December 1, 2007

When will they arrest you in Wisconsin for commenting on a blog?

Here's the news from West Bend:
An Oak Creek High School teacher who allegedly praised the actions of the Columbine School shooters and threatened local teachers on a Web site blog was arrested Thursday. The 46-year-old Cudahy man was arrested with the assistance of Oak Creek and Cudahy police departments after West Bend police were notified of a threatening post on Nov. 16.

The actual blog [sic, blog comment], posted at 6:50 p.m. and provided in a release by the West Bend Police Department, states: “Looking at those teacher salary numbers in West Bend made me sick. $60,000 for a part time job were you ‘work’ maybe 5 hours per day and sit in the teachers lounge and smoke the rest of the time. Thanks God we won on the referendum. But whining here doesn't stop the problem. We've got to get in back of the kids who have had enough of lazy, no good teachers and are fighting back. Kids like Eric Harris and Dylan Klebold members of the Young Republicans club at Columbine. They knew how to deal with the overpaid teacher union thugs. One shot at a time! Too bad the liberals rip them; they were heroes and should be remembered that way.”

The man, who admitted to posting the message, was arrested and a search warrant was served at his home. He is in custody at the Washington County Jail and charges of disorderly conduct and unlawful use of computerized communication systems will be referred to the Washington County District Attorney’s office. The Cudahy man has no previous arrest record that the police department is aware of, according to a statement.
Unlawful use of computerized communication systems? Are you wondering about the scope of that crime (in case you might want to rein in your comments around here)? It's part of the law against stalking, here. (Wisconsin statute, § 947.0125 — scroll down to "Unlawful use of computerized communication systems"). It's not limited to threats of violence. It even covers a person who "[w]ith intent to frighten, intimidate, threaten or abuse another person, sends a message on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the message and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act." That's a tad overbroad. It's a Class B forfeiture if someone "[w]ith intent solely to harass another person, sends repeated messages to the person on an electronic mail or other computerized communication system." Apparently, repeating yourself is a crime around these parts.

The man who was arrested did not even direct his message at a target. He merely posted an overheated political statement saying that a certain sort of person — not even named individuals — ought to be shot.

Now, another angle here is that the blogger — Owen of Boots & Sabers — provided the police with the IP address of the commenter. The police contacted him after someone saw the comment and filed a complaint, and Owen "assumed that [the police] would find him, chew him out a bit for being an idiot, and leave it alone."
At first blush, I think [the arrest is] a gross overreaction for a comment left on a blog. Yes, the comment was idiotic and over the top, but it hardly constitutes a direct threat to anyone. It was explained to me that it was not believed that the commenter had any intent to harm anyone, but that the mere presence of a comment appearing to condone such violence had to be punished because it might encourage someone else to engage in violence against schools....

It appears to me that the commenter is attempting to do one of two things. Option 1: the commenter is a right wing whack job that isn’t violent, but likes to engage in outlandish rhetoric. Option 2: the commenter is a liberal who is trying to discredit conservatives by acting like option 1.

As you can see from the story, the commenter is actually a union teacher from Oak Creek, but it gets more interesting than that. The commenter was also once the president of his local teachers’ union. This leads me to believe that Option 2 is the truth. This commenter is just a liberal union teacher who was trying to make conservatives look bad by pretending to be one and acting like an imbecile.
Oh, no! It would be funny, except that it's not at all funny. The guy doesn't deserve to be arrested.

In a later post, Owen considers whether he should have voluntarily turned over the IP address and decides that he feels "no obligation whatsoever to protect commenters’ information from law enforcement," and he, understandably, is averse to having some stupid comment on his blog draw him into a problem with the police. But do you think, considering how much this law burdens free speech, that we ought to say no when we think there is no credible threat or serious harassment aimed at a particular individual? I'm not knocking Owen for what he did, because he was caught off guard and, it seems, somewhat intimidated by the police himself.

41 comments:

MadisonMan said...

At the risk of being arrested: What a stupid law. It reads like it was a law written in reaction to some event. Thus, like most zero toleranace laws, it horribly vague and it punishes just about anything.

john said...
This comment has been removed by the author.
john said...

Gee, this might chill a few commenters here. Does anyone know if there are similar statutes in other states, or fed law?

