Saturday, March 21, 2015

"Fantasy" case for New York City police officer raises serious "implicit content" questions; when is the "purpose" of speech actual conspiracy?

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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