The tragic events at Columbine High School in Littleton, Colorado have generated discussion regarding many interrelated topics. From a cyberspace law and policy perspective, many people are now considering the question of what constitutes a true threat in the online world.
Eric Harris and Dylan Klebold, the apparent perpetrators of the attack on school grounds that resulted in their own deaths as well as the deaths of 12 fellow students and 1 teacher, used computers regularly. And clearly the events of April 20, 1999 were related in some way to the information Harris & Klebold received online, the information they posted online, and/or their online activities in general.
Reports out of Colorado indicate that Harris had posted a series of online threats, dating back to early 1998. The N.Y. Times reported on April 28, 1999 that the parents of classmate Brooks Brown notified the County Sheriff's Department eight times last year with complaints that Harris had threatened their son. The couple said that after Harris chipped the windshield of their son's car, he created a computer game that revolved around destroying the Brown house and created a web site that featured a death threat against their son. On April 30, 1999, the Rocky Mountain News apparently reported that one of those online messages read: "...I can't wait until I can kill you people. I'll just go to some downtown area in some big (expletive) city and blow up and shoot everything I can...''
In addition, AP reported on April 30, 1999 that a message discovered on the Internet site for Newbury Park High School in Southern California contained threats to school officials and several students. The FBI was called in to help sheriff's deputies and a 15-year-old student's home was raided at 3 a.m. His computer was seized and he was arrested for investigation of making terrorist threats.
Case law regarding what constitutes a true threat outside of cyberspace includes the objective test set forth in Kelner, 534 F.2d 1020 (2d Cir. 1976), and the three-prong test set forth in Roy, 416 F.2d 874 (9th Cir. 1969). At the U.S. Supreme Court level, the justices have addressed threats against Presidents Lyndon Johnson and Richard Nixon in Watts, 349 U.S. 705 (1969), and Rogers, 422 U.S. 35 (1975). While the exact parameters of a precise test in this area have arguably not been articulated, Justice Marshall's dissent in Rogers might be a good starting point.
In the online world, cases concerning threats include:
· The Jake Baker Case (Univ. of Michigan), U.S. v. Alkhabaz, 104 F.3d 1492 (1997)
· The UC Irvine "Hate E-Mail" Case, U.S. v. Machado, No. SACR 96-142-AHS (S.D.Cal. 1998)
· The Oregon Anti-Abortion Web Site Case (February 1999)
It is important to note that "true threats" are not protected speech under the First Amendment. The question that arises in these cases is whether the online threats at issue are indeed true threats.
In light of recent events, many believe that the whole question of online threats might be viewed in a new light, and Judge Krupansky's lengthy dissent in Alkhabaz might be looked at with fresh eyes.
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