Making Womans Place Explicit_pornography Violence And The Internet

Making Women's Place Explicit: Pornography, Violence, and the Internet This module was composed by Jennifer Nash The most visible way in which the Internet has enabled violence against women by allowing for the proliferation of pornographic images. In this module, we will examine the creation, consumption, and content of Internet pornography in order to understand the Internet's role in the perpetuation of violence against women. Using feminist critiques of pornography as a background, we will delve into an analysis of Internet pornography as a business and examine the ways in which this enormous industry has profited from distributing sexist and violent images. Furthermore, we will look at the ways in which the Internet enables violence against children through allowing the anonymous circulation of child pornography. Specifically, we will learn about the virtual child pornography case that the Supreme Court just decided. Finally, we will discuss the recent cases of sex abuse involving priests and child pornography. Readings: 1. Case Study: Virtual Child Pornography 2. Child Pornography 3. Pervasive, Popular, Profitable and Private: The Economics of Internet Pornography 4. The Civil Rights Approach 5. The Internet, Pornography, Race and Representation 6. Violent Repercussions of Pornography (Intro)

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I. The Role of Pornography in Predisposing Some Males to Want to Rape II. The Role of Pornography in Undermining Some Males' Internal Inhibitions Against Acting out the Desire to Rape III. Constitutional Language Case Study: The Jake Baker Case and Violence Against Women on the Internet Discussion Questions

Case Study: Virtual Child Pornography 9.

On April 16, 2002, the Supreme Court struck down Congress' ban on virtual child pornography (Child Pornography Prevention Act) asserting that The First Amendment protects pornography using virtual images of children. The Court expressed a number of interesting concerns. First, there was a concern that the ban on virtual child pornography would have harmful effects on non-pornographic work. In fact, the Court specifically mentioned the movies American Beauty, Traffic, and Lolita. Each film depicts sex scenes with minors. The court was concerned that acclaimed movies containing sex scenes with actors who either are minors or presumably minors would be banned by the Child Pornography Prevention Act. Furthermore, the Court was presumably unconvinced by studies linking consumption of child pornography and the sexual abuse of children. The Court noted that, "There are many things innocent in themselves,

… such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused." Because the potential harm in virtual child pornography does not stem from its production and because of a desire to protect free speech, the Court determined that Congress' ban on virtual child pornography was overbroad and unconstitutional(See also http://www.nytimes.com/2002/04/17/national/17P ORN.html for more about the decision.). Consider this excerpt from The Supreme Court's decision. 10. JOHN D. ASHCROFT ATTORNEY GENERAL, et al., PETITIONERS v. THE FREE SPEECH COALITION et al. No. 00-795 United States Supreme Court. Argued October 30, 2001 Decided April 16, 2002 11.JUSTICE KENNEDY delivered the opinion of the Court. 12. We consider in this case whether the Child Pornography Prevention Act of 1996 (CPPA), abridges the freedom of speech. The CPPA extends the federal prohibition against child pornography to sexually explicit images that appear to depict minors but were produced without using any real children. The statute prohibits, in specific circumstances, possessing or distributing these images, which may be created by using adults who look like minors or by using computer imaging. The new technology,

according to Congress, makes it possible to create realistic images of children who do not exist. … 13.The principal question to be resolved, then, is whether the CPPA is constitutional where it proscribes a significant universe of speech that is neither obscene … nor child pornography. 14.

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Before 1996, Congress defined child pornography as … images made using actual minors. The CPPA retains that prohibition at 18 U. S. C. §2256(8)(A) and adds three other prohibited categories of speech, of which the first, §2256(8) (B), and the third, §2256(8)(D), are at issue in this case. Section 2256(8)(B) prohibits 'any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture' that 'is, or appears to be, of a minor engaging in sexually explicit conduct.' The prohibition on 'any visual depiction' does not depend at all on how the image is produced. The section captures a range of depictions, sometimes called 'virtual child pornography,' which include computer-generated images, as well as images produced by more traditional means. For instance, the literal terms of the statute embrace a Renaissance painting depicting a scene from classical mythology, a 'picture' that 'appears to be, of a minor engaging in sexually explicit conduct.' The statute also prohibits Hollywood movies, filmed without any child actors, if a jury believes an actor 'appears to be' a

minor engaging in 'actual or simulated ... sexual intercourse.' §2256(2). 16. These images do not involve, let alone harm, any children in the production process; but Congress decided the materials threaten children in other, less direct, ways. Pedophiles might use the materials to encourage children to participate in sexual activity. '[A] child who is reluctant to engage in sexual activity with an adult, or to pose for sexually explicit photographs, can sometimes be convinced by viewing depictions of other children 'having fun' participating in such activity.' Furthermore, pedophiles might 'whet their own sexual appetites' with the pornographic images, 'thereby increasing the creation and distribution of child pornography and the sexual abuse and exploitation of actual children.' Under these rationales, harm flows from the content of the images, not from the means of their production. In addition, Congress identified another problem created by computer-generated images: Their existence can make it harder to prosecute pornographers who do use real minors. As imaging technology improves, Congress found, it becomes more difficult to prove that a particular picture was produced using actual children. To ensure that defendants possessing child pornography using real minors cannot evade prosecution, Congress extended the ban to virtual child pornography. 17.Section 2256(8)(C) prohibits a more common and lower tech means of creating virtual images, known as computer morphing. Rather than creating original images, pornographers can alter

innocent pictures of real children so that the children appear to be engaged in sexual activity. Although morphed images may fall within the definition of virtual child pornography, they implicate the interests of real children. Respondents do not challenge this provision, and we do not consider it. 18. Respondents do challenge §2256(8)(D). Like the text of the 'appears to be' provision, the sweep of this provision is quite broad. Section 2256(8)(D) defines child pornography to include any sexually explicit image that was 'advertised, promoted, presented, described, or distributed in such a manner that conveys the impression' it depicts 'a minor engaging in sexually explicit conduct.' One Committee Report identified the provision as directed at sexually explicit images pandered as child pornography. ('This provision prevents child pornographers and pedophiles from exploiting prurient interests in child sexuality and sexual activity through the production or distribution of pornographic material which is intentionally pandered as child pornography'). The statute is not so limited in its reach, however, as it punishes even those possessors who took no part in pandering. Once a work has been described as child pornography, the taint remains on the speech in the hands of subsequent possessors, making possession unlawful even though the content otherwise would not be objectionable. 19.Fearing that the CPPA threatened the activities of its members, respondent Free Speech Coalition and others challenged the statute in the United States District Court for the Northern

District of California. The Coalition, a California trade association for the adult-entertainment industry, alleged that its members did not use minors in their sexually explicit works, but they believed some of these materials might fall within the CPPA's expanded definition of child pornography. … 20.II 21.

The First Amendment commands, 'Congress shall make no law ... abridging the freedom of speech.' The government may violate this mandate in many ways, but a law imposing criminal penalties on protected speech is a stark example of speech suppression. The CPPA's penalties are indeed severe. A first offender may be imprisoned for 15 years. A repeat offender faces a prison sentence of not less than 5 years and not more than 30 years in prison. While even minor punishments can chill protected speech, this case provides a textbook example of why we permit facial challenges to statutes that burden expression. With these severe penalties in force, few legitimate movie producers or book publishers, or few other speakers in any capacity, would risk distributing images in or near the uncertain reach of this law. The Constitution gives significant protection from overbroad laws that chill speech within the First Amendment's vast and privileged sphere. Under this principle, the CPPA is unconstitutional on its face if it prohibits a substantial amount of protected expression. 22.The sexual abuse of a child is a most serious crime and an act repugnant to the moral instincts

of a decent people. In its legislative findings, Congress recognized that there are subcultures of persons who harbor illicit desires for children and commit criminal acts to gratify the impulses. Congress also found that surrounding the serious offenders are those who flirt with these impulses and trade pictures and written accounts of sexual activity with young children. 23. Congress may pass valid laws to protect children from abuse, and it has. The prospect of crime, however, by itself does not justify laws suppressing protected speech. It is also well established that speech may not be prohibited because it concerns subjects offending our sensibilities. As a general principle, the First Amendment bars the government from dictating what we see or read or speak or hear. The freedom of speech has its limits; it does not embrace certain categories of speech, including defamation, incitement, obscenity, and pornography produced with real children. While these categories may be prohibited without violating the First Amendment, none of them includes the speech prohibited by the CPPA. … 24. The CPPA prohibits speech despite its serious literary, artistic, political, or scientific value. The statute proscribes the visual depiction of an idea-that of teenagers engaging in sexual activity--that is a fact of modern society and has been a theme in art and literature throughout the ages. Under the CPPA, images are prohibited so long as the persons appear to be under 18 years of age. This is higher than the legal age for marriage in many States, as well as the age at which persons may

