Postscript

In my last post I talked about Steven Voneida.

He's the student who was convicted of violating 18 U.S. Code § 875(c), which makes it a crime to send a threat via interstate commerce.

As I explained in that last post, Voneida was prosecuted for putting a poem about the Virginia Tech shooter and related materials on his MySpace page. One of the comments on the page apparently said the victims of the Virginia Tech massacre “got what they deserved.”

If it is true, then all of that is, of course, completely incomprehensible and awful. The question, as I noted in my last post, is whether it is really a “threat.” As I noted in that post and in an earlier one in which I talked about the Alkhabaz case, a threat (or what the law calls a “true threat”) is words or conduct that are directed at another person and directly or indirectly indicate “menace,” i.e., that you intend to do them harm. A threat, then, is kind of like a promise – it’s a statement of an intention to do something to someone(s).

As I explained in the older post, in the Alkhabaz case he wrote horribly violent fantasies that featured what seemed to be a classmate of his at the University of Michigan. She saw them, was horrified and terrified, as was everyone else who saw them. Alkhabaz was also charged with violating § 875(c), for “threatening” his classmate. Two federal courts threw the charges out, as I explained in that post, because they concluded the fantasies were not a threat. He posted them online in a discussion form for people who were into that kind of thing, and there was absolutely no evidence he ever intended for her to see them. So he didn’t direct the content of the fantasies at her; if he had, that would have been a threat, because it could be seen as an implicit promise that “I’m going to do these things to you, at some point.”

As I noted in my last post, it seems to me the Voneida charge has much the same problem, only more so. He didn’t sent what he wrote to anyone at his University, or at any other University. He posted it online, just like Alkhabaz. In a sense, his case is even less like the traditional threat dynamic (which I illustrated in my last post) because unlike Alkhabaz, Voneida’s comments didn’t focus on a particular person or even, as far as I can tell, on a particular campus.

In both instances, they said awful things (awful in different ways) but did not direct those awful things to a specific target . . . a putative victim. As we’ve seen, directing an implicit or explicit promise to do “harm” to someone (or something) is an essential element of the crime of “threatening.” And since § 875(c) is simply a federalized threat statute (the only importance of the interstate commerce requirement is to confer federal jurisdiction to take the case), that element is an essential part of the offense it creates, as well.

I pretty much said all of that in those two prior posts. What I want to talk about here is something I’ve been thinking about since I wrote that last post.

Assume, for the sake of argument, that I’m right and what Voneida did doesn’t constitute a threat under § 875(c); a court throws out the charges because it finds there was no “true threat.” The issue I’ve been thinking about is whether we COULD create a crime that would encompass the “harm” Alkhabaz and Voneida allegedly inflicted,without, of course, violating the First Amendment. (If we decide we could create such a crime, we’ll consider whether we should.)

What would the “crime” be? In Alkhabaz-style scenarios it would presumably be using a real person, who is known to the author, in violent fantasies or in otherwise offensive content that was published online. The content could be textual or visual; we might have a twenty-first century Alkhabaz who created movies, using morphing techniques, that showed horrible things happening to the real-life person he chose to feature in them.

It seems to me that a “crime” like that really targets the misappropriation of someone’s identity. Not the kind of identity theft we already prosecute, which is simply a version of fraud; you steal someone’s personal information so you can use it to buy things or sell it for money to people who will use it to buy things. Here, it seems to me that the crime is using the victim’s identity – their persona – without their knowledge and permission. The theory would be that our identities – mine, yours, everyone’s – is in a sense property, intangible property that to an extent “belongs” to us, individually. So if someone takes my identity and uses it in a violent or otherwise offensive fantasy, that becomes a crime. (If the fantasy or other content is defamatory, that’s another issue, as I’ve noted in an earlier post.)

In the U.S, the law of many (maybe most) states establishes a civil property right known as the right of publicity. This right, as its name implies, means that you control the use of your identity for commercial purposes. The commercial purposes element goes back to early last century, when a famous law review article and other efforts resulted in the development of a legal theory which says, essentially, that a commercial venture cannot use your identity for free and make money off of it. If they want to use your identity (your image, usually) to make a profit, then they have to get your permission, which usually means paying you for its use.

As far as I can tell, no state has adopted a criminal version of the right of publicity. I find state statues that impose criminal penalties for violating the civil right of publicity, but none that create what is, in essence, a non-commercial right of publicity offense.

Is this something we should explore? I don’t know. One argument against it is that this might not be an area where we need criminal sanctions. Maybe civil liability is enough, especially if we expanded the right of publicity so that it encompasses non-commercial publication, as well. Another factor that might militate against adding a crime like this is the problem of creating too many crimes; law enforcement has limited resources, and simply cannot enforce everything we can come up with.

Another issue is the need to be sure the crime doesn’t violate the First Amendment. After all, making it a crime to use someone’s identity in something you post online could functionally criminalize what the press does. If we were to embark on this path, we’d have to figure out a way to define what makes using someone’s name or image in content posted online makes it a crime and what only warrants the imposition of civil liability (if that).

Let’s try the harder case, the Voneida case (harder if I’m right and it really isn’t a § 875(c) “true threat” case). There’s no appropriation of anyone’s identity here. What we have here is the posting of awesomely insensitive comments glorifying what a mentally disturbed killer did at Virginia Tech. So what’s the “crime?” What’s the “harm” and who’s the victim?

If it’s a threat, the victim is the person or persons at whom the threat is directed. So, if Voneida had, hypothetically, posted comments saying he was going to repeat the Virginia Tech shootings on his own campus, that, I think, could be considered a threat . . . a threat to the entire populace of the campus, including the administrators charged with keeping people safe.

But he didn’t do that. He basically (as far as I can tell) seems to have posted a fan letter to the Virginia Tech shooter. I just don’t see that as a threat . . . and I’m not sure I see how we can make doing something like that a crime of any kind without violating the First Amendment. Sure, what he said is cruel and awful and unbelievably misguided . . . but the First Amendment guarantees us the right to say things we shouldn’t.

I guess I don’t have any answers. Maybe this is an area where we don’t need new answers.