I’d somehow overlooked this one.
This statute, which was added to the federal code in December of 2004 by § 6702(a) of Title VI of Public Law # 108-458, criminalizes disseminating hoax information about possible terrorist or military attacks.
It's codified as 18 U.S. Code §1038. Section 1038 has two different prohibitions, the first of which appears in § 1038(a)(1). It provides as follows:
Whoever engages in any conduct with intent to convey false or misleading information under circumstances where such information may reasonably be believed and where such information indicates that an activity has taken, is taking, or will take place that would constitute a violation of chapter 2, 10, 11B, 39, 40, 44, 111, or 113B of this title, section 236 of the Atomic Energy Act of 1954 (42 U.S.C. 2284), or section 46502, the second sentence of section 46504, section 46505(b)(3) or (c), section 46506 if homicide or attempted homicide is involved, or section 60123(b) of title 49, shall--The other substantive prohibition appears in section 1038(a)(2). It provides as follows:
(A) be fined under this title or imprisoned not more than 5 years, or both;
(B) if serious bodily injury results, be fined under this title or imprisoned not more than 20 years, or both; and
(C) if death results, be fined under this title or imprisoned for any number of years up to life, or both.
Any person who makes a false statement, with intent to convey false or misleading information, about the death, injury, capture, or disappearance of a member of the Armed Forces of the United States during a war or armed conflict in which the United States is engaged--Amazingly (to me, anyway), someone has been convicted of violating this statute. Actually, a number of people have been convicted of violating it, several for anthrax hoaxes. I’m more interested in the case I’m going to talk about because it involves publishing a story online, not sending a letter claiming to have deposited anthrax in a government facility.
(A) shall be fined under this title, imprisoned not more than 5 years, or both;
(B) if serious bodily injury results, shall be fined under this title, imprisoned not more than 20 years, or both; and
(C) if death results, shall be fined under this title, imprisoned for any number of years or for life, or both.
According to the district court’s opinion in United States v. Brahm, 2007 WL 3111774 (U.S. District Court for the District of New Jersey), in September of 2006 Jake Brahm, who lived in Wauwatosa, Wisconsin, posted this message on the www.4chan.org site:
On Sunday, October 22, 2006, there will be seven “dirty” explosive devices detonated in seven different U.S. cities: Miami, New York City, Atlanta, Seattle, Houston, Oakland, and Cleveland. The death toll will approach 100,000 from the initial blast and countless other fatalities will later occur as a result from radio active fallout.The opinion says the post “became a news story of some national prominence” in the days leading up to October 22, even though the authorities did not take it seriously.
The bombs themselves will be delivered via trucks. These trucks will pull up to stadiums hosting NFL games in each respective city. All stadiums to be targeted are open air arenas excluding Atlanta's Georgia dome, the only enclosed stadium to be hit. Due to the open air the radiological fallout will destroy those not killed in the initial explosion. The explosions will be near simultaneous with the city specifically chosen in different time zones to allow for multiple attacks at the same time.
The 22nd of October will mark the final day of Ramadan as it will fall in Mecca, Al-Qaeda will automatically be blamed for the attacks later through Al-Jazeera, Osama Bin Laden will issue a video message claiming responsibility for what he dubs “America's Hiroshima”. In the aftermath civil wars will erupt across the world both in the Middle East and within the United States. Global economies will screech to a halt and general chaos will rule.
Federal agents tracked Brahm down and he was indicted for violating §§ 1038(a)(1) and (a)(2). He moved to dismiss the indictment, arguing that the phrase “may reasonably be believed” in §1038(a)(1) had to be construed in light of his target audience. United States v. Brahm, supra.
Brahm claimed that “reasonably” had to be interpreted in a way that took into account whether the "audience addressed by false or misleading information would believe it to be true.” United States v. Brahm, supra. He argued for a subjective audience-sensitive interpretation of “reasonably,” so he could be held liable only if the government could prove that the readers of the www.4chan.org website would have believed his statement. The prosecution argued that it should be interpreted to permit a conviction if, under the circumstances, a reasonable person would have believed the posting. The district court reviewed the use of “reasonableness” in other threat statutes, and agreed with the government. United States v. Brahm, supra.
