has been at the forefront of the feminist anti-pornography movement, has created the civil rights approach at issue in American Booksellers Ass'n v. Hudnut, Inc. She explains and defends that approach in the article excerpted here.
Pornography, Civil Rights and Speech, Catharine MacKinnon
20 Harv.Civ.Rts. – Civ.Lib.L.Rev. 1, 16-21, 24-26, 47-54, 65 (1985).
In pornography, there it is, in one place, all of the abuses that women had to struggle so long even to begin to articulate, all the unspeakable abuse: the rape, the battery, the sexual harassment, the prostitution, and the sexual abuse of children. Only in the pornography it is called something else: sex, sex, sex, sex, and sex, respectively. Pornography sexualizes rape, battery, sexual harassment, prostitution, and child sexual abuse; it thereby celebrates, promotes, authorizes, and legitimizes them. More generally, it eroticizes the dominance and submission that is the dynamic common to them all. It makes hierarchy sexy and calls that "the truth about sex"' or just a mirror of reality. Through this process, pornography constructs what a woman is as what men want from sex. This is what the pornography means. * * *
Pornography constructs what a woman is in terms of its view of what men want sexually, such that acts of rape, battery, sexual harassment, prostitution,and sexual abuse of children become acts of sexual equality. Pornography's world of equality is a harmonious and balanced place. Men and women are perfectly complementary and perfectly bipolar. Women's desire to be fucked by men is equal to men's desire to fuck women. All the ways men love to take and violate women, women love to be taken and violated. The women who most love this are most men's equals, the most liberated; the most participatory child is the most grown-up, the most equal to an adult. Their consent merely expresses or ratifies these preexisting facts.
The content of pornography is one thing. There, women substantively desire dispossession and cruelty. We desperately want to be bound, battered, tortured, humiliated, and killed. Or, to be fair to the soft core, merely taken and used. This is erotic to the male point of view. Subjection itself with self-determination ecstatically relinquished is the content of women's sexual desire and desirability. Women are there to be violated and possessed, men to violate and possess us either on screen or by camera or pen on behalf of the consumer. On a simple descriptive level, the inequality of hierarchy, of which gender is the primary one, seems necessary for the sexual arousal to work. Other added inequalities identify various pornographic genres or sub- themes, although they are always added through gender: age, disability, homosexuality, animals, objects, race (including anti-semitism), and so on. Gender is never irrelevant.
What pornography does goes beyond its content: It eroticizes hierarchy, it sexualizes inequality. It makes dominance and submission sex. Inequality is its central dynamic; the illusion of freedom coming together with the reality of force is central to its working. Perhaps because this is a bourgeois culture, the victim must look free, appear to be freely acting. Choice is how she got there. Willing is what she is when she is being equal. It seems equally important that then and there she actually be forced and that forcing be communicated on some level, even if only through still photos of her in postures of receptivity and access, available for penetration. Pornography in this view is a form of forced sex, a practice of sexual politics, an institution of gender inequality.
From this perspective, pornography is neither harmless fantasy nor a corrupt and confused misrepresentation of an otherwise natural and healthy sexual situation. It institutionalizes the sexuality of male supremacy, fusing the erotization of dominance and submission with the social construction of male and female. To the extent that gender is sexual, pornography is part of constituting the meaning of that sexuality. Men treat women as who they see women as being. Pornography constructs who that is. Men's power over women means that the way men see women defines who women can be. Pornography is that way. Pornography is not imagery in some relation to a reality elsewhere constructed. It is not a distortion, reflection, projection, expression, fantasy, representation, or symbol either. It is a sexual reality.
* * *
In this approach, the experience of the (overwhelmingly) male audiences who consume pornography is therefore not fantasy or simulation or catharsis but sexual reality, the level of reality on which sex itself largely operates. Understanding this dimension of the problem does not require noticing that pornography models are real women to whom, in most cases, something real is being done; nor does it even require inquiring into the systematic infliction of pornography and its sexuality upon women, although it helps. The way in which the pornography itself provides what those who consume it want matters. Pornography participates in its audience's eroticism through creating an accessible sexual object, the possession and consumption of which is male sexuality, as socially constructed; to be consumed and possessed as which, is female sexuality, as socially constructed; and pornography is a process that constructs it that way.