consent to sexual relations. (48 States permit 16year-olds to marry with parental consent); (in 39 States and the District of Columbia, the age of consent is 16 or younger). It is, of course, undeniable that some youths engage in sexual activity before the legal age, either on their own inclination or because they are victims of sexual abuse. 25. Both themes--teenage sexual activity and the sexual abuse of children--have inspired countless literary works. William Shakespeare created the most famous pair of teenage lovers, one of whom is just 13 years of age. See Romeo and Juliet, act I, sc. 2, l. 9 ('She hath not seen the change of fourteen years '). In the drama, Shakespeare portrays the relationship as something splendid and innocent, but not juvenile. The work has inspired no less than 40 motion pictures, some of which suggest that the teenagers consummated their relationship. Shakespeare may not have written sexually explicit scenes for the Elizabethean audience, but were modern directors to adopt a less conventional approach, that fact alone would not compel the conclusion that the work was obscene. 26. Contemporary movies pursue similar themes. Last year's Academy Awards featured the movie, Traffic, which was nominated for Best Picture. The film portrays a teenager, identified as a 16year-old, who becomes addicted to drugs. The viewer sees the degradation of her addiction, which in the end leads her to a filthy room to trade sex for drugs. The year before, American Beauty won the Academy Award for Best Picture. In the

course of the movie, a teenage girl engages in sexual relations with her teenage boyfriend, and another yields herself to the gratification of a middle-aged man. The film also contains a scene where, although the movie audience understands the act is not taking place, one character believes he is watching a teenage boy performing a sexual act on an older man. 27. Our society, like other cultures, has empathy and enduring fascination with the lives and destinies of the young. Art and literature express the vital interest we all have in the formative years we ourselves once knew, when wounds can be so grievous, disappointment so profound, and mistaken choices so tragic, but when moral acts and self-fulfillment are still in reach. Whether or not the films we mention violate the CPPA, they explore themes within the wide sweep of the statute's prohibitions. If these films, or hundreds of others of lesser note that explore those subjects, contain a single graphic depiction of sexual activity within the statutory definition, the possessor of the film would be subject to severe punishment without inquiry into the work's redeeming value. This is inconsistent with an essential First Amendment rule: The artistic merit of a work does not depend on the presence of a single explicit scene. … 28. Ferber upheld a prohibition on the distribution and sale of child pornography, as well as its production, because these acts were 'intrinsically related' to the sexual abuse of children in two ways. First, as a permanent record of a child's abuse, the continued circulation itself would harm

the child who had participated. Like a defamatory statement, each new publication of the speech would cause new injury to the child's reputation and emotional well-being. Second, because the traffic in child pornography was an economic motive for its production, the State had an interest in closing the distribution network. 'The most expeditious if not the only practical method of law enforcement may be to dry up the market for this material by imposing severe criminal penalties on persons selling, advertising, or otherwise promoting the product.' Under either rationale, the speech had what the Court in effect held was a proximate link to the crime from which it came. … In contrast to the speech in Ferber, speech that itself is the record of sexual abuse, the CPPA prohibits speech that records no crime and creates no victims by its production. Virtual child pornography is not 'intrinsically related' to the sexual abuse of children, as were the materials in Ferber. While the Government asserts that the images can lead to actual instances of child abuse, the causal link is contingent and indirect. The harm does not necessarily follow from the speech, but depends upon some unquantified potential for subsequent criminal acts. 29. The Government says these indirect harms are sufficient because, as Ferber acknowledged, child pornography rarely can be valuable speech. ('The value of permitting live performances and photographic reproductions of children engaged in lewd sexual conduct is exceedingly modest, if not de minimis'). This argument, however, suffers

from two flaws. First, Ferber's judgment about child pornography was based upon how it was made, not on what it communicated. The case reaffirmed that where the speech is neither obscene nor the product of sexual abuse, it does not fall outside the protection of the First Amendment. ('[T]he distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performance or photographic or other visual reproduction of live performances, retains First Amendment protection'). 30. The second flaw in the Government's position is that Ferber did not hold that child pornography is by definition without value. On the contrary, the Court recognized some works in this category might have significant value, see id., at 761, but relied on virtual images--the very images prohibited by the CPPA-- as an alternative and permissible means of expression: '[I]f it were necessary for literary or artistic value, a person over the statutory age who perhaps looked younger could be utilized. Simulation outside of the prohibition of the statute could provide another alternative.' Id., at 763. Ferber, then, not only referred to the distinction between actual and virtual child pornography, it relied on it as a reason supporting its holding. Ferber provides no support for a statute that eliminates the distinction and makes the alternative mode criminal as well. 31.III 32. … The Government seeks to justify its prohibitions in other ways. It argues that the CPPA is necessary because pedophiles may use

virtual child pornography to seduce children. There are many things innocent in themselves, however, such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused. The Government, of course, may punish adults who provide unsuitable materials to children, and it may enforce criminal penalties for unlawful solicitation. The precedents establish, however, that speech within the rights of adults to hear may not be silenced completely in an attempt to shield children from it. In Butler v. Michigan, 352 U. S. 380, 381 (1957), the Court invalidated a statute prohibiting distribution of an indecent publication because of its tendency to 'incite minors to violent or depraved or immoral acts.' A unanimous Court agreed upon the important First Amendment principle that the State could not 'reduce the adult population ... to reading only what is fit for children.' We have reaffirmed this holding. … 33.Here, the Government wants to keep speech from children not to protect them from its content but to protect them from those who would commit other crimes. The principle, however, remains the same: The Government cannot ban speech fit for adults simply because it may fall into the hands of children. The evil in question depends upon the actor's unlawful conduct, conduct defined as criminal quite apart from any link to the speech in question. This establishes that the speech ban is not narrowly drawn. The objective is to prohibit illegal conduct, but this restriction goes well

beyond that interest by restricting the speech available to law-abiding adults. 34. The Government submits further that virtual child pornography whets the appetites of pedophiles and encourages them to engage in illegal conduct. This rationale cannot sustain the provision in question. The mere tendency of speech to encourage unlawful acts is not a sufficient reason for banning it. The government 'cannot constitutionally premise legislation on the desirability of controlling a person's private thoughts.' First Amendment freedoms are most in danger when the government seeks to control thought or to justify its laws for that impermissible end. The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought. 35. … The Government next argues that its objective of eliminating the market for pornography produced using real children necessitates a prohibition on virtual images as well. Virtual images, the Government contends, are indistinguishable from real ones; they are part of the same market and are often exchanged. In this way, it is said, virtual images promote the trafficking in works produced through the exploitation of real children. The hypothesis is somewhat implausible. If virtual images were identical to illegal child pornography, the illegal images would be driven from the market by the indistinguishable substitutes. Few pornographers would risk prosecution by abusing real children if fictional, computerized images would suffice.

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DISSENTING OPINION 37.JUSTICE O'CONNOR, with whom THE CHIEF JUSTICE and JUSTICE SCALIA join as to Part II, concurring in the judgment in part and dissenting in part. 38.

Although in my view the CPPA's ban on youthfuladult pornography appears to violate the First Amendment, the ban on virtual-child pornography does not. It is true that both bans are authorized by the same text: The statute's definition of child pornography to include depictions that 'appea[r] to be' of children in sexually explicit poses. 18 U. S. C. §2256(8)(B). Invalidating a statute due to overbreadth, however, is an extreme remedy, one that should be employed 'sparingly and only as a last resort.' We have observed that '[i]t is not the usual judicial practice, . . . nor do we consider it generally desirable, to proceed to an overbreadth issue unnecessarily.' 39. …Although 18 U. S. C. §2256(8)(B) does not distinguish between youthful-adult and virtualchild pornography, the CPPA elsewhere draws a line between these two classes of speech. The statute provides an affirmative defense for those who produce, distribute, or receive pornographic images of individuals who are actually adults, but not for those with pornographic images that are wholly computer generated. This is not surprising given that the legislative findings enacted by Congress contain no mention of youthful-adult pornography. Those findings focus explicitly only on actual-child pornography and virtual- child

pornography. ('[T]he danger to children who are seduced and molested with the aid of child sex pictures is just as great when the child pornographer or child molester uses visual depictions of child sexual activity produced wholly or in part by electronic, mechanical, or other means, including by computer, as when the material consists of unretouched photographic images of actual children engaging in sexually explicit conduct'). Drawing a line around, and striking just, the CPPA's ban on youthful-child pornography not only is consistent with Congress' understanding of the categories of speech encompassed by §2256(8)(B), but also preserves the CPPA's prohibition of the material that Congress found most dangerous to children. 40. In sum, I would strike down the CPPA's ban on material that 'conveys the impression' that it contains actual-child pornography, but uphold the ban on pornographic depictions that 'appea[r] to be' of minors so long as it is not applied to youthful-adult pornography. 41. To read more about the case and the history of child pornography law, see http://www.pbs.org/wgbh/pages/frontline/shows/p orn/prosecuting/supreme.html#2

