Baker case

Over the past few weeks, I have been reading the book, "Sex, Laws  and

Cyberspace." by Jonathan Wallace and Mark Mangan.  It covers many of the

free speech issues which we have discussed in class.  Several of the
cases are discussed in depth.  

Today, Joey posted a article about the final dismissal of the Jake Baker

case.  To me, this article carried the implication that the U.S. courts
have decided that what Baker did might not be to everyone's taste, but
that it was within the law, and should be allowed on the grounds of
first amendment rights.  

However, 'Sex, Laws and Cyberspace' points out that this is NOT the
case. In the below article, Jonathan Wallace reports that the judge
ruled that charges against Baker were a fit subject for University
disciplinary action.  (The book states that the university suspended
Baker, with "strict instructions not to re-enter the university
grounds.He did it without a hearing before the student courts, citing
the little-used Regents Bylaw 2.01, which gave him such authoprity in
the name of maintaining "health, diligence, and order among the
students."" p 67).  This suspension and ban have been upheld, through
the various court battle, I believe.  

In short, while an objectionable posting may not be a violation of U.S.
law, it may be a violation of institution rules and can be dealt with as
such.  I would agree with Paul Jones that I do not want to be in the
position of reading and censoring alt.sex files.  However, assuming that
any of us ever find ourselves in the position of running a server where
we are made aware off someone doing something obviously illegal, or
ethically vile (planning the torture and mutilation of a fellow
student), I think it is a good thing to keep in mind that it is possible
to say, "no".


The Ethical Spectacle, July 1995, 

By Jonathan Wallace

Jake Baker

Jake Baker, a college student at the University of Michigan, was a

regular poster to an

alt.sex newsgroup. His contributions consisted of short stories about

the rape, torture and murder of women. When he wrote a story describing

a classmate and using her real name, the University found out and

expelled him and federal agents raided his house and arrested him.

Copies of email Baker had exchanged with a pseudonymous Canadian were

found, planning to meet in Ann Arbor the following summer to commit

rapes and murders together.

Baker was indicted in federal court for threatening his classmate. The

indictment was later revised to drop the charges based on the newsgroup

posting and to rely on the threats to unspecified victims made in the

email Baker exchanged with the Canadian. Late in June, a federal judge

dismissed charges against Baker, holding that his acts, while a fit

subject for University disciplinary action, were not a federal crime. 

The only cyberspace issue in the Jake Baker case involves persuading the

authorities that there is no cyberspace issue.

As I say later in this issue, cyberspace requires very little new law.

Most issues arising there can be resolved with resort to existing

precedents. On most matters, the denizens of cyberspace should be

treated exactly like anyone else, not worse, not better.

The Jake Baker case would be legally identical if Baker had distributed

his stories as leaflets handed out on street corners or posted on a

corkboard in the dormitory hallway. The fact that he distributed his

material via a Usenet newsgroup does not change anything. If the

material was legal offline, it is legal online; if it was illegal

offline, it is, of course, illegal online as well. There is simply no

cyberspace issue here.

(If the House agrees to the Communications Decency Act just passed by

the Senate, ignore my previous statement; the law constitutes an

endorsement of the idea that materials legal offline could be illegal


Baker was charged under a law that prohibit the use of interstate

communications to make a threat. Had he written a letter to his

classmate Jane Doe, or sent an open letter to a newsgroup that he knew

included her, there is little doubt that he would have fallen afoul of

this law. Because he included Jane Doe as a character in one of a series

of stories he posted to an alt.sex newsgroup--the rest of which

apparently dealt only with fictional characters--and because it was not

clearly foreseeable that the story would come to Ms. Doe's attention, it

is hard to characterize this as a threat. As for the mail he exchanged

with his Canadian correspondent, there appears to have been no overt act

in connection with this conspiracy other than the email itself;

therefore this appears to be a very weak case. From this point of view,

the authorities may have acted prematurely; surveillance until the

Canadian (who apparently used an alias and has not been identified)

showed up might have resulted in a more solid case. But the Canadian may

never have showed up, because, as we all know, there is a lot of talk,

little action, on Usenet. Since the Oklahoma City bombing, there has

been a lot of attention paid to calls for violence, and the exchange of

bomb recipes, in Usenet newsgroups; if each of these were a crime, we

could fill the prisons full of Internet users.