The object world is constructed according to how it looks with respect to its possible uses. Pornography defines women by how we look according to how we can be sexually used. Pornography codes how to look at women, so you know what you can do with one when you see one. Gender is an assignment made visually, both originally and in everyday life. A sex object is defined on the basis of its looks, in terms of its usability for sexual pleasure, such that both the looking the quality of the gaze, including its point of view and the definition according to use become eroticized as part of the sex itself. This is what the feminist concept "sex object"' means. In this sense, sex in life is no less mediated that it is in art. One could say men have sex with their image of a woman. It is not that life and art imitate each other; in this sexuality, they are each other.
To give a set of rough epistemological translations, to defend pornography as consistent with the equality of the sexes is to defend the subordination of women to men as sexual equality. What in the pornographic view is love and romance looks a great deal like hatred and torture to the feminist. Pleasure and eroticism become violation. Desire appears as lust for dominance and submission. The vulnerability of women's projected sexual availability, that acting we are allowed (i.e. asking to be acted upon), is victimization. Play conforms to scripted roles. Fantasy expresses ideology, is not exempt from it. Admiration of natural physical beauty becomesobjectification. Harmlessness becomes harm. Pornography is a harm of male supremacy made difficult to see because of its pervasiveness, potency, and, principally, because of its success in making the world a pornographic place. Specifically, its harm cannot be discerned, and will not be addressed, if viewed and approached neutrally, because it is so much of "what is."' In other words, to the extent pornography succeeds in constructing social reality, it becomes invisible as harm. If we live in a world that pornography creates through the power of men in a male dominated situation the issue is not what the harm of pornography is, but how that harm is to become visible.
* * *
Obscenity, in this light, is a moral idea; an idea about judgments of good and bad. Pornography, by contrast, is a political practice, a practice of power and powerlessness. Obscenity is ideational and abstract; pornography is concrete and substantive. The two concepts represent two entirely different things. Nudity, excess of candor, arousal or excitement, prurient appeal, illegality of the acts depicted, and unnaturalness or perversion are all qualities that bother obscenity law when sex is depicted or portrayed. Sex forced on real women so that it can be sold at a profit to be forced on other real women; women's bodies trussed and maimed and raped and made into things to be hurt and obtained and accessed and this presented as the nature of women in a way that is acted on and acted out over and over; the coercion that is visible and the coercion that has become invisible this and more bothers feminists about pornography. Obscenity as such probably does little harm. Pornography is integral to attitudes and behaviors of violence and discrimination which define the treatment and status of half the population.
* * *
At the request of the city of Minneapolis, Andrea Dworkin and I conceived and designed a local human rights ordinance in accordance with our approach to the pornography issue. We define pornography as a practice of sex discrimination, a violation of women's civil rights, the opposite of sexual equality. Its point is to hold accountable, to those who are injured, those who profit from and benefit from that i jury. It means that women's injury - our damage, our pain, our enforced inferiority - should outweigh their pleasure and their profits, or sex equality is meaningless.
We define pornography as the graphic sexually explicit subordination of women through pictures or words that also includes women dehumanized as sexual objects, things, or commodities, enjoying pain or humiliation or rape, being tied up, cut up, mutilated, bruised, or physically hurt, in postures of sexual submission or servility or display, reduced to body parts, penetrated by objects or animals, or presented in scenarios of degradation, injury, torture, shown as filthy or inferior, bleeding, bruised, or hurt in a context that makes these conditions sexual. Erotica, defined by distinction as not this, might be sexually explicit materials premised on equality. We also provide that the use of men, children or transsexuals in the place of women is pornography. The definition is substantive in that it is sex specific, but it covers everyone in a sex specific way, so is gender neutral in overall design.
There is a buried issue within sex discrimination law about what sex, meaning gender, is. If sex is a difference, social or biological, one looks to see if a challenged practice occurs along the same lines; if it does, or if it is done to both sexes, the practice is not discrimination, not inequality. If, by contrast, sex inequality is a matter of dominance, the issue is not the gender difference but the difference gender makes. In this more substantive, less abstract approach, the concern is whether a practice subordinates on the basis of sex. The first approach implies that marginal correction is needed; the second suggests social change. Equality to the first centers on abstract symmetry between equivalent categories; the asymmetry that occurs when categories are not equivalent is not inequality, it is treating unlikes differently. To the second approach, inequality centers on the substantive, cumulative disadvantagement of social hierarchy. Equality to the first is nondifferentiation; to the second, equality is nonsubordination. Although it is consonant with both approaches, our anti pornography statute emerges largely from an analysis of the problem under the second approach.