Violent Repercussions of Pornography

The consumption of pornography can be directly linked to violence against women. Here are excerpts from the Report of the Attorney General's Commission on Pornography: Report of the Attorney General's Commission on Pornography: Section 5.2.1 Sexually Violent Material …[C]linical and experimental research … [has] focused particularly on sexually violent material, [and] the conclusions have been virtually unanimous. In both clinical and experimental settings, exposure to sexually violent materials has indicated an increase in the likelihood of aggression. More specifically, the research, … shows a causal relationship between exposure to material of this type and aggressive behavior towards women. …The assumption that increased aggressive behavior towards women is causally related, for an aggregate population, to increased sexual violence is significantly supported by the clinical evidence, as well as by much of the less scientific evidence. This is not to say that all people with heightened levels of aggression will commit acts of sexual violence. But it is to say that over a sufficiently large number of cases we are confident in asserting that an increase in aggressive behavior directed at women will cause an increase in the level of sexual violence directed at women. Since the clinical and experimental evidence supports the conclusion that there is a causal relationship between exposure to sexually violent materials and an increase in aggressive behavior directed towards women, and since we believe that

an increase in aggressive behavior towards women will in a population increase the incidence of sexual violence in that population, we have reached the conclusion unanimously and confidently, that the available evidence strongly supports the hypothesis that substantial exposure to sexually violent materials as described here bears a causal relationship to antisocial acts of sexual violence and, for some subgroups, possibly to unlawful acts of sexual violence. Sexual violence is not the only negative effect reported in the research to result from substantial exposure to sexually violent materials. The evidence is also strongly supportive of significant attitudinal changes on the part of those with substantial exposure to violent pornography. These attitudinal changes are numerous. Victims of rape and other forms of sexual violence are likely to be perceived by people so exposed as more responsible for the assault, as having suffered less injury, and as having been less degraded as a result of the experience. Similarly, people with a substantial exposure to violent pornography are likely to see the rapist or other sexual offender as less responsible for the act and as deserving of less stringent punishment. …The evidence also strongly supports the conclusion that substantial exposure to violent sexually explicit material leads to a greater acceptance of the "rape myth," in its broader sense that women enjoy being coerced into sexual activity, that they enjoy being physically hurt in sexual context, and that as a result a man who forces himself on a woman sexually is in fact merely acceding to the "real" wishes of the woman,

regardless of the extent to which she seems to be resisting… For more on pornography's violent repercussions, continue on to read about Diana Russell's work. The following excerpt from Diana Russell's book Against Pornography: The Evidence of Harm (Berkeley, California: Russell Publications, 1994) explores links between the consumption of pornography and violence against women. For more on Diana Russell's work, see her website: www.dianarussell.com I. THE ROLE OF PORNOGRAPHY IN PREDISPOSING SOME MALES TO WANT TO RAPE (1) Pairing sexually arousing/gratifying stimuli with rape …A simple application of the laws of social learning suggests that viewers of pornography can develop arousal responses to depictions of rape, murder, child sexual abuse, or other assaultive behavior. Researcher S. Rachman of the Institute of Psychiatry, Maudsley Hospital, London, has demonstrated that male subjects can learn to become sexually aroused by seeing a picture of a woman's boot after repeatedly seeing women's boots in association with sexually arousing slides of nude females (Rachman and Hodgson, 1968). The laws of learning that operated in the acquisition of the boot fetish can also teach males who were not previously aroused by depictions of rape to become so. All it

may take is the repeated association of rape with arousing portrayals of female nudity (or clothed females in provocative poses). … (2) Increasing males' self-generated rape fantasies Further evidence that exposure to pornography can create in males a predisposition to rape where none existed before is provided by an experiment conducted by Malamuth. Malamuth classified 29 male students as sexually force-oriented or nonforce-oriented on the basis of their responses to a questionnaire (1981a). These students were then randomly assigned to view either a rape version or a mutually consenting version of a slide-audio presentation. The account of rape and accompanying pictures were based on a story in a popular pornographic magazine, which Malamuth describes as follows: The man in this story finds an attractive woman on a deserted road. When he approaches her, she faints with fear. In the rape version, the man ties her up and forcibly undresses her. The accompanying narrative is as follows: "You take her into the car. Though this experience is new to you, there is a temptation too powerful to resist. When she awakens, you tell her she had better do exactly as you say or she'll be sorry. With terrified eyes she agrees. She is undressed and she is willing to succumb to whatever you want. You kiss her and she returns the kiss." Portrayal of the man and woman in

sexual acts follows; intercourse is implied rather than explicit (1981a, p. 38). In the mutually consenting version of the story the victim was not tied up or threatened. Instead, on her awakening in the car, the man told her that "she is safe and that no one will do her any harm. She seems to like you and you begin to kiss." The rest of the story is identical to the rape version (Malamuth, 1981a, p. 38). All subjects were then exposed to the same audio description of a rape read by a female. This rape involved threats with a knife, beatings, and physical restraint. The victim was portrayed as pleading, crying, screaming, and fighting against the rapist (Abel, Barlow, Blanchard, and Guild, 1977, p. 898). Malamuth reports that measures of penile tumescence as well as self-reported arousal "indicated that relatively high levels of sexual arousal were generated by all the experimental stimuli" (1981a, p. 33). After the 29 male students had been exposed to the rape audio tape, they were asked to try to reach as high a level of sexual arousal as possible by fantasizing about whatever they wanted but without any direct stimulation of the penis (1981a, p. 40). Self-reported sexual arousal during the fantasy period indicated that those students who had been exposed to the rape version of the first slide-audio presentation, created more violent sexual fantasies than those exposed to the mutually consenting version irrespective of whether they had been

classified as force-oriented or non-force-oriented (1981a, p. 33). As the rape version of the slide-audio presentation is typical of what is seen in pornography, the results of this experiment suggests that similar pornographic depictions are likely to generate rape fantasies even in previously non-force-oriented consumers. As Edna Einsiedel points out (1986, p. 60): Current evidence suggests a high correlation between deviant fantasies and deviant behaviors....Some treatment methods are also predicated on the link between fantasies and behavior by attempting to alter fantasy patterns in order to change the deviant behaviors (1986, p. 60). Because so many people resist the idea that a desire to rape may develop as a result of viewing pornography, let us focus for a moment on behavior other than rape. There is abundant testimonial evidence that at least some males decide they would like to perform certain sex acts on women after seeing pornography portraying such sex acts. For example, one of the men who answered Shere Hite's question on pornography wrote: "It's great for me. It gives me new ideas to try and see, and it's always sexually exciting" (1981, p. 780; emphasis added). Of course, there's nothing wrong with getting new ideas from pornography or anywhere else, nor with trying them out, as long as they are not actions that subordinate or violate others. Unfortunately, many of the behaviors modeled in pornography do

subordinate and violate women, sometimes viciously. … Psychologist Jennings Bryant testified to the Pornography Commission about a survey he had conducted involving 600 telephone interviews with males and females who were evenly divided into three age groups: students in junior high school, students in high school, and adults aged 19 to 39 years (1985, p. 133). Respondents were asked if "exposure to X-rated materials had made them want to try anything they saw" (1985, p. 140). Two-thirds of the males reported "wanting to try some of the behavior depicted" (1985, p. 140). Bryant reports that the desire to imitate what is seen in pornography "progressively increases as age of respondents decreases" (1985, p. 140; emphasis added). Among the junior high school students, 72% of the males reported that "they wanted to try some sexual experiment or sexual behavior that they had seen in their initial exposure to X-rated material" (1985, p. 140). In trying to ascertain if imitation had occurred, the respondents were asked: "Did you actually experiment with or try any of the behaviors depicted [within a few days of seeing the materials]?" (1985, p. 140). A quarter of the males answered that they had. A number of adult men answered, "no," but said that some years later they had experimented with the behaviors portrayed. However, only imitations within a few days of seeing the materials were counted (1985, p. 140). Male high school students were the

most likely (31%) to report experimenting with the behaviors portrayed (1985, p. 141). Unfortunately, no information is available on the behaviors imitated by these males. Imitating pornography is cause for concern only when the behavior imitated is violent or abusive, or when the behavior is not wanted by one or more of the participants. Despite the unavailability of this information, Bryant's study is valuable in showing how common it is for males to want to imitate what they see in pornography, and for revealing that many do imitate it within a few days of viewing it. Furthermore, given the degrading and often violent content of pornography, as well as the youthfulness and presumable susceptibility of many of the viewers, how likely is it that these males only imitated or wished to imitate the non-sexist, non-degrading, and non-violent sexual behavior? Almost all the research on pornography to date has been conducted on men and women who were at least 18 years old. But as Malamuth points out, there is "a research basis for expecting that children would be more susceptible to the influences of mass media, including violent pornography if they are exposed to it" than adults (1985, p. 107). Bryant's telephone interviews show that very large numbers of children now have access to both hard-core and soft-core materials. For example: •The average age at which male respondents saw their first issue of Playboy or a similar magazine was 11 years (1985, p. 135).