According to news stories, Brahm was a 20-year-old grocery clerk living with his parents. An FBI agent said Brahm thought it would be funny to post the story because he thought it was so preposterous no one would believe it. As to that, the agent, Richard Ruminski, said, "`It's a hoax. It's nonsense, not a credible threat. . . . But in a post 9-11 world, you take these threats seriously. It's almost like making a threat going onto an airplane -- you just don't do it’”.
The district court denied Brahm’s motion to dismiss the indictment on October 19, which wasn’t very long ago. I can’t find any reported developments in the case since then. He faces up to 5 years in prison on the federal charge. He was extradited to New Jersey for prosecution there.
The district court did not consider whether Brahm’s posting – the joke – was protected by the First Amendment, though it noted that the First Amendment protects humorous speech, even when it’s false. So that may be an issue he will raise in the future.
In its opinion, the court cited the famous War of the Worlds broadcast as a hoax that “might not qualify as something within the reasonable belief required by the statute,” but “would represent the kind of intentionally false information anticipated by section 1038.” United States v. Brahm, supra. It noted that “a fictitious broadcast of a terrorist attack on a major city with the goal of making a . . . political or artistic statement, causes greater concern, as . . . expressive, protected speech . . . might be affected” by the statute. United States v. Brahm, supra. In a footnote, the court pointed out that the War of the Worlds broadcast and 1983 and 1994 broadcasts dealing with fictional terrorist attacks provided disclaimers intended to alert the audience to their fictional nature. United States v. Brahm, supra.
The disclaimers in the 1983 and 1994 broadcasts were repreated throughout the shows. The War of the Worlds disclaimers did not begin until that show had been on the air for 40 minutes. They came after a number of New York police officers invaded the control room of the studio from which the broadcast was originating. The officers seemed to think they should arrest someone, but weren’t sure who to arrest or for what. According to one story I’ve read, Welles expected to be arrested immediately after the broadcast ended, but the police finally gave up and left because they still couldn’t figure out what to charge him or anyone else involved in the broadcast with.
It looks like Welles could have been prosecuted under § 1038, if it had existed at the time. I’m not sure anything in the radio play would violae § 1038(a)(1), but I believe members of the armed forces die fighting the armed Martian invaders in the “War of the Worlds” radio script, so that would probably violate § 1038(a)(2). He could try to defend himself by pointing out the inherent incredibility of the broadcast, i.e., by arguing that no one would be silly enough to really believe we were under attack by Martians . . . but a lot of people were silly enough to believe just that in 1939.
I’m not sure where I come out on this statute. I can definitely see the utility of being able to prosecute people who pull off anthrax and similar hoaxes. There, though, the conduct is far less ambiguous: They send letters or other messages claiming to have planted anthrax – or bubonic plague or bombs or the horrors of your choice – somewhere it can do a great deal of damage. Conduct like that is a threat, just as it’s a threat for John to tell Jane he’s going to kill her.
Our law has no difficulty criminalizing that kind of speech because what is being criminalized is not speech, as such – it’s the act of using speech to terrorize people (and perhaps cause consequential injuries and damage, as in the anthrax hoax cases). The speech at issue in the Brahm case is very different: He did not send a threat directly to anyone. He probably did go beyond what Orson Welles did because the “War of the Worlds” broadcast was purely expressive speech – art, in other words. Brahm claimed that what he posted was a joke – a satire analogous to the stories posted on The Onion, say. If it’s satire, it should not be criminalized.
The problem Brahm faces is to a great extent one of context: In the direct, anthrax kind of hoax, the hoaxer sends the functional equivalent of a threat to his victims. The prosecution’s theory in the Brahm case seems to be that he perpetrated an indirect kind of hoax by putting his joke online, where it could be read by anyone. Context comes into play in deciding whether a post like Brahms’ will reasonably be understood by those who read it as (i) satire or (ii) a credible threat report. If he’d posted his joke on an obviously satiric site like The Onion, would that take it out of the category of a criminal hoax under § 1038? Or are there some things we just cannot joke about at the beginning of the twenty-first century?