Under the name "Foss Dark," University of Washington student Keshav Bhide posted:
Everything Elliot did is perfectly justified.
I live in Seattle and go to UW, that's all (I'll) give you. (I'll) make sure I kill only women, and many more than what Elliot accomplished.
Has he committed criminal cyberstalking or felony harassment as Washington authorities contend? Would the First Amendment countenance these charges?
Probably not.
Let's first tackle Washington's cyberstalking law. Under Washington law, "a person is guilty of cyberstalking if he or she, with intent to harass, intimidate, torment, or embarrass any other person, and under circumstances not constituting telephone harassment, makes an electronic communication to such other person or a third party:
(a) Using any lewd, lascivious, indecent, or obscene words, images, or language, or suggesting the commission of any lewd or lascivious act;
(b) Anonymously or repeatedly whether or not conversation occurs; or
(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.
Like many state cyber stalking statutes, Washington law only applies to electronic communications sent directly to the victim or a third party. It seemingly does not apply to Behide's YouTube videos and message board posts. We saw charges struck down in the New York case against Ian Barber for much the same reason.
What about the harassment statute? Bhide likely has been arrested under Washington's malicious harassment law. Under that law, a person is "guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim's race, color, religion, ancestry, national origin, gender, sexual orientation, or mental or physical, or sensory handicap, including threats to a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property."
Bhide threatened a group of persons due to their gender; women could be put in reasonable fear of harm to their person. He put up his posts just following a university shooting in Seattle in which two students were killed; his posts clearly state that he goes to UW and lives in Seattle. Does the harassment law cover threats to all women? As he wrote, "I will make sure I kill only women." Does the statute cover general threats of violence as to groups rather than specific groups of individuals (say, the women of a specific named sorority)?
Courts have upheld threat and cyberstalking convictions involving threats of violence concerning groups. In the Syring case, the defendant threatened "a dead Arab is a good Arab." Similarly, in United States v. Johnson, the defendant warned that "all Latinos will die." In both cases, however, the threats were made to specific individuals, not all Arabs or Latinos in general. In Syring, the defendant sent threatening emails and made phone calls to individuals working for an Arab-American organization. In Johnson, the defendant sent threatening, anonymous emails to individuals working for a Hispanic civil rights organization. It is difficult to imagine threat charges sticking to a general threats to kill women in Seattle when the threats are not more specifically aimed at a particular group of women.
What about the First Amendment analysis? As Forbes writer Kashmir Hill insightfully discussed this week, the Supreme Court has agreed to hear a case about whether in threat cases, the First Amendment requires proof that the defendant subjectively meant to convey a threat of violence, that is, to put someone in fear of physical harm, or if it is sufficient that a reasonable person would understand the threat as a credible, true threat.
Just to step back a bit, certain categories of low-value speech can be regulated due to their propensity to bring about serious harms and slight contribution to free speech values. They include true threats—speech intended to convey a serious intent to hurt another person (the subjective test) or that a reasonable person would interpret as expressing a serious intent to cause bodily harm (the objective test). The First Amendment does not protect true threats because of their minimal contribution to public debate and their infliction of serious harm. True threats generate profound fear of physical harm that disrupts victims’ daily lives. When faced with credible threats, victims change their routines for their own physical safety. In this way, credible threats are tantamount to coercion. As Professor Kenneth Karst explains, legal limits on someone’s liberty to threaten another person ultimately defend the victim’s liberty.
In Virginia v. Black, the Court held that cross burning is a constitutionally unprotected “virulent form of intimidation” if it is targeted at particular individuals and done with intent to instill fear of physical harm. The Court underscored that speakers need not intend to carry out the threat because the true threats exception protects individuals from the fear of violence, the disruption that such fear engenders, and the possibility that violence will occur. The Court contrasted cross burning done to convey a hateful ideology at a Klan rally, where specific individuals are not targeted. In that context, cross burning constitutes protected expression. As the Court emphasized, individuals have the right to express hateful views but not to make true threats.
The take-away from Virginia v. Black and from cases like the Nuremberg Files may be that true threats have to concern specific individuals in groups, not just groups generally. To be sure, in this context, Bhide's threats to all Seattle-area women may engender the sort of fear and disruption that proscribable threats do. Recall that days before the defendant posted the threats, there was a school shooting in Seattle. Then too he said he wanted to imitate Roger in murdering female university students. Nonetheless, that seems the weaker argument given that we consider true threats in light of the principle that debate on public issues must be robust and that chilling is a concern when it comes to all sorts of offensive speech, including hateful speech and speech calling for non-imminent violence. We shall see.
