Electronic Frontier Foundation, in an op-ed by Hanni
Fakhoury and Jamie Williams, has discussed a case in New York City with some
parallels to the issue of my own content when I was working in 2005 as a
substitute teacher, explained in detail on this blog July 27, 2007 (with a link
to Wordpress where there more computer forensic evidence is shown in detail). The link for the story, with important
sublinks for amicus briefs, is here. EFF calls this a "thoughtcrime" (or is it "pre-crime", like in the film "Minority Report"?)
The case at hand is United States v. Gilberto
Valle. The defendant had been a New York
City police officer and was convicted of violating the Computer Fraud and Abuse
for using a NYPD database for non-business purposes. That may be justifiable - certainly
termination would make sense, although EFF has also argued that violating an
employer’s computer use policy should not itself be a prosecutable crime. But he was also prosecuted for conspiracy to
kidnap for statement he had made in chat rooms or on websites devoted to
fetishism, especially cannibalism.
Speech that actually conspires to commit a crime is,
of course, not covered by First Amendment protection. The problem here seems to be whether that was
the “intent” or “purpose” of the defendant’s speech, and particularly whether
other visitors would likely perceive criminal conspiracy and participate.
A jury convicted the defendant of conspiracy, and then
the trial court decided to vacate the verdict, but the government appealed to
the Second Circuit.
In the video below, note the emotion (and sense of being offended) of the speakers,
and the unwillingness to consider whether this was just “fantasy”.
There seem to be two elements here. One is broad context; statements need to be
compared to the totality of a speaker’s content, at least insofar as it is
likely to be found. The other is a narrower notion of contest, as to whether a
visitor knows that this is fantasy or fiction.
Eugene Volokh at UCLA (“The Volokh Conspiracy” ) and the Scott and Cyab Banister First Amendment Clinic at UCLA contributed.
In my situation, there was another element: whether
fiction could be interpreted as predictive of real life, particularly if a
character were recognizable. The
protagonist in the screenplay treatment (“The Sub”) arguably closely resembled
me. Since both resources that EFF used
come from California, those resources are probably familiar with Bindrim v.
Miller (1979). However, that case would
not be precendential in New York (or Virginia in my case) or at the federal
level, although arguments made in the case could be useful. In the screenplay, the male substitute teacher
allows himself to be “seduced” (so to speak) by an unusually precocious but
legally underage male high school student. I’ve discussed it here as an “implicit content”
problem: would a (minor) visitor
interpret my “purpose” (a word in Virginia computer law) as enticing him to try
to duplicate the plot of the screenplay?
Of course, this idea has been done in commercial film
(Lionsgate/Lifetime’s “Student Seduction” in 2003, Movies blog May 4, 2010) and
incidents like this (usually heterosexual) have occurred all over the country
since then, resulting in teacher firings and sometimes prosecutions. But then there is a “conflict of interest”
problem as to whether an employee (like a public employee) could be prohibited
from speaking about an issue like this in the open (without a gatekeeper)
because of the “implicit content” problem (which, by the way, got mentioned in
the COPA trial in 2006, the day I was there). Theoretically, my legal position might be sounded if the piece had been paid for by someone else (had been written for compensation), which is ironic.
In my case, I was “banned” from the school, but
allowed to continue subbing everywhere else, after the school district reviewed
some of my other material and determined the “context” of the speech (the fact
that I had authored books on gays in the military, etc). But, Volokh argues that a reader should know
even from visiting a single web page, in many cases, that the material is
fiction or fantasy (but then, at least in California, does Bindrim matter?)
I eventually left subbing (in 2007) and now have made “The
Sub” (a short) a backstory (at a “fiction” level) of a feature screenplay now
called “Do Ask, Do Tell: Conscriptied”
It is taking a long time to develop it.
There have been serious comspiracy cases in pre-Internet days. In 1988, some people were arrested in Richmond VA for trying to make a "snuff" film.
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