•All of the high school age males surveyed reported having read or looked at Playboy, Playgirl, or some other soft-core magazine (1985, p. 134). •High school males reported having seen an average of 16.1 issues, and junior high school males said they had seen an average of 2.5 issues. •In spite of being legally under age, junior high students reported having seen an average of 16.3 "unedited sexy R-rated films" (1985, p. 135). (Although R-rated movies are not usually considered pornographic, many of them meet my definition of pornography.) •The average age of first exposure to sexually oriented R-rated films for all respondents was 12.5 years (1985, p. 135). •Nearly 70% of the junior high students surveyed reported that they had seen their first R-rated film before they were 13 (1985, p. 135). •The vast majority of all the respondents reported exposure to hard-core, X-rated, sexually explicit material (1985, p. 135). Furthermore, "a larger proportion of high school students had seen X-rated films than any other age group, including adults": 84%, with the average age of first exposure being 16 years, 11 months (1985, p. 136). In a more recent anonymous survey of 247 Canadian junior high school students whose average age was 14 years, James Check and Kristin Maxwell (1992) report that 87% of the boys and 61% of the girls said they had viewed video-pornography. The average age at first exposure was just under 12 years.

33% of the boys versus only 2% of the girls reported watching pornography once a month or more often. As well, 29% of the boys versus 1% of the girls reported that pornography was the source that had provided them with the most useful information about sex (i.e., more than parents, school, friends, etc.). Finally, boys who were frequent consumers of pornography and/or reported learning a lot from pornography were also more likely to say that is was "OK" to hold a girl down and force her to have intercourse (abstract). Clearly, more research is needed on the effects of pornography on young male viewers, particularly in view of the fact that recent studies suggest that "over 50% of various categories of paraphiliacs [sex offenders] had developed their deviant arousal patterns prior to age 18" (Einsiedel, 1986, p. 53). Einsiedel goes on to say that "it is clear that the age-of-first-exposure variable and the nature of that exposure needs to be examined more carefully. There is also evidence that the longer the duration of the paraphilia, the more significant the association with use of pornography" (Abel, Mittleman, and Becker, 1985). … The following excerpt from Diana Russell's book Against Pornography: The Evidence of Harm (Berkeley, California: Russell Publications, 1994) explores links between the consumption of pornography and violence against women. For more

on Diana Russell's work, see her website: www.dianarussell.com II. THE ROLE OF PORNOGRAPHY IN UNDERMINING SOME MALES' INTERNAL INHIBITIONS AGAINST ACTING OUT THE DESIRE TO RAPE (1) Objectifying women. The first way in which pornography undermines some males' internal inhibitions against acting out their desires to rape is by objectifying women. Feminists have been emphasizing the role of objectification in the occurrence of rape for years (e.g., Medea and Thompson, 1974; Russell, 1975). Objectification makes it easier to rape them. "It was difficult for me to admit that I was dealing with a human being when I was talking to a woman," one rapist reported, "because, if you read men's magazines, you hear about your stereo, your car, your chick" (Russell, 1975, pp. 249-250). After this rapist had hit his victim several times in her face, she stopped resisting and begged, "All right, just don't hurt me." "When she said that," he reported, "all of a sudden it came into my head, 'My God, this is a human being!' I came to my senses and saw that I was hurting this person." Another rapist said of his victim, "I wanted this beautiful fine thing and I got it" (Russell, 1975, p. 245). Dehumanizing oppressed groups or enemy nations in times of war is an important mechanism for facilitating brutal behavior toward members of those groups. … However, the dehumanization of women that occurs in pornography is often not recognized

because of its sexual guise and its pervasiveness. It is important to note that the objectification of women is as common in non-violent pornography as it is in violent pornography. Doug McKenzie-Mohr and Mark Zanna conducted an experiment to test whether certain types of males would be more likely to sexually objectify a woman after viewing 15 minutes of non-violent pornography. They selected 60 male students who they classified into one of two categories: masculine sex-typed or gender schematic--individuals who "encode all crosssex interactions in sexual terms and all members of the opposite sex in terms of sexual attractiveness" (Bem, 1981, p. 361); and androgynous or gender aschematic--males who do not encode cross-sex interactions and women in these ways (McKenzieMohr and Zanna, 1990, p. 297, 299). McKenzie-Mohr and Zanna found that after exposure to non-violent pornography, the masculine sex-typed males "treated our female experimenter who was interacting with them in a professional setting, in a manner that was both cognitively and behaviorally sexist" (1990, p. 305). In comparison with the androgynous males, for example, the masculine sextyped males positioned themselves closer to the female experimenter and had "greater recall for information about her physical appearance" and less about the survey she was conducting (1990, p. 305). The experimenter also rated these males as more sexually motivated based on her answers to questions such as, "How much did you feel he was

looking at your body?" "How sexually motivated did you find the subject?" (1990, p. 301). This experiment confirmed McKenzie-Mohr and Zanna's hypothesis that exposure to non-violent pornography causes masculine sex-typed males, in contrast to androgynous males, to view and treat a woman as a sex object. (2) Rape Myths. If males believe that women enjoy rape and find it sexually exciting, this belief is likely to undermine the inhibitions of some of those who would like to rape women. Sociologists Diana Scully and Martha Burt have reported that rapists are particularly apt to believe rape myths (Burt, 1980; Scully, 1985). Scully, for example, found that 65% of the rapists in her study believed that "women cause their own rape by the way they act and the clothes they wear"; and 69% agreed that "most men accused or rape are really innocent." However, as Scully points out, it is not possible to know if their beliefs preceded their behavior or constitute an attempt to rationalize it. Hence, findings from the experimental data are more telling for our purposes than these interviews with rapists. As the myth that women enjoy rape is widely held, the argument that consumers of pornography realize that such portrayals are false, is totally unconvincing (Brownmiller, 1975; Burt, 1980; Russell, 1975). Indeed, several studies have shown that portrayals of women enjoying rape and other kinds of sexual violence can lead to increased acceptance of rape myths in both males and females. In an experiment

conducted by Neil Malamuth and James Check, for example, one group of college students saw a pornographic depiction in which a woman was portrayed as sexually aroused by sexual violence, and a second group was exposed to control materials. Subsequently, all subjects were shown a second rape portrayal. The students who had been exposed to the pornographic depiction of rape were significantly more likely than the students in the control group (1) to perceive the second rape victim as suffering less trauma; (2) to believe that she actually enjoyed it; and (3) to believe that women in general enjoy rape and forced sexual acts (Check and Malamuth, 1985, p. 419). Other examples of the rape myths that male subjects in these studies are more apt to believe after viewing pornography are as follows: "A woman who goes to the home or the apartment of a man on their first date implies that she is willing to have sex"; "Any healthy woman can successfully resist a rapist if she really wants to"; "Many women have an unconscious wish to be raped, and many then unconsciously set up a situation in which they are likely to be attacked"; "If a girl engages in necking or petting and she lets things get out of hand, it is her own fault if her partner forces sex on her" (Briere, Malamuth, and Check, 1985, p. 400). In Maxwell and Check's 1992 study of 247 high school students described above, they found very high rates of what they called "rape supportive beliefs", that is, acceptance of rape myths and violence against women. The boys who were the

most frequent consumers of pornography and/or who reported learning a lot from it, were more accepting of rape supportive beliefs than their peers who were less frequent consumers and/or who said they had not learned as much from it. A full 25% of girls and 57% of boys indicated belief that in one or more situations, it was at least "maybe okay" for a boy to hold a girl down and force her to have intercourse. Further, only 21% of the boys and 57% of the girls believed that forced intercourse was "definitely not okay" in any of the situations. The situation in which forced intercourse was most accepted, was that in which the girl had sexually excited her date. In this case 43% of the boys and 16% of the girls stated that if was at least "maybe okay" for the boy to force intercourse (1992, abstract). According to Donnerstein, "After only 10 minutes of exposure to aggressive pornography, particularly material in which women are shown being aggressed against, you find male subjects are much more willing to accept these particular myths" (1983, p. 6). These males are also more inclined to believe that 25% of the women they know would enjoy being raped (1983, p. 6). (3) Acceptance of interpersonal violence. Males' internal inhibitions against acting out their desire to rape can also be undermined if they consider male violence against women to be acceptable behavior. Studies have shown that viewing portrayals of sexual violence as having positive consequences increases