This is an important point. Federal threat laws are intended to protect

individuals from harassment via mail and telephone calls. A threat

issued, a la Gordon Liddy, against unspecified individuals probably does

not qualify. Similarly, conspiracy laws require an overt act because

Americans tend to sit around envisioning all kinds of crimes they have

no intention of committing; there are not nearly enough prisons in

America to lock up every citizen who ever, in a private conversation,

called for the assassination of a politician he or she did not like. In

both cases, the laws are designed to define

the border between protected and unprotected speech. You have a first

amendment right to say some very repulsive things; but you may not be

able to say them standing in front of the house of your enemy, when your

audience is holding Molotov cocktails in their hands.

Jake Baker may not have crossed this line. He certainly sailed very

close to it, and if he sailed over it as far as his story was concerned,

it can only be on the grounds that the story was intended as a threat

against Ms. Doe. His mail to his Canadian friend is pretty specific

about where and when to find victims--catch a woman in the bathroom on

his hallway late at night, and carry her out of the dorm in a portable

locker--but does not name anyone. Again, there is a lot of this kind of

talk in this country and in the world, which does not result in any

action and is never intended to. Elsewhere, I

have written about (and since alluded many times to) gun advocates'

statements envisioning the murder of Mrs. Brady of Handgun Control. I

have labelled this despicable discourse and called for its condemnation,

but I have never suggested that these individuals should be prosecuted

either for threatening Mrs. Brady or for conspiring to harm her. Yet in

both the statements that I quote, the spokesmen (one an NRA board

member, the other a conservative talk show host) name Mrs. Brady and are

quite specific about the manner in which she should be killed. There is,

in fact, no legal or moral distinction between these statements and Jake

Baker's story, and if these gun advocates were charged, doubtless they

too would defend themselves on the grounds that they

were just fantasizing.

Jake Baker is a sick puppy. Obviously, he finds fantasizing about rape,

torture and murder to be richly rewarding, and enjoys discussing these

fantasies with other people. His mail to his Canadian friend suggests

that he was either quite serious, or at least half serious, about

getting together to turn fantasy into action--perhaps if the two men had

met, they would have worked each other up to it. Perhaps Baker would

have worked himself up to it on his own, and perhaps he still will,

despite this wake up call. But being a latent murderer is not a crime in

this country, and neither should it be,

because of the problems of proof and the fact (as I wrote in my

Auschwitz essay last month), that in one sense we are all latent

murderers. People are always shocked that the law punishes far more than

it prevents, but there is no way to prevent the first murder by the

incipiently murderous without rounding us all up and subjecting us to

psychological testing, and then you will lock up many non-murderers as


I anticipate what Professor Catherine Mackinnon of the University of

Michigan and many others would say to this. "Do you mean that a Jake

Baker can walk around saying that he hates women, regards them as

objects for his use, and plans to rape, torture and kill them, and

nothing can be done until he actually kills someone?" This is not what I

mean. You can expel Jake Baker from school (which he was) the same way

that you would expel a racist or someone else who could not live by the

University's code of ethics demanding the treatment of classmates with

respect. You can ostracize Jake Baker, post his picture all over campus,

warn people against him and educate the world (truthfully) about his

predilections. You might even be able to obtain a civil protective order

against him, keeping him away from the campus or out of town. But I do

not think you can lock him

up--unless you are willing to lock up Gordon Liddy, half the NRA board,

hundreds of talk radio hosts and thousands of other Usenet posters as

well. And that would still only be the tip of the iceberg.

There is one other set of issues here. Baker named a classmate in his

story. Since then, the world has protected her by calling her Jane Doe.

Professor Mackinnon, who counselled her, has talked to the world about

the Baker case, but Jane Doe herself, as far as I know, has never

spoken. With all respect to her right and desire to remain private, this

again permits, even encourages, the curious phenomenon that the

perpetrator is real but his victim is not. Anyone who has read the now

widely distributed version of the story (with Ms. Doe's real name edited

out) knows everything about Ms. Doe's appearance, and how Baker would

expect her to react if tortured with a curling iron, and

nothing about Ms. Doe. Her silence allows the very phenomenon that

Mackinnon has identified and rails against in her writings (see Only

Words , 1995): women are perceived an inferior class, objects who

cooperate passively in the violence against them. Only by refusing to

take refuge in silence and anonymity, by declaring their own reality and

forcing the world to perceive them as people, do the victims of sexual

violence refuse to be victims or to be perceived (as Mackinnon would put

it) as sex and nothing else.