To define pornography as a practice of sex discrimination combines a mode of portrayal that has a legal history - the sexually explicit - with an active term central to the inequality of the sexes - subordination. Among other things, subordination means to be placed in a position of inferiority or loss of power, or to be demeaned or denigrated. To be someone's subordinate is the opposite of being their equal. The definition does not include all sexually explicit depictions of the subordination of women. That is not what it says. It says, this which does that: the sexually explicit which subordinates women. To these active terms to capture what the pornography does, the definition adds a list of what it must also contain. This list, from our analysis, is an exhaustive description of what must be in the pornography for it to do what it does behaviorally. Each item in the definition is supported by experimental, testimonial, social, and clinical evidence. We made a legislative choice to be exhaustive and specific and concrete rather than conceptual and general, to minimize problems of chilling effect, making it hard to guess wrong, thus making self-censorship less likely, but encouraging (to use a phrase from discrimination law) voluntary compliance, knowing that if something turns up that is not on the list, the law will not be expansively interpreted.
* * *
Although police have known it for years, reported cases are increasingly noting the causal role of pornography in some sexual abuse. In a recent Minnesota case, a fourteen-year-old girl on a bicycle was stopped with a knife and forced into a car. Her hands were tied with a belt, she was pushed to the floor and covered with a blanket. The knife was then used to cut off her clothes, and fingers and a knife were inserted into her vagina. Then the man had her dress, drove her to a gravel pit, ordered her to stick a safety pin into the nipple of her left breast, and forced her to ask him to hit her. After hitting her, he forced her to commit fellatio and to submit to anal penetration, and made her use a cigarette to burn herself on her breast and near her pubic area. Then he defecated and urinated on her face, forced her to ingest some of the excrement and urine and made her urinate into a cup and drink it. He took a string from her blouse and choked her to the point of unconsciousness, leaving burn marks on her neck, and after cutting her with his knife in a couple of places, drove her back to where he had gotten her and let her go. The books that were found with this man were: Violent Stories of Kinky Humiliation, Violent Stories of Dominance and Submission - you think feminists made up these words - Bizarre Sex Crimes, Shamed Victims, and Water Sports Fetish, Enemas and Golden Showers. The Minnesota Supreme Court said "It appears that in committing these various acts, the defendant was giving life to some stories he had read in various pornographic books."'
* * *
Now I'm going to talk about causality in its narrowest sense. Recent experimental research on pornography shows that the materials covered by our definition cause measurable harm to women through increasing men's attitudes and behaviors of discrimination in both violent and nonviolent forms. Exposure to some of the pornography in our definition increases normal men's immediately subsequent willingness to aggress against women under laboratory conditions. It makes normal men more closely resemble convicted rapists attitudinally, although as a group they don't look all that different from them to start with. It also significantly increases attitudinal measures known to correlate with rape and self reports of aggressive acts, measures such as hostility toward women, propensity to rape, condoning rape, and predicting that one would rape or force sex on a woman if one knew one would not get caught. This latter measure, by the way, begins with rape at about a third of all men and moves to half with "forced sex."'
* * *
For those of you who still think pornography is only an idea, consider the possibility that obscenity law got one thing right. Pornography is more act - like than thought - like. The fact that pornography, in a feminist view, furthers the idea of the sexual inferiority of women, which is a political idea, doesn't make the pornography itself into a political idea. One can express the idea a practice embodies. That does not make that practice into an idea. Segregation expresses the idea of the inferiority of one group to another on the basis of race. That does not make segregation an idea. A sign that says "Whites Only"' is only words. Is it therefore protected by the first amendment? Is it not an act, a practice, of segregation because of the inseparability of what it means from what it does? Law is only words.
The issue here is whether the fact that the central link in the cycle of abuse that I have connected is words and pictures will immunize that entire cycle, about which we cannot do anything without doing something about the pornography.