male subjects' acceptance of violence against women. Examples of some of the attitudes used to measure acceptance of interpersonal violence include "Being roughed up is sexually stimulating to many women"; "Sometimes the only way a man can get a cold woman turned on is to use force"; "Many times a woman will pretend she doesn't want to have intercourse because she doesn't want to seem loose, but she's really hoping the man will force her" (Briere, Malamuth, and Check, 1985, p. 401). Malamuth and Check (1981) conducted an experiment of particular interest because the movies shown were part of the regular campus film program. Students were randomly assigned to view either a feature-length film that portrayed violence against women as being justifiable and having positive consequences ("Swept Away", "The Getaway") or a film without sexual violence. The experiment showed that exposure to the sexually violent movies increased the male subjects' acceptance of interpersonal violence against women. (This outcome did not occur with the female subjects.) These effects were measured several days after the films had been seen. … (4) Trivializing rape. According to Donnerstein, in most studies on the effects of pornography, "subjects have been exposed to only a few minutes of pornographic material" (1985, p. 341). In contrast, Zillman and Bryant examined the impact on male subjects of what they refer to as "massive exposure" to non-violent pornography (4 hours and 48 minutes per week over a period of six weeks; for further

details about the experimental design, see page 27). After three weeks the subjects were told that they were participating in an American Bar Association study that required them to evaluate a trial in which a man was prosecuted for the rape of a female hitchhiker. At the end of this mock trial various measures were taken of the subjects' opinions about the trial and about rape in general. For example, they were asked to recommend the prison term they thought most fair. Zillmann and Bryant found that the male subjects who were exposed to the massive amounts of pornography considered rape a less serious crime than they did before they were exposed to it; they thought that prison sentences for rape should be shorter; and they perceived sexual aggression and abuse as causing less suffering for the victims, even in the case of an adult male having sexual intercourse with a 12-year-old girl (1984, p. 132). They concluded that "heavy exposure to common non-violent pornography trivialized rape as a criminal offense" (1984, p. 117). (5) Callous attitudes toward female sexuality. In the same experiment on massive exposure, Zillmann and Bryant also reported that, "males' sexual callousness toward women was significantly enhanced" (1984, p. 117). Male subjects, for example, became increasingly accepting of statements such as "A woman doesn't mean 'no' until she slaps you"; "A man should find them, fool them, fuck them, and forget them"; and "If they are old enough to bleed, they are old enough to butcher."

However, judging by these items, it is difficult to distinguish sexual callousness from a general hostility to women. (6) Acceptance of male dominance in intimate relationships. A marked increase in males' acceptance of male dominance in intimate relationships was yet another result of this massive exposure to pornography (Zillmann and Bryant, 1984, p. 121). The notion that women are, or ought to be, equal in intimate relationships was more likely to be abandoned by these male subjects (1984, p. 122). Finally, their support of the women's liberation movement also declined sharply (1984, p. 134). These findings demonstrate that pornography increases the acceptability of sexism. As Van White points out, "by using pornography, by looking at other human beings as a lower form of life, they [the pornographers] are perpetuating the same kind of hatred that brings racism to society" (1984). The greater trivializing of rape by males, the increase in their callous attitudes toward female sexuality, and their greater acceptance of male domination, are all likely to contribute to undermining some males' inhibitions against acting out their desires to rape. … (7) Desensitizing males to rape. In an experiment specifically designed to study desensitization, Linz, Donnerstein, and Penrod showed ten hours of Rrated or X-rated movies over a period of five days to

male subjects (Donnerstein and Linz, 1985, p. 34A). Some students saw X-rated movies depicting sexual assault; others saw X-rated movies depicting only consenting sex; and a third group saw R-rated sexually violent movies--for example, "I Spit on Your Grave," "Toolbox Murders," and "Texas Chainsaw Massacre." Donnerstein (1983) describes "Toolbox Murders" as follows: There is an erotic bathtub scene in which a woman massages herself. A beautiful song is played. Then a psychotic killer enters with a nail gun. The music stops. He chases the woman around the room, then shoots her through the stomach with the nail gun. She falls across a chair. The song comes back on as he puts the nail gun to her forehead and blows her brains out. According to Donnerstein, many young males become sexually aroused by this movie (1983, p. 10). Donnerstein and Linz point out that, "It has always been suggested by critics of media violence research that only those who are already predisposed toward violence are influenced by exposure to media violence" (1985, p. 34F). These experimenters, however, actually preselected their subjects to ensure that they were not psychotic, hostile, or anxious. Donnerstein and Linz described the impact of the Rrated movies on their subjects as follows: Initially, after the first day of viewing, the men rated themselves as significantly above the norm for depression, anxiety, and annoyance on a mood adjective checklist. After each subsequent day of

viewing, these scores dropped until, on the fourth day of viewing, the males' levels of anxiety, depression, and annoyance were indistinguishable from baseline norms (1985, p. 34F). By the fifth day, the subjects rated the movies as less graphic and less gory and estimated fewer violent or offensive scenes than after the first day of viewing. They also rated the films as significantly less debasing and degrading to women, more humorous, and more enjoyable, and reported a greater willingness to see this type of film again (1985, p. 34F). However, their sexual arousal by this material did not decrease over this five-day period (Donnerstein, 1983, p. 10). On the last day, the subjects went to a law school where they saw a documentary re-enactment of a real rape trial. A control group of subjects who had never seen the films also participated in this part of the experiment. Subjects who had seen the R-rated movies: (1) rated the victim as significantly more worthless, (2) rated her injury as significantly less severe, and (3) assigned greater blame to her for being raped than did the subjects who had not seen the film. In contrast, these effects were not observed for the X-rated non-violent films. However, the results were much the same for the violent X-rated films, despite the fact that the R-rated material was "much more graphically violent" (Donnerstein, 1985, pp. 1213). … Several other studies have assessed the correlation between the degree of males' exposure to

pornography and attitudes supportive of violence against women. Malamuth reports that in three out of four studies, "higher levels of reported exposure to sexually explicit media correlated with higher levels of attitudes supportive of violence against women" (1986, p. 8). (1) Malamuth and Check (1985) conducted a study in which they found a positive correlation between the amount of sexually explicit magazines a sample of college males read and their beliefs that women enjoy forced sex. (2) Similarly, Check (1985) found that the more often a diverse sample of Canadian males were exposed to pornography, the higher their acceptance of rape myths, violence against women, and general sexual callousness was. (3) Briere, Corne, Runtz and Malamuth (1984) found similar correlations in another sample of college males. In her study of male sexuality, Shere Hite found that 67% of the males who admitted that they had wanted to rape a woman reported reading pornographic magazines, compared to only 19% of those who said that they had never wanted to rape a woman (1981, p. 1123). With regard to the frequency of exposure to pornography, Hite reported that only 11% of the 7,000 males she surveyed said that they had never looked at pornography; 36% said they viewed it regularly, 21% said they did so sometimes, 26% said they did so infrequently, and 6% said that they had looked at it in the past (1981, p. 1123). While

correlation does not prove causation, and it therefore cannot be concluded from these studies that it was the consumption of the pornography that was responsible for the males' higher acceptance of violence against women, their findings are consistent with a theory that a causal connection exists. Constitutional Language MacKinnon's essay and Russell's research explicitly detail pornography's harm and its relationship to violence against women. While the courts have recognized the harm pornography causes to children (with the virtual child pornography case as an exception), the legal system and our cultural structures more generally have not expanded that notion of harm to analyze the repercussions of the existence of pornography on women's lived experiences. Furthermore, discussions about pornography's harm have often been silenced by discussions about free speech and The First Amendment. Proponents of this perspective assert that eradicating pornography is akin to censorship. But, the prototypical pornographic item shares more of the characteristics of sexual activity than of the characteristics of the communicative, emotive, or artistic processes. Pornography is a sexual surrogate. Pornography as action rather than speech is an important distinction to make when considering whether regulation of pornographic materials is allowed by the First Amendment. Consider Frederick Schauer's perspective on this definitional and empirical issue that undergirds much of the pornography debate: Speech and "Speech" - Obscenity and "Obscenity": An Exercise in the Interpretation of Constitutional