By the way, this is my new indemnification clause*

*Disclaimer: Nothing in this comment shall be interpreted as having any intent to defame, stalk, intimidate, or otherwise violate any statute, law, common or otherwise, regulation, or custom, including any and all parts of the Digital Millenium Act, the amended War Crimes Act, and the Patriot Act. Client (you) shall indemnify and hold harmless (me) from any and all claims, suits, liability, damage, injury, expense, including reasonable attorney's fees or other loss arising from a) Client's misinterpretation of anything stated in this communication, b) Client’s negligence or willful misconduct in connection with the interpretation of anything stated in this communication, c) repeating myself.

vnjagvet said...

John:

May I reference your disclaimer language on all comments I might make in the future?

For a "liberal" state, this sure is a reactionary law. Poorly drafted and unconstitutional, too.

I have the impression that the blogger displayed a touch of passive aggressiveness by turning in the commenter to "authorities" when he could have just deleted the comment with a warning.

john said...

vnjagvet -

1. Tried to run this language by counsel. 2. Decided I could not email it for fear of legal repercussions. 3. Drove it downtown. 3. Counsel does not work on Saturday.

You are on your own.

John Z. said...

I predict he will ultimately get a pass for this. It's obvious that the commenter was just trying to educate the readers of the blog on how those eeevil gun-totin' strawman conservatives really think.

Recall the incident at George Washington University last October. In advance of David Horowitz' "Islamo-fascist awareness week", some really over-the-top, hateful posters turned up on campus. At first, when the administration thought the posters had been put up by conservatives, they were ready to expel the guilty parties. When it turned out leftist students had put them up to expose the evils of conservatism -- well, that was a different story. No harm, no foul!

Zeb Quinn said...

Free speech and all that, but using that fanciful notion to encourage and nudge these particular adolescent reprobates even further down the road towards gross irresponsibility is woefully misplaced.

former law student said...

Oh my dear lord: Owen of Boots & Sabers — provided the police with the IP address of the commenter. The police contacted him after someone saw the comment and filed a complaint, and Owen "assumed that [the police] would find him, chew him out a bit for being an idiot, and leave it alone."

Does Owen live in some 50s disney suburbia where the fire department passes the time by getting cats out of trees and the police department mostly chides the misguided who may be doing 36 in a 35 zone?

Funnily enough, we should all expect the police to enforce whatever laws we give them to enforce.

Trooper York said...

Jimmy 'Popeye' Doyle: All right! You put a shiv in my partner. You know what that means? Goddammit! All winter long I got to listen to him gripe about his bowling scores. Now I'm gonna bust your ass for those three bags and I'm gonna nail you for picking your feet in Poughkeepsie.
(The French Connection, 1971)

Simon said...

vnjagvet that "the" law (presumably § 947.0125) is "unconstitutional." Which part and why?

jawats said...

It would be nice to have someone be arrested for posting something intelligent and chock-full of good criticism of a public figure. Defending free speech of people like this gives one a bad taste in the mouth.

Simon said...

jawats said...
"It would be nice to have someone be arrested for posting something intelligent and chock-full of good criticism of a public figure. Defending free speech of people like this gives one a bad taste in the mouth."

Law that protects the innocent is often made in the process of - and even when not, often ends up - protecting the guilty just as much.

Eric said...

The statement by the teacher was obvious left wing sarcasm, and not much different than the many sarcastic Nazi comparisons which are made routinely.

Suppose he'd said this:

"....whining here doesn’t stop the problem. We’ve got to get in back of the kids who have had enough of lazy, no good teachers and are fighting back. Kids like the Nazis' Hitler jugend! They knew how to deal with the overpaid teacher union thugs. One shot at a time! Too bad the liberals rip them; they were heroes and should be remembered that way."

Tasteless and hateful, even vile. But criminal? How?

Lefty John said...

Ann, apropos of my comments on your post about local police, marijuana and the federal drug law, do you think I'm "a right wing whack job that isn’t violent, but likes to engage in outlandish rhetoric"?

class-factotum said...

part time job were you ‘work’

President of the teachers' union and he doesn't know the difference between "were" and "where?"

JohnAnnArbor said...

President of the teachers' union and he doesn't know the difference between "were" and "where?"

Not that big a surprise, when you think about it. Teacher's unions aren't exactly about accountability and quality education.

John Foust said...

This idiot teacher was merely trying to blend in by imitating the spelling, typing and logic skills of many other B&S commenters. Read a few comments to find other examples. I can't wait for other bloggers to find more examples of vaguely threatening or misanthropic rants on other Wisconsin politics blogs. I'd start at Texas Hold 'Em.

