Making Women's Place Explicit:

Pornography, Violence, and the Internet

This module was composed by Jennifer Nash
The most visible way in which the Internet has
enabled violence against women by allowing for the
proliferation of pornographic images. In this module,
we will examine the creation, consumption, and
content of Internet pornography in order to
understand the Internet's role in the perpetuation of
violence against women. Using feminist critiques of
pornography as a background, we will delve into an
analysis of Internet pornography as a business and
examine the ways in which this enormous industry
has profited from distributing sexist and violent
images. Furthermore, we will look at the ways in
which the Internet enables violence against children
through allowing the anonymous circulation of child
pornography. Specifically, we will learn about the
virtual child pornography case that the Supreme
Court just decided. Finally, we will discuss the recent
cases of sex abuse involving priests and child
pornography.
Readings:
1. Case Study: Virtual Child Pornography

2. Child Pornography

3. Pervasive, Popular, Profitable and Private: The

Economics of Internet Pornography
4. The Civil Rights Approach

5. The Internet, Pornography, Race and

Representation
6. Violent Repercussions of Pornography (Intro)
 I. The Role of Pornography in Predisposing
Some Males to Want to Rape
II. The Role of Pornography in Undermining
Some Males' Internal Inhibitions Against Acting
out the Desire to Rape
III. Constitutional Language
7. Case Study: The Jake Baker Case and Violence
Against Women on the Internet
8. Discussion Questions