Language, by Frederick Schauer; 67 Geo.L.J. 899 922-923 (1979) [Pornography] takes pictorial or linguistic form only because some individuals achieve sexual gratification by those means. Imagine a person going to a house of prostitution, and, in accord with his or her particular sexual preferences, requesting that two prostitutes engage in sexual activity with each other while he becomes aroused. Having achieved sexual satisfaction in this manner, he pays his money and leaves, never having touched either of the prostitutes. Imagine an individual who asks that a leather-clad prostitute crack a whip within an inch of his ear. Are these free speech cases? Hardly. Despite the fact that eyes and ears are used, these incidents are no more cognitive than any other experience with a prostitute. It is essentially a physical activity, the lack of actual contact notwithstanding. If the above examples are not free speech cases, is there any real difference between the same activity when presented on film rather than in the flesh? Consider further rubber, plastic, or leather sex aids. It is hard to find any free speech aspects in their sale or use. If pornography is viewed merely as a type of aid to sexual satisfaction, any distinction between pornography and so-called "rubber products" is meaningless. The mere fact that in pornography the stimulating experience is initiated by visual rather than tactile means is irrelevant if every other aspect of the experience is the same. Neither means constitutes communication in the cognitive sense. Pornography involves neither a communicator nor an object of the communication. The purveyor of the

pornography is in the business solely of providing sexual pleasure; it is unrealistic to presume that he is anything but indifferent to the method by which pleasure is provided and profit secured. Similarly, there is no reason to believe that the recipient desires anything other than sexual stimulation. Hardcore pornography, then, is distinguished by its similarity in all relevant respects to a wide range of other sexual experiences. Case Study: The Jake Baker Case and Violence Against Women on the Internet The last case study, the Jake Baker case shows the intersections of pornography, the Internet, violence, and limited notions of harm in the arena of violence against women. This case illustrates many of the issues we have already seen: the shortcomings of the law, the accessibility of Internet pornography, and the debate surrounding free speech and the right to bodily autonomy and safety. Please read the excerpts from the district court opinion and appellate court majority and dissent provided below. Please note that the dissent to the appellate court opinion contains very explicit sexual and violent material. United States of America, Plaintiff, v. Jake BAKER and Arthur Gonda, Defendants. United States District Court, E.D. Michigan, Southern Division June 21, 1995. COHN, District Judge.

"It is not the policy of the law to punish those unsuccessful threats which it is not presumed would terrify ordinary persons excessively; and there is so much opportunity for magnifying or misunderstanding undefined menaces that probably as much mischief would be caused by letting them be prosecuted as by refraining from it." The People v. B.F. Jones, 62 Mich. 304, 28 N.W. 839 (1886) I. Introduction … Defendant Jake Baker (Baker) is charged in a superseding indictment with five counts of transmitting threats to injure or kidnap another, in electronic mail (e-mail) messages transmitted via the Internet. Now before the Court is Baker's motion to quash the superseding indictment. For the reasons that follow, the motion will be granted. II. Background The e-mail messages that form the basis of the charges in this case were exchanged in December, 1994 between Baker in Ann Arbor, Michigan, and defendant Arthur Gonda (Gonda), who sent and received e-mail through a computer in Ontario, Canada. … They all express a sexual interest in violence against women and girls. The complaint was based on an FBI agent's affidavit which cited language taken from a story Baker posted to an Internet newsgroup entitled "alt.sex.stories," and from e-mail messages he sent to Gonda. The story graphically described the torture, rape, and murder of a woman who was given the

name of a classmate of Baker's at the University of Michigan. The "alt.sex.stories" newsgroup to which Baker's story was posted is an electronic bulletin board, the contents of which are publicly available via the Internet. Much of the attention this case garnered centered on Baker's use of a real student's name in the story. … IV. The Communications A. Count I charges Baker and Gonda with transmitting a threat to injure, and quotes from three e-mail messages. In the first message quoted, dated December 1, 1994, Baker responds to a message he had received from Gonda: I highly agree with the type of woman you like to hurt. You seem to have the same tastes I have. When you come down, this'll be fun! Also, I've been thinking. I want to do it to a really young girl first. !3 or 14. [FN20] There innocence makes them so much more fun--and they'll be easier to control. What do you think? I haven't read your entire mail yet. I've saved it to read later, in private. I'll try to write another short phantasy and send it. If not tomorrow, maybe by Monday. No promises. FN20. The typographic, spelling, and grammatical errors in this and the following quotations are reproduced from the originals. On December 2, Gonda responded: I would love to do a 13 or 14 year old. I think you

are right ... not only their innocence but their young bodies would really be fun to hurt. As far as being easier to control ... you may be right, however you can control any bitch with rope and a gag ... once tey are tieed up and struggling we could do anything we want to them ... to any girl. The trick is to be very careful in planning. I will keep my eye out for young girls, and relish the fantasy ... BTW [FN21] how about your neighbour at home, youm may get a chance to see her ...? ...? FN21. "BTW" is shorthand for "by the way." The same day, Baker responded: True. But young girls still turn me on more. Likely to be nice and tight. Oh. they'd scream nicely too! Yeah. I didn't see her last time I was home. She might have moved. But she'd be a great catch. She's real pretty. with nice long legs. and a great girly face ... I'd love to make her cry ... The bill of particulars identifies the targets of these statements as: 13 or 14-year old girls who reside in Defendant Jake Baker's neighborhood in Ann Arbor, Michigan, and teenage girls who reside in Defendant Jake Baker's neighborhood in Boardman, Ohio. This Count falls short of the constitutional "true threat" requirement. As an initial matter, it does not refer to a sufficiently specific class of targets. The more limited class identified in the bill of particulars is not apparent from the face of the communications. Nothing in the exchange quoted in Count I implicitly or explicitly refers to 13 or 14 year old girls in Ann Arbor, nothing in the exchange identifies Boardman, Ohio (Baker's actual home) as the "home" referred

to, and nothing in the exchange allows one to determine that the neighbor discussed is a teen-age girl. In reality, the only class of people to whom the messages can be taken to refer is 13 or 14 year old girls, anywhere. This class is too indeterminate to satisfy the requirement of specificity as to the person threatened, even under the liberal interpretation given the requirement by some courts. As to the content of the messages, Baker's discussing his "tastes" in the first paragraph of his December 1 message does not involve any identifiable threatened action. In the second paragraph of the December 1 message, he expresses a desire "to do it to" a 13 or 14 year old girl. Even assuming that more context would clarify the phrase "to do it to," the second paragraph also fails to mention an intention to do anything. Rather, it seeks Gonda's reaction to Baker's desire, asking: "What do you think?" Discussion of desires, alone, is not tantamount to threatening to act on those desires. Absent such a threat to act, a statement is protected by the First Amendment. As to Baker's message of December 2, the first paragraph again discusses a predilection toward "young girls," and what it would be like, presumably, "to do it to" "young girls." It does not mention any intention to act in accordance with the expressed predilection. The second paragraph responds to Gonda's question about a neighbor "at home." It says "she'd be a great catch," but expresses no intention to "catch" her, and indicates a desire to "make her cry," but, again, expresses no intention to take any action in accordance with that desire. It is not constitutionally permissible to infer an intention to act

on a desire from a simple expression of the desire. The intention (whether or not actually held) must itself be expressed in the statement. Count I fails to meet this standard, and must be dismissed. B. Counts II and III are based on the same statement made by Baker in an e-mail message dated December 9, 1994, and charge Baker with making a threat to kidnap and a threat to injure, respectively. The statement for which Baker is charged in the two counts reads: I just picked up Bllod Lust and have started to read it. I'll look for "Final Truth" tomorrow (payday). One of the things I've started doing is going back and re-reading earlier messages of yours. Each time I do. they turn me on more and more. I can't wait to see you in person. I've been trying to think of secluded spots. but my knowledge of Ann Arbor is mostly limited to the campus. I don't want any blood in my room, though I have come upon an excellent method to abduct a bitchAs I said before, my room is right across from the girl's bathroom. Wiat until late at night. grab her when she goes to unlock the dorr. Knock her unconscious. and put her into one of those portable lockers (forget the word for it). or even a duffle bag. Then hurry her out to the car and take her away ... What do you think? The bill of particulars identifies the target of the statement as: "Female college students who lived in Defendant Jake Baker's dormitory at the University of Michigan in Ann Arbor, Michigan." Apart from

concerns about equating Baker's online persona with his real person, the class of would-be targets here is identified with sufficient specificity. Presumably, the government offers this statement as a threat to carry out the "method to abduct" it describes. A discussion of a method of kidnapping or injuring a person is not punishable unless the statement includes an unequivocal and specific expression of intention immediately to carry out the actions discussed. Baker's e-mail message cannot reasonably be read as satisfying this standard. As in Count I, the language with which Baker is charged here lacks any expression of an intention to act, and concludes with a request for Gonda's reaction: "What do you think?" Discussing the commission of a crime is not tantamount to declaring an intention to commit the crime. To find an expression of unequivocal intention in this language would require the drawing of an inference not grounded in any specific language of the statement and would exceed the bounds of the First Amendment. Counts II and III must be dismissed. C. Count IV charges Baker and Gonda with transmitting a threat to injure. The Count is based on a message from Gonda to Baker, and Baker's response. Both email messages are dated December 10, 1994. Gonda wrote: Hi Jake. I have been out tonight and I can tell you that I am thinking more and more about 'doing' a girl. I can picture it so well ... and I can think of no better use for their flesh. I HAVE to make a bitch suffer!

