"True Threat"

In an earlier post, I talked about the Alkhabaz case, in which a federal court dismissed a charge of using the Internet to transmit a “threat” to someone.

The defendant in that case was charged under 18 U.S. Code § 875(c), which makes it a crime to transmit in interstate commerce “any communication containing any threat to kidnap any person or any threat to injure the person of another”.

The use of the Internet qualifies as the use of interstate commerce, so the only issue in the case was whether what the defendant posted online constituted a threat, or what courts usually refer to as a “true threat.” As I explained in that earlier post, Alkhabaz posted stores describing the horrific torture and eventual murder of a woman who seemed to be a classmate of his. He didn’t send them to her or post them anywhere he thought she’d see them; he did post them on a website for people interested in such things.

When she discovered the posts, essentially by accident, she was horrified, as was everyone else, apparently. The federal district court dismissed the charge because it found the stories weren’t a “threat.” The government appealed to the Sixth Circuit Court of Appeals, which begin its analysis of the issue by explaining that

to constitute `a communication containing a threat’ under Section 875(c), a communication must be such that a reasonable person (1) would take the statement as a serious expression of an intention to inflict bodily harm (the mens rea), and (2) would perceive such expression as being communicated to effect some change or achieve some goal through intimidation (the actus reus).

U.S. v. Alkhabaz, 104 F.3d 1492 (6th Cir. 1997).

The Sixth Circuit agreed that the fantasies Alkhabaz had posted were not a threat, in part because he had not sent them to the person he described in them:

For example, `if the court mails this opinion to West Publishing Company, having quoted verbatim the language used by defendant which is alleged to be threatening,’ it is unlikely that any reader's sense of personal safety and well being would be jeopardized. Likewise, if `a member of the general public . . . took notes of defendant's statements and mailed them to a family member, law professor, or newspaper for their information,’ such communication would not . . . compromise the recipient's sense of personal safety. In both cases, the recipient's sense of well-being is not endangered because, from an objective standpoint, the sender has no desire to intimidate.

U.S. v. Alkhabaz, supra. The court found that rather than intending to threaten the woman featured in the fantasies, Alkhabaz posted them “in an attempt to foster a friendship based on shared sexual fantasies.” U.S. v. Alkhabaz, supra. (As I noted, he put them on a web site for people who like this type of fantasy).

That brings me to the case I want to write about. It involves another defendant who was charged with using the Internet to transmit a threat in violation of section 875(c). Here, according to an article in the Penn State Daily Collegian, are the facts that gave rise to the charges:

Steven Voneida, 24, of Harrisburg, . . . placed a photographic illustration and poem focusing on the Virginia Tech shootings on his MySpace page on April 18, [2007]. . . .

A poem entitled `the Ballad of Cho Seung-hui’ about Seung-Hui Cho -- the shooter who killed 32 people and then himself during a rampage on the Virginia Tech campus -- was just one of the pieces on Voneida's MySpace profile focusing on the incident. . . . The poem itself appeared under a headline, `Virginia Tech Massacre: They got what they deserved.'

The Daily Collegian article says Voneida's MySpace profile also included this statement: "Someday I will make the Virginia Tech incident look like a trip to an amusement park”. April 18, 2007 was two days after the shootings at Virginia Tech.

The week after the Virginia Tech killings, an Indiana University of Pennsylvania student visiting MySpace saw Voneida’s postings and contacted the Penn State - Harrisburg University Police. (Voneida was a student there.) The University Police contacted the FBI, who began an investigation, in cooperation with he Pennsylvania State Police and the local police department.

Voneida was charged with using the Internet (interstate commerce) to transmit a threat “to injure the person of another”. He filed motions seeking to exclude various evidence from his trial on the charge, and in ruling on the motions the federal district court noted it was “It is unclear to whom these posts were directed, if anyone, or whether they were made public to all MySpace users.” U.S. v. Voneida, 2008 WL 189667 (U.S. District Court for the Middle District of Pennsylania 2008). The court did note that the material Voneida posted remained on MySpace “for at least nine days”, and so had the potential to “reach an audience.” U.S. v. Voneida, supra.

If Voneida filed a motion to dismiss the charges against him on the grounds that what he posted was not a threat, I can’t find any mention of it, either in the press or in the cases reported on Westlaw.

What do you think? Was Voneida’s posting the stuff described above on MySpace a “true threat” as the Sixth Circuit defined that concept in the Alkhabaz case?

Like Alkhabaz, he didn’t send his comments directly to people at his university or any other location where he intended to make “the Virginia tech incident look like a trip to an amusement park”. Like Alkhabaz, he simply posted his comments and the poem about Cho (I can’t find the content online, not surprisingly) on an Internet site. Does it matter if he made the posts publicly available (which I’d assume, given that the IU – Pennsylvania student was able to read them) or not?

If you’re interested in what actually happened, here it is: In February of this year, he was convicted after a one-day bench trial (before a federal district court judge, instead of a jury . . . which could have been a wise move, especially if he was relying on the legal claim that what he posted was not a threat). According to a press release from the U.S. Attorney’s for the Middle District of Pennsylvania (where the case arose), he faces up to five years in prison on the conviction. I found a news story that noted, not surprisingly, that Voneida is going to appeal the conviction.

I have to assume the central issue in an appeal will be the Alkhabaz issue: whether or not posting what he posted on MySpace is really a threat (a “true threat”) or something else. I admit it was really reprehensible and I can’t imagine what he was thinking, but I wonder if it really constitute a “true threat.”

The usual section 875(c) cases involving the use of the Internet are cases like U.S. v. Li, 537 F. Supp.2d 431 (U.S. District Court for the Northern District of New York 2008). Li was given a temporary teaching position at Morrisville State College in Morrisville, New York, but was not rehired because of “poor job performance and inappropriate conduct.” U.S. v. Li, supra. He responded by sending emails threatening to kill college faculty members and administrators, as well as members of their family. U.S. Li, supra. Here are a few of the acts alleged in the indictment that charged him with sending threats in violation of section 875(c):

On September 26, 2006, defendant sent an email to James C. VanRiper, Vice President of the College, stating `Van Ripper: You made a mistake. You will die hard.’

On October 29, 2006, defendant sent an email to Frederick Paine, a professor at the College, stating `You are on the death list!’

On January 15, 2007, defendant sent an email to Kim Mills, Chairman of the College’s Computer Department, stating `I want you to suffer the hardest death'.

Finally, on March 12, 2007, defendant sent an email to VanRiper stating `Do you think [the Morrisville Police] can protect you from a man who wants to die and want to kill you? Asshole, for sure you will be killed by such a man.’

U.S. v. Li, supra. There were more like those.

In Li, the threat issue is pretty straightforward because he emailed people and told them he was going to kill them. As the Alkhabaz court noted, the definition of a threat has always been based on that direct communication with the victim; it’s considered to be one reason why we criminalize threats, i.e., telling someone you’re going to harm them causes injury in its own way.

Voneida didn’t send his statements to anyone . . . which seems to me more like Alkhabaz than like Li.