Andrea Dworkin and Catharine A. MacKinnon coauthored an overview of their antipornography civil rights ordinance in 1992 for the Judiciary Committee of the Commonwealth of Massachusetts. Excerpts from the text of this model antipornography civil rights ordinance can be found online, in addition to MacKinnon and Dworkin's book, A New Day For Women's Equality, which explains: "How pornography hurts women and how and why the civil-rights ordinance would make a difference; Why the pornography is so important to women's equality; The truth about the antipornography civil-rights ordinance--what it is, what it does, what it means, how it works; Answers to the lies about it--lies that the media have spread to protect the pornography industry; What you can do to stop the pornographers and further women's equality."
Pornography is an issue that has divided many feminists. Nan Hunter and Sylvia Law opposed the MacKinnon-Dworkin ordinance. Consider the following excerpt from their amici brief filed in the American Booksellers v. Hudnut case:
Amici Brief: American Booksellers v. Hudnut, Nan Hunter and Sylvia Law
Although Appellants argue that the ordinance is designed to restrict images which legitimate violence and coercion against women, the definition of pornography in the ordinance is not limited to images of violence or of coercion, or to images produced by women who were coerced…(I)t extends to any sexually explicit material which an agency or court finds to be ‘subordinating’ to a claimant acting on behalf of women and which fits within one of the descriptive categories…
The constitutionality of the ordinance depends on the assumption that state agencies and courts can develop clear legal definitions of terms like ‘sexually explicit subordination’ ‘sexual object,’ and ‘scenarios of degradation’ and ‘abasement.’ In truth, these terms are highly contextual and of varying meanings…
Words and images do influence what people think, how they feel, and what they do, both positively and negatively. Thus pornography may have such influence. But the connection between fantasy or symbolic representation and actions in the real world is not direct or linear. Sexual imagery is not so simple to assess. In the sexual realm, perhaps more so than in any other, messages and their impact on the viewer or reader are often multiple, contradictory, layered and highly contextual…
This provision does far more than simply provide a remedy to women who are pressured into the creation of pornography which they subsequently seek to suppress. It functions to make all women incompetent to enter into legally binding contracts for the production of sexually explicit material. When women are legally disabled from making binding agreements, they are denied power to negotiate for fair treatment and decent pay…
To resist forced sex and violence, women need the material resources to enable them to reject jobs or marriages in which they are abused or assaulted and the internal and collective strength to fight the conditions of abuse. The ordinacnce does nothing to enhance the concrete economic and social power of women. Further, its stereotype of women as powerless victims undermines women’s ability to act affirmatively to protect themselves…
Suppression of sexually explicit material will not eliminate the pervasive sexist images of the mainstream culture or the discriminatory economic and social treatment that maintains women’s second class status. Such suppression will not empower women to enter into sexual relationships on a voluntary, consensual basis. Empowering women requires something more than suppression of texts and images. It demands ‘concrete material changes that enable women and men to experience sexuality less attached to and formed by gender.’ These changes include social and economic equality; access to jobs, day care and education; more equal sharing of responsibility for children; recognition of the social and economic value of the work that women have traditionally done in the home; and access to birth control, abortion, and sex education.
See also, Susan Etta Keller, Viewing and Doing: Complicating Pornography’s Meaning, 81 Georgetown Law Journal 2195 (1993).
As exemplified by the readings presented above, extensive academic debate has taken place concerning the legal issues and social ramifications implicated by the connection between pornography and violence against women.
Recently, however, the debate has intensified in political circles and societal spheres outside the realms of academia and Supreme Court jurisprudence. This trend is at least in part attributable to the development of a new problem -- the problem of pornography, stalking, and violence against women on the internet. Demands for regulation of violence against women in cyberspace have increased exponentially with the reporting of high-profile cyber-stalking and e-mail harassment cases. [For example, Vice President Al Gore recently called for "stronger federal laws to combat stalking over the Internet." See Vice President Calls for Better Cyber Stalking Laws, 9/18/99].
One of these cases, United States v. Baker, is the subject of this week's Case Study. Please read the excerpts from the district court opinion and appellate court majority and dissent opinions provided below. Please note that the dissent to the appellate court opinion contains very explicit sexual and violent material.
In addition, optional background readings are available on the following topics: current state and federal stalking laws (including 18 U.S.C. § 875(c), the statute Jake Baker was charged with violating); First Amendment considerations relating to anti-cyberstalking statutes; the extent of the cyber-stalking problem; and Internet industry attempts to deal with the cyberstalking problem.
UNITED STATES of America, Plaintiff,
Jake BAKER and Arthur Gonda, Defendants.
United States District Court, E
June 21, 1995.