As far as the Teale-homolka killings, well I can think of no tastier crimes ... BTW have you seen any pictures of the girls? You have to see these cunts! They must have been so much fun ... please let me know any details that I cannot get here. I would love to see what you think about it.... As far as the asian bitch story, there is only one possible ending.... Baker responded: Are tastes are so similar. it scares me :-) When I lay down at night. all I think of before I sleep is how I'd torture a bitch I get my hands on. I have some pretty vivid near dreams too. I wish I could remember them when I get up. The bill of particulars identifies the target of these statements as: Women who were the subject of Defendant Jake Baker's E-mail transmissions and Internet postings, including--but not limited to--Jane Doe, whose true name is known to Defendant Jake Baker and this Honorable Court. This Count presents the weakest of all the government's charges against Baker. While the government identifies the class of targets here as women Baker discussed on the Internet, there is nothing in the language quoted here to so limit the class. In addition, since Baker's e-mail often refers simply to "a girl," a class composed of women Baker discussed in his e-mail and stories essentially is a class composed of any woman or girl about whom Baker has ever thought. Such a class is obviously not sufficiently specific. With regard to the content of Baker's communication, Baker's statement here consists only of an

expression of his thoughts before sleeping and of "near dreams" he cannot remember upon waking. To infer an intention to act upon the thoughts and dreams from this language would stray far beyond the bounds of the First Amendment, and would amount to punishing Baker for his thoughts and desires. Count IV must be dismissed. D. Count V charges Baker and Gonda with transmitting a threat to injure. It is based on an exchange between Gonda and Baker on December 11-12, 1994. On December 11, Gonda wrote to Baker: It's always a pleasure hearing back from you ... I had a great orgasm today thinking of how you and I would torture this very very petite and cute south american girl in one of my classes ... BTW speaking of torture, I have got this great full length picture of the Mahaffy girl Paul Bernardo killed, she is wearing this short skirt! The same day, Baker responded: Just thinking about it anymore doesn't do the trick ... I need TO DO IT. The next day, Gonda wrote: My feelings exactly! We have to get together ... I will give you more details as soon as I find out my situation ... Baker responded: Alrighty then. If not next week. or in January. then definatly sometime in the Summer. Pickings are better then too. Although it's more crowded. The bill of particulars identifies the target of these statements, as in Count IV, as: Women who were the subject of Defendant Jake

Baker's E-mail transmissions and Internet postings, including--but not limited to--Jane Doe, whose true name is known to Defendant Jake Baker and this Honorable Court. This Count, too, fails to meet the constitutional "true threat" standard. The class of potential targets, as discussed with regard to Count IV, is far too vague. As to the content of the communications, Baker indicates his "need TO DO IT." Like his earlier statements, this language indicates a desire to do something. While use of the word "need" indicates a strong desire, it still falls short "unequivocal, unconditional and specific expression of intention immediately to inflict injury," "needs" go unmet everyday. Baker next indicates, at most, an intention to meet Gonda at some indefinite point in the future-in the next week, month, or several months later. This statement does not express an unequivocal intention immediately to do anything. Also, nothing in the language on which the Count is based indicates any intention to commit specific acts if Baker and Gonda ever were to meet. Like the preceding four Counts, Count V fails to state a charge under §875(c) that can survive a First Amendment challenge, and must be dismissed. This prosecution presents the rare case in which, in the government's words, "the language set forth ... is so facially insufficient that it cannot possibly amount to a true threat." -----------------------------------------------------------------------------------UNITED STATES of America, Plaintiff-Appellant, v.

Abraham Jacob ALKHABAZ, also known as Jake Baker, Defendant-Appellee. United States Court of Appeals, Sixth Circuit Argued Aug. 16, 1996; Decided Jan. 29, 1997. Boyce F. Martin, Jr., Circuit Judge The district court dismissed the indictment against Baker, reasoning that the e-mail messages sent and received by Baker and Gonda did not constitute "true threats" under the First Amendment and, as such, were protected speech. The government argues that the district court erred in dismissing the indictment because the communications between Gonda and Baker do constitute "true threats" and, as such, do not implicate First Amendment free speech protections. …We conclude that the communications between Baker and Gonda do not constitute "communication[s] containing a threat" … . Even if a reasonable person would take the communications between Baker and Gonda as serious expressions of an intention to inflict bodily harm, no reasonable person would perceive such communications as being conveyed to effect some change or achieve some goal through intimidation. Quite the opposite, Baker and Gonda apparently sent e-mail messages to each other in an attempt to foster a friendship based on shared sexual fantasies. …We agree with the district court, that "[w]hatever Baker's faults, and he is to be faulted, he did not violate 18 U.S.C § 875(c)" … the judgment of the district court is affirmed. Krupansky, Circuit Judge, dissenting.

…Jake Baker (also known as Abraham Jacob Alkhabaz), an undergraduate student attending the University of Michigan in Ann Arbor, for some time prior to November 1994 and continuing until February 1995 was a regular contributor of sadistic fictional "short stories" intended for public dissemination and comment via a Usenet electronic bulletin board. The appellate record contains a substantial anthology of Baker's efforts. Overall, these misogynistic articles evince an extreme and morbid fascination with the concept of the physical and psychological abuse and torment of women and young girls, described in lurid detail, and often culminating in murder. The "Jane Doe story," which he named after an actual female classmate and which in fact is a relatively mild exemplar of the bestial genre of Baker's fiction, follows: (Last name of a specific female classmate of Baker's omitted). [Warning: Graphic violent and sexually explicit material follows] Prologue: The following story start [sic] in media res. The premise is that my friend Jerry and I have broken into the apartment of this girl, [FULL NAME OMITTED], whom I know from call [sic], and are porceeding [sic] to have a little fun with her. ('I' = the protagonist). Main: She's shaking with terror as Jerry and I circle her. She'd [sic] almost completely nude now--we've made her take off all her clothes except for her bra and

panties. As Jerry and I pass by her, we reach out and feel her velvety flesh, caress her breasts and ass through her underwear. Jerry and I snap pictures of her tiny trembling body from all angles. She says in a little, terrified voice, "Why are you doing this ... I've never hurt you ... p-please stop!" I pause in front of her. Jerry smiles at her terror. He laughs at her pitiful pleas. I say, "Shut the fuck up, stupid whore!" and hit the side of her head, hard. She collapses onto the ground, crying, curling up into a little ball. "Alright. Let's have some fun!" I yank her up by the hair and force her hands behind her back. I quickly get them restrained with duck [sic] tape. Her little body struggles against me as she screams for help. Jerry tears off her panties and shoves them into her delicious mouth, securing them with a tight strip of rope. She'd [sic] still struggling, screaming into the makeshift gag. I let her drop, to take pictures of her as she struggles against her bonds. As she's fighting there on the carpet, eyes wide with fear, Jerry and I strip. Jerry's got a hard on. I've got a hard on. We laugh. I grab her bra and rip it off her. Holding her still for Jerry, he fondles her breasts, feeling up her entire body. As she moans into the gag, Jerry comments on how soft she is. I slap her face several time, enjoying the smacking sounds my hand makes against her pink skin. Forcing her to her knees, I rub my cock into her face--over her cheeks and her eyes and her nose. She turns her head, closing her eyes with the humiliation, so I shove my prick as far as it will go

