Do criminal suspects have First Amendment rights when they engage in alleged fantasy role playing games that include killing and cannibalism of real people? That’s a question one judge recently decided in a sensational trial dubbed the “Cannibal Cop” case by the New York media.
The New York media, in particular, devoted a lot of time to the case and at one point, The Wall Street Journal asked the noted First Amendment attorney Floyd Abrams for his opinions. And the seriousness of making online threats – and claiming they weren’t meant as literal – will be the subject of a big Supreme Court case next year.
The current case involving Gilberto Valle, 30, a former New York City police officer, has been in the news since 2013, when a jury found him guilty on kidnapping conspiracy charges and a charge of illegally gaining access to the law enforcement databases.
Last week, an appeals judge threw out the guilty verdict on the kidnapping conspiracy charges, agreeing in part with an argument from Valle’s lawyer that Valle had a constitutional right to fantasize.
The prosecution had successfully argued in the first trial Valle had taken concrete steps to make his online talk about killing and eating women a reality by using computers to get data on real-life people he knew directly or indirectly.
But in his 118-page opinion, Federal District Court judge Paul G. Gardephe said he didn’t see enough evidence that nearly a year of online talk from Valle translated to a tangible threat.
“This is a conspiracy that existed solely in cyberspace,” Gardephe said. “The nearly yearlong kidnapping conspiracy alleged by the government is one in which no one was ever kidnapped, no attempted kidnapping ever took place, and no real-world, non-Internet-based steps were ever taken to kidnap anyone.”
Julia Gatto, Valle’s attorney, said Gardephe made the right decision. “As Judge Gardephe has validated, we don’t put people in jail for their thoughts. We’re not the thought police, and the court system is not the deputies of the thought police,” she told reporters.
The case had been closely watched not only for the sensational nature of the charges, but for its broader constitutional implications.
Abrams, the noted constitutional attorney, told The Journal that Gardephe’s decision didn’t directly address First Amendment issues, but its conclusion supported free speech rights.
The judge's "conclusion that even the vilest fantasies exchanged in cyberspace cannot be actionable unless there is hard evidence of an intent to commit criminal acts affords a good deal of the same breathing room for speech that the First Amendment protects," Abrams told the Journal.
Clay Calvert, a constitutional law professor at the University of Florida, told NBC News that the Valle decision had some legal weight.
“They are not bound to follow this line of reasoning in other districts, but it certainly puts it down on paper for the first time,” Calvert said. “There is a line of reasoning about the Internet here that is important. Prosecutors might look at that and say ‘We need to get more evidence before we go further.’”
The case coming to the Supreme Court in its next term, which starts in October 2014, is called Elonis v. United States, and it is about a man who made what were perceived at threats on Facebook, couched in the structure of rap lyrics.
The Court will consider if a conviction of threatening another person requires proof of the defendant's “subjective intent” to threaten. In this case, the Elonis case gets into an important First Amendment question about “true threats,” which was also a component of the Valle case.
Under First Amendment precedents, if speech is considered a "true threat" by a reasonable person, it is not protected.
Anthony Elonis was convicted on charges related to Facebook posts that were directed at his estranged wife and police, among other parties. He was convicted in 2011 on four counts of transmitting threatening communications in interstate commerce, and sentenced to 44 months in prison.
Elonis claims he was engaging in protected free speech and his electronic messages were "inherently susceptible to misinterpretation."
Scott Bomboy is the editor in chief of the National Constitution Center.
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