COHN, District Judge.
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."
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 story.
. . . 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 from the originals.
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:
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 counts reads:
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 possible ending....
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:
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 sufficiently specific.
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:
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 record.
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."
Abraham Jacob ALKHABAZ, also known as Jake Baker, Defendant-Appellee.
United States Court of Appeals,
Argued Aug. 16, 1996; Decided Jan. 29, 1997.
Rehearing and Suggestion for Rehearing En Banc Denied April 14, 1997.
F. Martin, Jr., Chief Judge.
Boyce F. Martin, Jr., Chief Judge.
The district court dismissed the indictment against Baker, reasoning that the e-mail messages sent and received by Baker and Gonda did not constitute "true threats" under the First Amendment and, as such, were protected speech. The government argues that the district court erred in dismissing the indictment because the communications between Gonda and Baker do constitute "true threats" and, as such, do not implicate First Amendment free speech protections.
... We conclude that the communications between Baker and Gonda do not constitute "communication[s] containing a threat" under Section 875(c). Even if a reasonable person would take the communications between Baker and Gonda as serious expressions of an intention to inflict bodily harm, no reasonable person would perceive such communications as being conveyed to effect some change or achieve some goal through intimidation. Quite the opposite, Baker and Gonda apparently sent e-mail messages to each other in an attempt to foster a friendship based on shared sexual fantasies.
We agree with the
district court, that "[w]hatever Baker's faults, and he is to be faulted,
he did not violate 18 U.S.C. § 875(c)."
The panel majority has ruled that an interstate or international "communication containing any threat" to kidnap or injure another person is criminalized by 18 U.S.C. § 875(c) only when the subject communication was conveyed with the general intent "to effect some change or achieve some goal through intimidation." The majority concludes that because the instant indictment alleges only communications purportedly intended to foster a perverse camaraderie between the correspondents, rather than "to effect some change or realize some goal through intimidation," the indictment must be dismissed because each count fails to allege an essential element of a section 875(c) charge. Because the majority has intruded upon Congressional prerogatives by judicially legislating an exogenous element into section 875(c) that materially alters the plain language and purpose of that section and ignores the prevailing precedents of the Supreme Court and this circuit, I respectfully dissent from the majority's decision.
. . .
. . .Jake Baker (also known as Abraham Jacob Alkhabaz), an undergraduate student attending the University of Michigan in Ann Arbor, for some time prior to November 1994 and continuing until February 1995 was a regular contributor of sadistic fictional "short stories" intended for public dissemination and comment via a Usenet electronic bulletin board. The appellate record contains a substantial anthology of Baker's efforts. Overall, these misogynistic articles evince an extreme and morbid fascination with the concept of the physical and psychological abuse and torment of women and young girls, described in lurid detail, and often culminating in murder.
"Jane Doe story," which he named after an actual female classmate
and which in fact is a relatively mild exemplar of the bestial genre of
Baker's fiction, follows: (last name of a specific female classmate
of Baker's omitted). [Warning: Graphic violent and
sexually explicit material follows].
(last name of a specific female classmate of Baker's omitted). [Warning: Graphic violent and sexually explicit material follows].
Prologue: The following story start [sic] in media res. The premise is that my friend Jerry and I have broken into the apartment of this girl, [full name omitted], whom I know from call [sic], and are porceeding [sic] to have a little fun with her. ('I' = the protagonist).
She's shaking with terror as Jerry and I circle her. She'd [sic] almost completely nude now - we've made her take off all her clothes except for her bra and panties. As Jerry and I pass by her, we reach out and feel her velvety flesh, caress her breasts and ass through her underwear. Jerry and I snap pictures of her tiny trembling body from all angles.
She says in a little, terrified voice, "Why are you doing this ... I've never hurt you ... p -please stop!" I pause in front of her. Jerry smiles at her terror. He laughs at her pitiful pleas. I say, "Shut the fuck up, stupid whore!" and hit the side of her head, hard. She collapses onto the ground, crying, curling up into a little ball.
"Alright. Let's have some fun!"
I yank her up by the hair and force her hands behind her back. I quickly get them restrained with duck [sic] tape. Her little body struggles against me as she screams for help. Jerry tears off her panties and shoves them into her delicious mouth, securing them with a tight strip of rope.