into her ear. Her inner cannals [sic] warm; I force it in harder, and my penis-head scrunches up to fit into the small hole, not quite making it. [FIRST NAME OMITTED] groans into her gag. Then, Jerry and I tie her by her long brown hair to the ceiling fan, so that she's dangling in mid-air. Her feet don't touch the ground. She kicks trying to hit me, Jerry or the ground. The sight of her wiggling in mid-air, hands rudely tied behind her back, turns me on. Jerry takes a big spiky hair-brush and start [sic] beating her small breasts with it, coloring them with nice red marks. She screams and struggles harder. I've separated her legs with a spreader-bar; now I stretch out her pussy- lips and super-glue them wide open. Then I take a heavy clamp, and tighten it over her clit. Once it's tight enough, I let go. I stand back, to take pictures. She's really nice now: Dangling by her hair (I can see where it's stretching her scalp), her breasts and belly are covered with bright red bruises. There's a heavy clamp stretching her cunt down. And best of all, her face is scrunched up in an agonized grimace. Drool and loud squeaks escape through her gag. She's so beautiful like this. Just to add to the picture, I take a steel-wire wisk and beat her ass with it, making bright red cuts that drip blood. [LAST NAME OMITTED]'s tiny pink body is now covered in sweat; nice and shiny in the light. Jerry tells me her curling-iron's ready. Jerry unplugs it and bring [sic] it over. After taking her down and tying her hunched over a chair, Jerry strokes the device against her bleeding ass cheeks. The heat from it gives her ass small burns. I smile and stroke my cock as she screams in pain and horror. She shakes her head and moans, "Nooo ... nooo" through

the gag. I walk in front of her, and remove the gag. Before she can even breath in, I ram my cock in her tiny mouth. Her lips squeeze against my shaft. The head of my prick finds its way down her lovely throat. That's when Jerry ram [sic] the hot curling iron into her tight asshole. She tries to scream, but I shove my cock's [sic] down her throat, and all she manages to do is gag on it. Her throat's quiverings tickle my cock, and I start humping her face furiously. The pain of the hot curling iron in her tender asshole sent her whole body into convulsions; her throat clenched against my cock. God! This felt so good. Leaving the iron up her asshole, Jerry reached out, pulled one of her small tits away form [sic] her body. Jerry took his knife, and cut her nipple off. She gags on my cock some more, and I pull out just in time to cum all over her pretty face. As I spew loads of hot white cum onto her face, Jerry continues to maul at her breasts. He pulls them as far as they'll go away from her body, twisting them to cause even more pain. Now that she doesn't have my cock down her throat, gagging her, [FIRST NAME OMITTED] howls out loud. It's not even a human sound. Her eyes glaze over from the pain and torture; a ball of my cum smacks her in the left eye. Spent, I go grab a beer and watch Jerry finish off play. When he pulls the curling iron from [FIRST NAME OMITTED]'s asshole, her sensitive skin is all burned. He pressed the head of his cock against the tortured opening. Jerry's got a savagely big dick, and would have hurt this girl even if her ass hadn't been burned. [FIRST NAME OMITTED] let out a small scream, but was too weak at this point to make it really loud. She only made fierce grunts as my

friend's cock tore apart the inside of her scorched asshole. I timed Jerry at this. He had a good constituition [sic]. For ten minutes he buggered poor pretty [FIRST NAME OMITTED]. Then he finally came inside her. Standing up, he walked around to see her face. Tears and sweat mixed with my cum on her cute face. Jerry grabbed a handful of her hair and pulled her face up to look. Her eyes, barely human, begged him to stop. He laughed aloud and gave her a firm smack. Her head jerked sideways with a snap. "C'mon, man, let's go." My friend said. So we got the gasoline and spread it all over [FULL NAME OMITTED]'s apartment. We chucked it over her. It must have burned like hell when it came into contact with her open cuts, but I couldn't tell. Her face was already a mask of pain, and her body quivered fiiercely [sic]. "Goodbye, [FIRST NAME OMITTED]" I said, and lit a match ... By November 1994, Baker's sadistic stories attracted the attention of an individual who called himself "Arthur Gonda," a Usenet service subscriber residing in Ontario, Canada, who apparently shared similarly misdirected proclivities. Baker and Gonda subsequently exchanged at least 41 private computerized electronic mail ("e-mail") communications between November 29, 1994 and January 25, 1995. Concurrently, Baker continued to distribute violent sordid tales on the electronic bulletin board. On January 9, 1995, Baker brazenly disseminated publicly, via the electronic bulletin board, a depraved torture-and-snuff story in which

the victim shared the name of a female classmate of Baker's referred to below as "Jane Doe" [FN3] This imprudent act triggered notification of the University of Michigan authorities by an alarmed citizen on January 18, 1995. On the following day, Baker admitted to a University of Michigan investigator that he had authored the story and published it on the Internet. FN3. Although the true name of "Jane Doe" was known to the district court and to this appellate forum, her identity has been concealed to spare this young woman any additional and unnecessary fear, emotional trauma, or embarrassment. The record reflected that during an interview concerning Baker's Jane Doe publication conducted by a University of Michigan investigator, Jane Doe "appeared to be controlling herself with great difficulty[,]" resulting in a recommendation for psychological counseling by University of Michigan personnel. Later that month, pursuant to Baker's written consent, university security personnel searched the defendant's dormitory room, personal papers, and computer files including his unique e-mail compartment. This investigation surfaced a second violent and reprehensible tale featuring Jane Doe's actual name, as well as her accurate residential address. The search of Baker's electronic mailbox disclosed a chilling correspondence between the defendant and Gonda chronicling the two men's plans of abduction, bondage, torture, humiliation, mutilation, rape, sodomy, murder, and necrophilia. Most ominously, these messages cumulated in a conspiracy between the two men to realize their aberrant e-mail discussions and exchanges by

implementing an actual abduction, rape, and murder of a female person. …Although the majority of this panel now affirms the judgment of the district court, it has avoided addressing the First Amendment issue. Instead it mandates, by judicial license, that the communications charged in the superseding indictment did not constitute "threats" of any kind because the panel majority interprets §875(c) to require, as a matter of law, that a "threatening" communication must be accompanied by an intent to intimidate or coerce someone to attain some "change" or "goal." It is obvious, however, from the concise language of 18 U.S.C. §875(c) that Congress refused to include an "intent to intimidate or coerce someone to attain some change or goal" as an element of the criminal act addressed therein: Whoever transmits in interstate or foreign commerce any communication containing ANY threat to kidnap ANY person or ANY threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both. 18 U.S.C. §875(c) (emphases added). The words in §875(c) are simple, clear, concise, and unambiguous. The plain, expressed statutory language commands only that the alleged communication must contain any threat to kidnap or physically injure any person, made for any reason or no reason. …Thus, the plain language of 18 U.S.C. §875(c), together with its interpretive precedents, compels the conclusion that "threats" within the scope of the statute in controversy include all reasonably credible

communications which express the speaker's objective intent to kidnap or physically injure another person … Because the communications charged against Baker could be found by a rational jury to constitute "threats" within the ambit of 18 U.S.C. §875(c), the district court's resolution that a rational jury could not find that any of these communications comprised constitutionally unprotected "true threats" is ripe for review. The Supreme Court has recognized that, while the First Amendment extends varying degrees of protection against government censure to most forms of expression (with political speech receiving the most stringent safeguards), certain forms of speech are deemed unworthy of any constitutional protection and consequently may be criminalized. A "threat" is a recognized category of expression which warrants no First Amendment protection. However, only communications which convey "true threats" (as opposed to, for example, inadvertent statements, mistakes, jests, hyperbole, innocuous talk, or political commentary not objectively intended to express a real threat) are "threats" outside the embrace of the First Amendment's guarantees. … … The panel majority may casually conclude within the security of chambers that Baker's threats conveyed to Jane Doe in his articles published on the Internet were nonintimidating. However, Jane Doe's reaction to those threats when brought to her attention evinces a contrary conclusion of a shattering traumatic reaction that resulted in recommended psychological counseling.

Accordingly, I would reverse the district court's judgment which dismissed the superseding indictment as purportedly not alleging "true threats," and remand the cause to the lower court. I DISSENT. Discussion Questions Discussion Question #1 What do you think of the Supreme Court's decision in the virtual child pornography case? The court said, "There are many things innocent in themselves, … such as cartoons, video games, and candy, that might be used for immoral purposes, yet we would not expect those to be prohibited because they can be misused." What do you think of the court equating virtual pornography, video games, and candy? Discussion Question #2 The Supreme Court declined to define the harm from child pornography as the harm of children abused by those who consume child pornography. How should the law define harm? Discussion Question #3 The Jake Baker Case is particularly disturbing as it shows the failure of the law to protect a victim when the harm is extremely visible. Do you agree with the court's analysis that the threats to the woman identified in the story or to the women who were likely targets of Baker's murder/rape/torture threats were too vague? Do you think this case would be decided differently today given the Internet's increased role in our daily lives? Discussion Question #4 What policy or law changes can you imagine to make

the Internet a safe space for women and children, a space which does not assault our bodily integrity? What sort of controls can you imagine that would prevent the harm that women and children currently suffer as a result of online pornography? How should the law go about balancing free speech interests and the right to bodily integrity, sexual autonomy, and physical safety?