Federal judge says man’s e-mail rants were true threats

Thursday, April 22, 1999

(Update: On June 11, U.S. District Judge Robert J. Bryan sentenced Carl Edward Johnson to three years, one month in prison.)

Declaring that a thin line separates free speech and criminal speech, a federal judge has ruled that a man who posted threatening e-mail about government officials and Bill Gates crossed the line.

Federal officials said that Carl Johnson, a part-time musician and computer devotee, had threatened Treasury Department agents and obstructed justice. Prosecutors claimed that Johnson posted at least three death threats on a “cypherpunks” listserv, an e-mail list devoted to encryption and code systems.

Johnson's trial began on April 12 and ended with U.S. District Judge Robert Bryan's guilty verdict on April 20. Johnson had requested a trial by judge rather than a jury.

Johnson's attorney, Gene Grantham, told the court that the postings weren't threatening but were satirical in nature. Grantham said many of Johnson's messages ranged from “Encrypted InterNet DEATH THREAT!!!” to “SPACE ALIENS HIDE MY DRUGS!!”

Such messages, Grantham argued, were clearly protected by the First Amendment.

But the judge disagreed, saying that ordinary people would view some of Johnson's threats as real. He said government officials and Microsoft founder Gates could realistically believe that someone was planning to kill them.

Bryan, however, dismissed another charge accusing Johnson of threatening a judge presiding over a legal challenge of White House encryption policies.

Bryan scheduled a June 11 sentencing date.

Paul McMasters, First Amendment ombudsman for The Freedom Forum, says the verdict holds several parallels to a case in which a Portland, Ore., federal jury recently determined that anti-abortion activists' rhetoric amounted to threats. The activists used The Nuremberg Files Web site and posters to distribute their threatening messages. The jury awarded Planned Parenthood and several abortion providers $107 million in damages.

McMasters said he was stunned that the judge ruled that Johnson's postings were threats.

“I found the messages that Carl Johnson allegedly sent to be rants, challenges, satire, inanities. But threats?” McMasters said. “Two or three cases don't make a trend, of course, but I worry about the court's eagerness to put this sort of speech outside the First Amendment's protection. What speech is it supposed to protect if not the speech on the fringe?”

UCLA law professor Eugene Volokh says online speech deserves broad protection “but, at the same time, the same restrictions that apply to speech outside cyberspace apply to speech in cyberspace. That means you cannot send true threats — threats that appear to be really true and not just casual hyperbole.”

And rightly so, Volokh says. But he says the courts still must determine the line between protected and unprotected speech.

In Watts v. U.S., a leading U.S. Supreme Court case on threatening speech from 1969, the majority of the justices ruled that a man protesting the draft hadn't issued a real threat when he said that he would shoot President Lyndon Johnson as soon as he was issued a rifle.

The court said the context of the man's speech made it clear that he wouldn't actually shoot the president.

“But it is rare that it is so clear,” Volokh said.

The professor added that he didn't know enough about the case to say if he felt Johnson had crossed a line, but “if there is something explicit in the message, by and large, the courts have been willing to find the threat, even if the message was somewhat ambiguous.”