She'd [sic] still struggling, screaming into the makeshift gag. I let her drop, to take pictures of her as she struggles against her bonds. As she's fighting there on the carpet, eyes wide with fear, Jerry and I strip. Jerry's got a hard on. I've got a hard on. We laugh.
I grab her bra and rip it off her. Holding her still for Jerry, he fondles her breasts, feeling up her entire body. As she moans into the gag, Jerry comments on how soft she is. I slap her face several time, enjoying the smacking sounds my hand makes against her pink skin. Forcing her to her knees, I rub my cock into her face - over her cheeks and her eyes and her nose. She turns her head, closing her eyes with the humiliation, so I shove my prick as far as it will go into her ear. Her inner cannals [sic] warm; I force it in harder, and my penis-head scrunches up to fit into the small hole, not quite making it. [first name omitted] groans into her gag. Then, Jerry and I tie her by her long brown hair to the ceiling fan, so that she's dangling in mid-air. Her feet don't touch the ground. She kicks trying to hit me, Jerry or the ground. The sight of her wiggling in mid-air, hands rudely tied behind her back, turns me on. Jerry takes a big spiky hair-brush and start [sic] beating her small breasts with it, coloring them with nice red marks. She screams and struggles harder. I've separated her legs with a spreader -bar; now I stretch out her pussy-lips and super-glue them wide open. Then I take a heavy clamp, and tighten it over her clit. Once it's tight enough, I let go.
I stand back, to take pictures. She's really nice now: Dangling by her hair (I can see where it's stretching her scalp), her breasts and belly are covered with bright red bruises. There's a heavy clamp stretching her cunt down. And best of all, her face is scrunched up in an agonized grimace. Drool and loud squeaks escape through her gag. She's so beautiful like this. Just to add to the picture, I take a steel-wire wisk and beat her ass with it, making bright red cuts that drip blood. [last name omitted]'s tiny pink body is now covered in sweat; nice and shiny in the light.
Jerry tells me her curling-iron's ready. Jerry unplugs it and bring [sic] it over. After taking her down and tying her hunched over a chair, Jerry strokes the device against her bleeding ass cheeks. The heat from it gives her ass small burns. I smile and stroke my cock as she screams in pain and horror. She shakes her head and moans, "Nooo ... nooo" through the gag. I walk in front of her, and remove the gag. Before she can even breath in, I ram my cock in her tiny mouth. Her lips squeeze against my shaft. The head of my prick finds its way down her lovely throat. That's when Jerry ram [sic] the hot curling iron into her tight asshole. She tries to scream, but I shove my cock's [sic] down her throat, and all she manages to do is gag on it. Her throat's quiverings tickle my cock, and I start humping her face furiously. The pain of the hot curling iron in her tender asshole sent her whole body into convulsions; her throat clenched against my cock. God! This felt so good.
Leaving the iron up her asshole, Jerry reached out, pulled one of her small tits away form [sic] her body. Jerry took his knife, and cut her nipple off. She gags on my cock some more, and I pull out just in time to cum all over her pretty face.
As I spew loads of hot white cum onto her face, Jerry continues to maul at her breasts. He pulls them as far as they'll go away from her body, twisting them to cause even more pain. Now that she doesn't have my cock down her throat, gagging her, [first name omitted] howls out loud. It's not even a human sound. Her eyes glaze over from the pain and torture; a ball of my cum smacks her in the left eye.
Spent, I go grab a beer and watch Jerry finish off play. When he pulls the curling iron from [first name omitted]'s asshole, her sensitive skin is all burned. He pressed the head of his cock against the tortured opening. Jerry's got a savagely big dick, and would have hurt this girl even if her ass hadn't been burned. [first name omitted] let out a small scream, but was too weak at this point to make it really loud. She only made fierce grunts as my friend's cock tore apart the inside of her scorched asshole.
I timed Jerry at this. He had a good constituition [sic]. For ten minutes he buggered poor pretty [first name omitted]. Then he finally came inside her. Standing up, he walked around to see her face. Tears and sweat mixed with my cum on her cute face. Jerry grabbed a handful of her hair and pulled her face up to look. Her eyes, barely human, begged him to stop. He laughed aloud and gave her a firm smack. Her head jerked sideways with a snap.
"C'mon, man, let's go." My friend said. So we got the gasoline and spread it all over [full name omitted]'s apartment. We chucked it over her. It must have burned like hell when it came into contact with her open cuts, but I couldn't tell. Her face was already a mask of pain, and her body quivered fiiercely [sic]. "Goodbye, [first name omitted]" I said, and lit a match ...