Like many blogs, B&S allows anonymous commenters. Enter any name, enter any email address, enter any URL, no moderation. Your IP may be logged, of course, and a cookie comes along. The blog owners can peek at that info to see clues as to who posted what.

Sure, you don't have an expectation of deep privacy, but they've also abused this power for fun and profit. I've seen them "out" someone when they didn't like what they were saying. For example, B&S's Owen revealed that someone was posting from a governmental IP address in order to discredit the person's opinion. Nice, huh?

Yet in another case , they don't reveal their IP evidence when it would clearly prove or disprove their slurs against a commenter - me. I comment on B&S's comments on my blog.

The deeper and far funnier story, in a karmic or ironic sort of way, is that Owen had led an AFP-sponsored robo-calling effort against West Bend's school referendum a month or so ago. School officials might've been eager to pin a threat on a B&S commenter. Who knew it would turn out to be a teacher from a different school district?

It only goes to show you - on many conservative blogs, you'll have a hard time telling the difference between the real posts and the fake ones.

jeff said...

"It only goes to show you - on many conservative blogs, you'll have a hard time telling the difference between the real posts and the fake ones."

Right. As opposed to the non conservative blogs where NOTHING is ever over the top.

John Lynch said...

I feel people should be responsible for what they write. It's not any different on the internet. If you threaten people, then you shouldn't be surprised if someone believes it.

It's not really a question of internet comments, but of what people can say in public.

If what the commenter said counts as a threat (I don't think it does), then the fact that it was on the internet doesn't matter.

Anonymity isn't the issue. If we want people to be able to say things that like that, then we should be able to say them under our own names. Trying to hide behind internet anonymity acknowledges that we can't say them otherwise.

So own up to what you say as yourself, and be prepared for the consequences. I don't think this blog or any other has any responsibility to protect me. If I say something, I should be judged as an individual.

I've never felt that anything I've written shouldn't be public, and I write with that consideration in mind. I think it keeps me from saying stupid things.

A professor at a local college was fired a while back for saying something very similar- that liberal professors should be shot. He wrote it on one of those news ticker anouncement signs that used to be popular.

Threatening people is chilling speech, too. I don't think this case rises to that, especially since I doubt he meant for anyone at his school would ever read it.

Fred said...

If you have nothing nice to say, just don't say it at all...

Seriously, though, if a commenter is making a serious threat, that is one thing. Making a complete ass out of yourself, on the other hand, isn't grounds for the State to get involved.

I had a heated exchange on one of my blogs recently:

Someguy says: "I would employ torture (I’m talking about real torture, not crap like waterboarding) against people who fly little American girls into the sides of buldings with no qualms whatsoever."

Someotherguy says: "Nice appeal to emotion, You forget that the Pentagon was also targeted, a legitimate one in my opinion.

Some would be quick to delete posts, censor or tell people to shut their pie holes. I politely asked them to not use such language and to please respect one another.

The fact is, this is how people feel! Rage, hate, and anger are often invoked by certain topics and sometimes you have to let people vent and maybe gently remind them they are not doing their position on the matter any justice by appealing entirely to emotion and posting hate-driven comments.

I think it's important from a historical standpoint to not interfere unless there is a real threat. It allows people to learn about the psychology and nature of certain controversies and the ways people respond to certain feedback. Am I encouraging hate and anger by allowing such freedom? Maybe I'm helping to expose the ugly side of politics, War, and American and international sentiment?

It's my opinion that we should always err on the side of liberty when a question of "security" vs. "freedom" arises. To do otherwise encourages a perversion of the law that undermines our civil liberties.

AJ Lynch said...

They said our right to free speech would be restricted if George Bush was elected.

Heh - wanted to say that before Instapundit beat me to it.

Tim said...

"Owen considers whether he should have voluntarily turned over the IP address and decides that he feels "no obligation whatsoever to protect commenters’ information from law enforcement," and he, understandably, is averse to having some stupid comment on his blog draw him into a problem with the police."

This can be a tough call. Usually they're bluffing, but the news is filled with reports of threats carried out all too often. A long time ago I had job in which someone threatened to kill me; procedure required the threat to be reported to the F.B.I.; the F.B.I. called the guy, told him he'd better hope nothing ever happened to me, because if it did, his door would be the first upon which they'd knock. Anyway, he called me back a few minutes later, falling all over himself to apologize - and I never heard from or saw him ever again. And I'm pretty damned sure he thought twice about threatening anyone after that. The local police probably do not scare some folks like the F.B.I. though, so who knows if a call from them in this case would have been sufficient.

Revenant said...

