"True Threats" - Revisited

Last year, I did a post about a case in which a college student was charged with violating 18 U.S. Code § 875(c).

I explained that § 875(c) makes it a federal crime to transmit a “threat . . to injure the person of another” via interstate commerce, and using the Internet satisfies the Internet commerce element of the offense. I noted that the only open question was whether the content the student put online qualified as a threat, or what the law calls a “true threat.”

I also explained that the U.S. Court of Appeals for the Sixth Circuit held, in U.S. v. Alkhabaz, 104 F.3d 1492 (6^th Cir. 1997), that a University of Michigan student’s posting violent sexual fantasies online was not a “true threat” . . . even though the student who wrote and posted the stories gave the victim the same name as one of his classmates. The student this post is about attended a university in Pennsylvania. In my previous post on the Pennsylvania case, I speculated as to whether the student’s conviction might be overturned on appeal given that the Pennsylvania case has some things in common with the Alkhabaz case.

It didn’t turn out that way: On July 15, the U.S. Court of Appeals for the Third Circuit affirmed Steven Voneida’s conviction for violating 18 U.S. Code § 875(c). U.S. v. Voneida, 2009 WL 2038633 (2009). In appealing his conviction, Voneida argued that

his statements were not “`hreats,’ were never transmitted to anyone, and there was `no imminent prospect of execution.’ Instead, he contends, they were more akin to `a college student's unfledged attempt at counterculture humor.’

U.S. v. Voneida, supra. The Court of Appeals didn’t agree. It found the evidence was sufficient to support Voneida’s conviction for using interstate commerce to transmit a “threat” to injure another person or persons. It first addressed the content of the material Voneida posted online:

Two days after the tragic shootings at Virginia Tech, Voneida, a student at the Harrisburg campus of Penn State University, posted several statements and pictures to different parts of his internet MySpace page that were the subject of his conviction. These statements and pictures included: `Someday: I'll make the Virginia Tech incident look like a trip to an amusement park’; `the weary violent types who are sick of self-righteous, lecherous, arrogant, and debauched attitudes displayed by [A]merican youth would band together with me for a day, and allow everyone at schools and universities across the nation to reap the bitter fruit of the seeds that they have been sowing for so long’; expressed `shock[ ]’ that after the Virginia Tech shootings his classmates `were actually surprised that there are people out there who would shoot them if given the opportunity’; `lost my respect for[ ] the sanctity of human life’; captioned a posting `Virginia Tech Massacre-They got what they deserved,’ where he noted his current mood was `extatically [sic] happy,’ and included a poem dedicated to the Virignia Tech shooter that concluded that the shooter's `undaunted and unquenched’ wrath would `sweep across the land’; and a picture of the bloodied Virginia Tech shooter holding two guns superimposed on a cross with the words `martyr,’ `massacre,’ `enrage,’ and `recompense.’

U.S. v. Voneida, supra.

The court noted that “some of the statements, taken in isolation, may not rise to the level of a threat within the meaning of § 875(c),” but found that “was not the context of the case here.” U.S. v. Voneida, supra. It found a rational jury could reasonably construe the statements “that were made only two days after the Virginia Tech shootings, specifically the comment about making Virginia Tech look like `a trip to an amusement park,’ as a serious intention to inflict bodily harm.” U.S. v. Voneida, supra.

The Court of Appeals also rejected Voneida’s argument that the statements were never

transmitted because his postings were more like a hand-written diary also fails. Section 875(c) requires that the communication be transmitted in interstate commerce. For other MySpace users to view the statements posted to various parts of Voneida's MySpace page, the postings had to pass through the main internet server, located in California. Further, the `amusement park’ statement and others were posted to Voneida's MySpace `bulletin board,’ which was set to send out update notices to members of his `buddy’ list when he added new information. And, those with access to Voneida's MySpace page could respond to his statements by posting their own comments on his page. Given these facts, we conclude that a rational jury could have determined that the offending statements met this element of the statute.

U.S. v. Voneida, supra.

Finally, the Court of Appeals rejected Voneida’s argument that to violate § 875(c), the prosecution had to prove the threat was “imminent,” i.e., that Voneida intended to implement what he posted online:

[T]here is no requirement in the statute of proof of imminency to make a threat real. In proving that Voneida's statements were threats, the Government `bore no burden of proving that [Voneida] intended his [statements] to be threatening or that he had an ability at the time to carry out the threats.’

U.S. v. Voneida, supra. The Court of Appeals therefore affirmed Voneida’s conviction, which means he’ll have to serve the sentence of 19 months in prison the district court imposed on him. U.S. v. Voneida, supra.

I don’t know if I agree with the Court of Appeals. Until I read the opinion, I hadn’t known about some of the comments Voneida posted on his MySpace page . . . and I admit some of them are pretty disconcerting. I think what bothers me about the opinion, and the conviction, is that the facts in the case differ in one important respect from traditional threat cases.

As I believe I noted in my earlier post on this case, the usual dynamic of a threat crime is that the perpetrator (the “threatener”) directly transmits the threat to the victim. That’s always been an essential element of the crime, and it’s one of the reasons criminal law can criminalize threats without violating the 1^st Amendment. A threat is, after all, speech, which means it’s protected by the 1^st Amendment unless some circumstance deprives it of that protection.

Historically, courts held that threats could be criminalized under either or both of two rationales: One is that a threat causes emotional “harm” to the victim, which is usually what the threatener intends to do. The premise here is that unlike regular speech – which can offend us or make us uncomfortable -- a threat inflicts an aggravated level of emotional “harm” which justifies criminalizing the act of making a threat.

The other rationale is that a threat can be seen as an initial step toward carrying out the threatened act of killing or injuring another person or persons. The premise here is that by making a “true threat,” you’ve shown that you’re dangerous, so the law can intervene to prevent you from carrying out what you have, in effect, promised to do.

Here, as far as I can tell, Voneida never directly transmitted his concededly unsettling comments to an intended victim. Instead, like Alkhabaz, he broadcast them to a rather undifferentiated audience. Also, as the Court of Appeals implicitly conceded, there doesn’t seem to have been much, if any, evidence that he actually intended to do the things he wrote about. That, again, reminds me of Alkhabaz.