J.App. at 91-93.
By November 1994, Baker's sadistic stories attracted the attention of an individual who called himself "Arthur Gonda," a Usenet service subscriber residing in Ontario, Canada, who apparently shared similarly misdirected proclivities. Baker and Gonda subsequently exchanged at least 41 private computerized electronic mail ("e-mail") communications between November 29, 1994 and January 25, 1995. Concurrently, Baker continued to distribute violent sordid tales on the electronic bulletin board. On January 9, 1995, Baker brazenly disseminated publicly, via the electronic bulletin board, the depraved torture-and-snuff story excerpted above in which the victim shared the name of a female classmate of Baker's referred to below as "Jane Doe" [FN3]. This imprudent act triggered notification of the University of Michigan authorities by an alarmed citizen on January 18, 1995. On the following day, Baker admitted to a University of Michigan investigator that he had authored the story and published it on the Internet.
FN3. Although the true name of "Jane Doe" was known to the district court and to this appellate forum, her identity has been concealed to spare this young woman any additional and unnecessary fear, emotional trauma, or embarrassment. The record reflected that during an interview concerning Baker's Jane Doe publication conducted by a University of Michigan investigator, Jane Doe "appeared to be controlling herself with great difficulty[,]" resulting in a recommendation for psychological counseling by University of Michigan personnel.
Later that month, pursuant to Baker's written consent, university security personnel searched the defendant's dormitory room, personal papers, and computer files including his unique e-mail compartment. This investigation surfaced a second violent and reprehensible tale featuring Jane Doe's actual name, as well as her accurate residential address. The search of Baker's electronic mailbox disclosed a chilling correspondence between the defendant and Gonda chronicling the two men's plans of abduction, bondage, torture, humiliation, mutilation, rape, sodomy, murder, and necrophilia. Most ominously, these messages cumulated in a conspiracy between the two men to realize their aberrant e-mail discussions and exchanges by implementing an actual abduction, rape, and murder of a female person.
. . . Although the majority of this panel now affirms the judgment of the district court, it has avoided addressing the First Amendment issue. Instead it mandates, by judicial license, that the communications charged in the superseding indictment did not constitute "threats" of any kind because the panel majority interprets section 875(c) to require, as a matter of law, that a "threatening" communication must be accompanied by an intent to intimidate or coerce someone to attain some "change" or "goal." It is obvious, however, from the concise language of 18 U.S.C. § 875(c) that Congress refused to include an "intent to intimidate or coerce someone to attain some change or goal" as an element of the criminal act addressed therein:
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. 18 U.S.C. § 875(c) (emphases added).
The words in section 875(c) are simple, clear, concise, and unambiguous. The plain, expressed statutory language commands only that the alleged communication must contain any threat to kidnap or physically injure any person, made for any reason or no reason. Section 875(c) by its terms does not confine the scope of criminalized communications to those directed to identified individuals and intended to effect some particular change or goal.
. . . Thus, the plain language of 18 U.S.C. § 875(c), together with its interpretive precedents, compels the conclusion that "threats" within the scope of the statute in controversy include all reasonably credible communications which express the speaker's objective intent to kidnap or physically injure another person. Whether the originator of the message intended to intimidate or coerce anyone thereby is irrelevant. Rather, the pertinent inquiry is whether a jury could find that a reasonable recipient of the communication would objectively tend to believe that the speaker was serious about his stated intention. There can be no doubt that a rational jury could find that some or all of the minacious communications charged in the superseding indictment against Baker constituted threats by the defendant to harm a female human being, which a reasonable objective recipient of the transmissions could find credible.
. . . Because the communications charged against Baker could be found by a rational jury to constitute "threats" within the ambit of 18 U.S.C. § 875(c), the district court's resolution that a rational jury could not find that any of these communications comprised constitutionally unprotected "true threats" is ripe for review. The Supreme Court has recognized that, while the First Amendment extends varying degrees of protection against government censure to most forms of expression (with political speech receiving the most stringent safeguards), certain forms of speech are deemed unworthy of any constitutional protection and consequently may be criminalized. A "threat" is a recognized category of expression which warrants no First Amendment protection. However, only communications which convey "true threats" (as opposed to, for example, inadvertent statements, mistakes, jests, hyperbole, innocuous talk, or political commentary not objectively intended to express a real threat) are "threats" outside the embrace of the First Amendment's guarantees.