That was indeed a monumentally stupid blog comment, but I don't see what was illegal about it.

vnjagvet said...

Simon:

Here's the language that Ann cited:
"who [w]ith intent to...intimidate, threaten or abuse another person, sends a message on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the message and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act"...is a criminal.

That language seems to me to preclude epithets like "f*ck you" when intended to "intimidate" someone from continuing to comment on a blog, or to post thoughts contra those favored by the alleged intimidator.

I agree with Ann that if this were applied to the above situation, it would be too broad under current interpretations of the First Amendment to survive judicial scrutiny.

Tacky, yes. Criminal, no.

reader_iam said...

Owenunderstandably, is averse to having some stupid comment on his blog draw him into a problem with the police. Yeah, but I'd bet his reaction had at least as much to do with the concept better captured by the word "adverse."

reader_iam said...

A cautionary note for us all.

Dave Atkins said...

Thanks for filling in the gaps in this story. I just saw it on the local news--typical short little piece: teacher called Columbine killers "heroes," was arrested. Even the newspaper articles from jsonline.com didn't seem to think there was a need to elaborate on why "one shot at a time" is adequate to get the police tracking you down and arresting you.

Do you think a person who stands up and identifies himself, then makes a sarcastic, in terrible taste comment, would face the same potential risk? Is part of the supposed crime the anonymity of the statement--which, in the perspective of the potential targets of the potential violence--make it impossible to ascertain whether there is a more substantial threat behind the mere words? It doesn't sound like "FIRE!" in a crowded theater to me.

More disturbing to me these days is how stuff like this doesn't seem to bother anyone--that the local news can simply report that someone did something we think was stupid, inappropriate, and that we disagree with--but he's been arrested now, so don't worry.

Kirk Parker said...

I certainly wouldn't turn over IP address to anyone who just asked, badge or no badge. Need to have it? Convince a judge you need a search warrant. (Come on, it's not that big an impediment, is it?)

Randy (Internet Ronin) said...

Defending free speech of people like this gives one a bad taste in the mouth.

It is easy to grant free speech to those who stay within whatever boundaries exist at any given moment. Only when we stand up for the right of the despicable to be despicable do we do anything to guarantee that our own free speech remains free. Each time we fail to do so, we run the risk of witnessing the tightening of those boundaries and the spread of subtle (and no subtle) efforts at thought control and the legislation of thought crimes.

reader_iam said...

Each time we fail to do so, we run the risk of witnessing the tightening of those boundaries ...

Which risk has been realized, rather markedly, over and over again. To the point that I'm tempted to say that we don't just "run the risk of witnessing" tightened boundaries, but rather ought to know that we're countenancing the squeeze.

hdhouse said...

Yahoo news had a "comment on this story" and ran the disclaimer about IP addresses and that they were under a legal obligation through the patriot act to supply this information to anyone in law enforcement who requested it. I think it is section 505.

doesn't this come into play here?

Randy (Internet Ronin) said...

doesn't this come into play here?

It could, although demands for IP addresses of anonymous commenters were not all that infrequent before its enactment. The Patriot Act just makes it easier to justify and easier to supply the requested information. The big difference is that, before its enactment, the only way to get the information if it was initially refused was to get a subpoena authorized by an independent member of the judiciary. Now all it takes are two members of the FBI who decide among themselves that a subpoena is appropriate. And the person subpoenaed can be forbidden to tell anyone, including their lawyer, that they have been subpoenaed. Yet another reminder to be careful what you wish for - might just get it good and hard.

Dust Bunny Queen said...

"who [w]ith intent to...intimidate, threaten or abuse another person, sends a message on an electronic mail or other computerized communication system with the reasonable expectation that the person will receive the message and in that message uses any obscene, lewd or profane language or suggests any lewd or lascivious act"...is a criminal.

Like these messages that Ann's stalker Mary spammed all over my blog???

Does your husband want to play?

You girls are in free; he'll have to pay. Any chanc he can hold a video camera steady while you do your work?

Sorry, no royalties, but think of the fame, Hot Mama. Yeah, that's what we'll call you, Hot Mama on her Knees. Now, what's your baby girl's stage name? DBP?


Nice. This is why I have closed my profile.

Do I think that I or my daughter is in any danger from Mary? Can she figure out where we are and find us in real life? Probably not. Do I feel personally threatened? Not really....just annoyed. Do I think that she needs some serious mental health intervention? You bet.

