The Need for Care with “Thoughtcrime”

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When does an online fantasy cross the line into criminal conspiracy? That’s the issue the Second Circuit Court of Appeals is currently weighing in United States v. Gilberto Valle, the so-called “cannibal cop” case. EFF filed an amicus brief in support of Valle today, arguing that finding him guilty of conspiracy based on his online statements would put us in the scary realm of “thoughtcrime.”

Valle was a New York City police officer charged with and convicted of both conspiracy to kidnap and violating the Computer Fraud and Abuse Act (“CFAA”). Earlier this month, EFF filed a separate amicus brief in Valle’s appeal of his CFAA conviction, arguing that it was a dangerous expansion of criminal law. But the conspiracy charges are equally troubling, stemming from discussions Valle had in chat rooms on fantasy role-playing fetish websites involving cannibalism. The government alleged that these discussions were more than just fantasy role-playing, and actually a concerted criminal plot to kidnap and eat women.

The district court judge threw out the jury’s conspiracy verdict in an 118-page ruling, stating “the nearly yearlong kidnapping conspiracy alleged by the government is one in which no one was ever kidnapped, no attempted kidnapping ever took place, and no real-world, non-Internet-based steps were ever taken to kidnap anyone.” But the government has appealed the reversal of the conspiracy conviction, so EFF have filed another amicus brief in support of Valle, arguing that the trial court got it right.

The court ultimately believed—and we agree—that finding Valle guilty of conspiracy based on his online statements would hold him guilty of thoughtcrime (or “crimethink” in Newspeak). It’s understandable that a jury would find the discussions taking place in these chat rooms disgusting. Juries are instructed to leave emotion out of the deliberation room and to coldly apply the facts to the law, but that can be hard to do in cases involving controversial facts. That’s why it’s important for reviewing judges to independently examine the context of speech in order to determine whether speech loses its protected status and is fairly determined “criminal.”

That’s exactly what EFF tell the Second Circuit to do in their amicus brief: rather than simply deferring to the jury’s finding of guilt, the court needs to independently examine the context of the speech and determine whether it rises to conspiratorial speech that is criminal and unprotected by the First Amendment. Courts have routinely used their own independent review of speech to determine whether speech qualifies as soliciting or inciting a criminal act, slander, libel and other forms of unprotected speech. Our brief explains why it should be no different when it comes to speech alleged to be part of a criminal conspiracy. The Center for Democracy & Technology, Marion B. Brechner First Amendment Project, National Coalition Against Censorship, Pennsylvania Center for the First Amendment and a number of First Amendment and Internet law scholars also signed onto the amicus brief.

More critically, we note that this independent review is especially important in cases involving controversial facts like this one, to ensure that bad facts (and emotion-driven juries) don’t create bad law that will have an effect beyond the case at hand. The lower court’s meticulous review of the facts of the case and the speech at issue—ultimately concluding that Valle’s speech was fantasy rather than part of a true conspiracy—should serve as a blueprint for other courts looking at allegedly criminal speech. Hopefully the Second Circuit will follow the lower court’s lead and find—after conducting its own independent review—that Valle’s fantasies were not a criminal conspiracy.

Thanks to UCLA law professor Eugene Volokh of the Scott & Cyan Banister First Amendment Clinic for writing our amicus brief.

This article by Hanni Fakhoury and Jamie Williams originally appeared at Electronic Frontier Foundation.