Renewing Baker case threatens Net speech

Jake Baker is a wanted man once again.
Five months after a judge cleared him of federal charges stemming from an explicit rape-torture fantasy he posted on the Internet, the government is attempting to resuscitate its case against Baker. This appeal is bound to fail -- for the same compelling reasons the government's case was thrown out in the first place.

The government's appeal, filed last week, seeks to overturn a June 21 ruling by District Court Judge Avern Cohn that dismissed charges against Baker. The government had brought five counts of transmitting threats in interstate or foreign commerce for e-mail communications between Baker and an unidentified man in Canada known as Arthur Gonda. Federal agents first arrested Baker after learning of a sex fantasy he had posted on the Internet newsgroup alt.sex.stories. Baker's story was lurid and patently disgusting, but the government failed to prove that it represented a direct threat to the woman named as the target of Baker's sick fiction. Significantly, the government's case rested only on Baker's subsequent e-mail communications, which did not name any specific targets. The government was hard-pressed to prove those messages were a threat to anything but common decency.

Baker was suspended from the University last February and later jailed 29 days while awaiting trial. That trial never happened. Cohn, in an unambiguous opinion, scrapped the government's case during pre-trial deliberations. The judge's decision was born of respect for Baker's First Amendment right to distribute even material that violated standards of good taste. Baker is now attending another university -- and by all accounts, has maintained a low profile there. The government's dogged pursuit of its case comes less from a concern for the safety of the woman named in Baker's fantasy than a desire to regulate free speech on the Internet. As such, the appeal is especially dangerous.

"While new technology such as the Internet may complicate analysis and may sometimes require new or modified laws, it does not in this instance qualitatively change the analysis under the statute or under the First Amendment," Cohn wrote in June. Cohn's ruling is potentially precedent-setting. By affirming First Amendment protections for Baker's communications, Cohn was affording the Internet the same free-speech guarantees as other media. Reversing that blanket protection now would open the door to further legislative meddling in the Internet, which was foreshadowed last summer with a congressional bill to impose "decency" on the Internet.

Lawyers for the government and Baker are scheduled to deliver oral arguments to the Sixth Circuit Court of Appeals in Cincinnati, possibly by the end of the year. If the three appeals judges decide a trial is warranted, the case will return to the U.S. District Court in Detroit. For the sake of free speech in all arenas -- even distasteful speech in a developing arena -- the appeals judges should follow Cohn's lead and dismiss the case.