However, the fact that people can say all kinds of ridiculous, intemperate and stupid things on the internet is a growing trend. I agree with John Lynch. People should be held responsible for what they write and say whether on the Internet or elsewhere when it is threatening.

Merely expressing opinions that someone is an idiot or any other epithet doesn't amount to a threat. That's just sticks and stones and most people are not going to commit suicide from being called names. However, including threats (whether you really mean then or not) of bullet, bodily harm, harm to others, harm to your property or stalking is criminal and needs to be investigated.

It is a pretty fine line between "I was just joking" and "I'm really expressing ideas that I will act on". People need to be aware that their actions can have consequences and that the anonymity of the internet doesn't give immunity from responsibility of their actions.

SGT Ted said...

Does anyone else see language in the innertubes harrassment law similar to sexual harrassment statutes? That sort of nebulous greater weight given to interpretations vs intent? Thats what I'm seeing.

vnjagvet said...

That's what's happening, Sgt. Ted.

But sexual harrassment gives rise to civil liability, not criminal activity -- unless it amounts to an assault or battery.

Simon said...

hdhouse said...
"Yahoo news had a 'comment on this story' and ran the disclaimer about IP addresses and that they were under a legal obligation through the patriot act to supply this information to anyone in law enforcement who requested it. I think it is section 505. doesn't this come into play here?"

I think you're thinking of § 210, which amends 18 U.S.C. § 2703(c)(2) (the Stored communications Act, as amended). But my question would be -- and this goes for § 207 of CALEA as well, which uses the same "provider of electronic communication service or remote computing service" language -- whether a provision that would seem on its face to apply to internet service providers would also apply to internet-based content providers. Arguably, Blogger (that is, the google-owned platform/toolset) is "[a] provider of electronic communication service or remote computing service," but is Althouse, as the author / publisher of this blog? Does Yahoo news provide a remote communication service - after all, if you call me up, my telephone company and your telephone company are providing a communications service by allowing us to talk, but are you and I each providing a communications service to one another by speaking? That would seem counterintuitive. Presumably there are mixed cases, too -clearly, AOL qua a service provider falls within the requirements of both CALEA and the Stored Communications Act, but does AOL's news website fall under the same reporting requirements?

reader_iam said...

DBQ. Been there (similar circumstances) a couple of times 18-ish months ago, including references to my kid and visitors. If you feel like it, e-mail me. (See my profile.)

hdhouse said...

Simon....just a thought - there is a lot of software and anonymous hosting/connection sites that provide IP address numbers. Now set that aside.

There are a number of states that have laws the make radar detectors illegal devices. Now I realize this is at the state level and not a federal law, but isn't there a parallel between a radar detector and the banning of it and the use of software or services that mask an IP address?

What I find interesting is the application of federal law in and by local law enforcement.

Michael said...

A lefty strawman sock-puppet gets arrested?

Anyone seen titus recently? Or Moby?

Simon said...

Harry,
Wonderful question. I don't know if this answers it or not, but I suppose there's at least one difference (although I don't know how much weight it bears): a radar detector is designed for the sole purpose of doing something that is in itself illegal and escaping detection by authorities, while an IP address obscurer (for want of a better term) facilitates something that isn't in itself illegal. I would think that we can differentiate between a tool that directly facilitates illegal conduct, on the one hand, and a tool that can indirectly faciliate illegal conduct on the other. I don't know what the courts have said about the issue, but in the abstract, I wonder if we could borrow a concept from copyright law? In Sony v. Universal City Studios, 464 U.S. 417 (1984), the court pondered at a case where a copyright holder sued Sony on the theory that Sony sold a device - the VCR - that was not itself an infringement yet facilitated infringement, thereby nailing Sony for contributory infringement (as you can imagine, this case takes on new importance in the recent file sharing cases, as I previously discussed (PDF warning)). The Sony court said that this theory wasn't going to fly, and that "the sale of copying equipment … does not constitute contributory infringement if the product is widely used for legitimate, unobjectionable purposes. Indeed, it need merely be capable of substantial noninfringing uses." I wonder if you could apply similar reasoning to radar detectors and IP address obscurers: a radar detector isn't capable of any "legitimate, unobjectionable ... noninfringing uses" functions, it seems to me, while an IP address obscurer might well be used for purposes that are - under one definition or another - unobjectionable. After all, if not for IP anonymizers, how would the Chief Justice manage to maintain his cover when commenting pseudononymously at Volokh? ;)

Maria said...

This is stupid. commenting in a blog post is very common so I think this law suck.
==>mens dress pants