. . . Consequently, a communication which an objective, rational observer would tend to interpret, in its factual context, as a credible threat, is a "true threat" which may be punished by the government. The majority's disposition notwithstanding, logic dictates that any objectively credible representation of an intent to harm someone should be considered both a "threat" by the statement's originator, as well as a "true threat" beyond the scope of the First Amendment's free speech guarantees.
The majority's disposition leads to absurd results where, as in the case at bench, minacious communications have been made which may satisfy the constitutional "true threat" standard because a reasonable jury could find that those communications contained believable expressions of an intention to injure a person, yet those same communications are nonetheless deemed beyond the reach of 18 U.S.C. § 875(c) as not constituting "threats" as a matter of law, merely because the subject communications were not made with the intent to realize a specific purpose through intimidation. Although Congress, via section 875(c), clearly intended to punish every credible interstate or transnational expression of an intent to kidnap or injure another person, the majority's legally erroneous unduly restrictive interpretation of the word "threat" as used in section 875(c) effectively divests Congress of its constitutional lawmaking authority by artificially confining the intended scope of section 875(c) to a degree not compelled by the First Amendment.
. . . the facts of the instant case justify reversal and remand because they even satisfy the judicially legislated edict articulated in the majority opinion. Assuming arguendo that a threat under 18 U.S.C. § 875(c) requires a general intent by the speaker to attain some result or change through intimidation (which it does not), a rational jury could conclude that this element was proved in this case. By publishing his sadistic Jane Doe story on the Internet, Baker could reasonably foresee that his threats to harm Jane Doe would ultimately be communicated to her (as they were), and would cause her fear and intimidation, which in fact ultimately occurred. The panel majority may casually conclude within the security of chambers that Baker's threats conveyed to Jane Doe in his articles published on the Internet were nonintimidating. However, Jane Doe's reaction to those threats when brought to her attention evinces a contrary conclusion of a shattering traumatic reaction that resulted in recommended psychological counselling.
Accordingly, I would reverse the district court's judgment which dismissed the superseding indictment as purportedly not alleging "true threats," and remand the cause to the lower court. I DISSENT.
For further background on the case, see Adam S. Miller, The Jake Baker Scandal: A Perversion of Logic.
The Jake Baker case is a particularly horrific one - the harm is quite visible, yet the government was ineffective at stopping it. [The victim, consistent with victims in all our previous discussions, dropped out of school. Thus we have another example of a male's violence infringing on the life and opportunity of a female victim/survivor.] Do you agree with the court's analysis that the threats to the woman identified in the story or to the women who were likely targets of Baker's murder/rape/torture threats were too vague to be actionable? If someone threatened to abduct, torture and murder a member of the House of Representatives, for example, would that have been too vague, as it does not involve the identification of a particular person? Are threats against men taken more seriously than those against women? Finally, do you think that this case would have been decided differently today, given the proliferation of the Internet into our daily lives(the case was from 1995)?
Group A Participants. Post your responses here.
Group B Participants. Add your thoughts to the general discussion page.
Violence against women on the internet is considered to be a new problem created by the expansion and increased accesibility of cyberspace. Is violence against women on the internet a new problem? Do you think that more attention gets paid to the issues of pornography, harassment, and stalking when they take take the form of cyberspace communications rather than other media or real-life forms? Are there new, underlying social or legal issues that arise when pornography and violence against women occur over the internet? Or do the issues discussed in the introduction to this module simply carry over to the new medium?
Group A Participants. Post your responses here.
Group B Participants. Add your thoughts to the general discussion page.
Have you every felt harmed by pornography?
Have you ever felt objectified by the presence of pornography, or by its
use by someone you know? How do you 'talk back' to pornography? Are you
concerned about pornography in general or over the internet? How do you
think it should best be addressed? What are your thoughts about possible
Have you every felt harmed by pornography? Have you ever felt objectified by the presence of pornography, or by its use by someone you know? How do you 'talk back' to pornography? Are you concerned about pornography in general or over the internet? How do you think it should best be addressed? What are your thoughts about possible regulation strategies?
Group A Participants. Post your responses here.
Group B Participants. Add your thoughts to the general discussion page.