Case Study: Virtual Child Pornography

9.
On April 16, 2002, the Supreme Court struck
down Congress' ban on virtual child pornography
(Child Pornography Prevention Act) asserting that
The First Amendment protects pornography using
virtual images of children. The Court expressed a
number of interesting concerns. First, there was a
concern that the ban on virtual child pornography
would have harmful effects on non-pornographic
work. In fact, the Court specifically mentioned the
movies American Beauty, Traffic, and Lolita. Each
film depicts sex scenes with minors. The court
was concerned that acclaimed movies containing
sex scenes with actors who either are minors or
presumably minors would be banned by the Child
Pornography Prevention Act. Furthermore, the
Court was presumably unconvinced by studies
linking consumption of child pornography and the
sexual abuse of children. The Court noted that,
"There are many things innocent in themselves,
 … such as cartoons, video games, and candy,
that might be used for immoral purposes, yet we
would not expect those to be prohibited because
they can be misused." Because the potential
harm in virtual child pornography does not stem
from its production and because of a desire to
protect free speech, the Court determined that
Congress' ban on virtual child pornography was
overbroad and unconstitutional(See also
http://www.nytimes.com/2002/04/17/national/17P
ORN.html for more about the decision.).
Consider this excerpt from The Supreme Court's
decision.
10. JOHN D. ASHCROFT ATTORNEY GENERAL, et
al., PETITIONERS
v.
THE FREE SPEECH COALITION et al.
No. 00-795
United States Supreme Court.
Argued October 30, 2001
Decided April 16, 2002
11.JUSTICE KENNEDY delivered the opinion of the
Court.
12. We consider in this case whether the Child
Pornography Prevention Act of 1996 (CPPA),
abridges the freedom of speech. The CPPA
extends the federal prohibition against child
pornography to sexually explicit images that
appear to depict minors but were produced
without using any real children. The statute
prohibits, in specific circumstances, possessing or
distributing these images, which may be created
by using adults who look like minors or by using
computer imaging. The new technology,
 according to Congress, makes it possible to
create realistic images of children who do not
exist. …
13.The principal question to be resolved, then, is
whether the CPPA is constitutional where it
proscribes a significant universe of speech that is
neither obscene … nor child pornography.
14.
I
15.
Before 1996, Congress defined child pornography
as … images made using actual minors. The
CPPA retains that prohibition at 18 U. S. C.
§2256(8)(A) and adds three other prohibited
categories of speech, of which the first, §2256(8)
(B), and the third, §2256(8)(D), are at issue in this
case. Section 2256(8)(B) prohibits 'any visual
depiction, including any photograph, film, video,
picture, or computer or computer-generated
image or picture' that 'is, or appears to be, of a
minor engaging in sexually explicit conduct.' The
prohibition on 'any visual depiction' does not
depend at all on how the image is produced. The
section captures a range of depictions,
sometimes called 'virtual child pornography,'
which include computer-generated images, as
well as images produced by more traditional
means. For instance, the literal terms of the
statute embrace a Renaissance painting depicting
a scene from classical mythology, a 'picture' that
'appears to be, of a minor engaging in sexually
explicit conduct.' The statute also prohibits
Hollywood movies, filmed without any child
actors, if a jury believes an actor 'appears to be' a
 minor engaging in 'actual or simulated ... sexual
intercourse.' §2256(2).
16. These images do not involve, let alone harm, any
children in the production process; but Congress
decided the materials threaten children in other,
less direct, ways. Pedophiles might use the
materials to encourage children to participate in
sexual activity. '[A] child who is reluctant to
engage in sexual activity with an adult, or to pose
for sexually explicit photographs, can sometimes
be convinced by viewing depictions of other
children 'having fun' participating in such activity.'
Furthermore, pedophiles might 'whet their own
sexual appetites' with the pornographic images,
'thereby increasing the creation and distribution of
child pornography and the sexual abuse and
exploitation of actual children.' Under these
rationales, harm flows from the content of the
images, not from the means of their production. In
addition, Congress identified another problem
created by computer-generated images: Their
existence can make it harder to prosecute
pornographers who do use real minors. As
imaging technology improves, Congress found, it
becomes more difficult to prove that a particular
picture was produced using actual children. To
ensure that defendants possessing child
pornography using real minors cannot evade
prosecution, Congress extended the ban to virtual
child pornography.
17.Section 2256(8)(C) prohibits a more common
and lower tech means of creating virtual images,
known as computer morphing. Rather than
creating original images, pornographers can alter
 innocent pictures of real children so that the
children appear to be engaged in sexual activity.
Although morphed images may fall within the
definition of virtual child pornography, they
implicate the interests of real children.
Respondents do not challenge this provision, and
we do not consider it.
18. Respondents do challenge §2256(8)(D). Like the
text of the 'appears to be' provision, the sweep of
this provision is quite broad. Section 2256(8)(D)
defines child pornography to include any sexually
explicit image that was 'advertised, promoted,
presented, described, or distributed in such a
manner that conveys the impression' it depicts 'a
minor engaging in sexually explicit conduct.' One
Committee Report identified the provision as
directed at sexually explicit images pandered as
child pornography. ('This provision prevents child
pornographers and pedophiles from exploiting
prurient interests in child sexuality and sexual
activity through the production or distribution of
pornographic material which is intentionally
pandered as child pornography'). The statute is
not so limited in its reach, however, as it punishes
even those possessors who took no part in
pandering. Once a work has been described as
child pornography, the taint remains on the
speech in the hands of subsequent possessors,
making possession unlawful even though the
content otherwise would not be objectionable.
19.Fearing that the CPPA threatened the activities
of its members, respondent Free Speech
Coalition and others challenged the statute in the
United States District Court for the Northern
 District of California. The Coalition, a California
trade association for the adult-entertainment
industry, alleged that its members did not use
minors in their sexually explicit works, but they
believed some of these materials might fall within
the CPPA's expanded definition of child
pornography. …
20.II
21.
The First Amendment commands, 'Congress shall
make no law ... abridging the freedom of speech.'
The government may violate this mandate in
many ways, but a law imposing criminal penalties
on protected speech is a stark example of speech
suppression. The CPPA's penalties are indeed
severe. A first offender may be imprisoned for 15
years. A repeat offender faces a prison sentence
of not less than 5 years and not more than 30
years in prison. While even minor punishments
can chill protected speech, this case provides a
textbook example of why we permit facial
challenges to statutes that burden expression.
With these severe penalties in force, few
legitimate movie producers or book publishers, or
few other speakers in any capacity, would risk
distributing images in or near the uncertain reach
of this law. The Constitution gives significant
protection from overbroad laws that chill speech
within the First Amendment's vast and privileged
sphere. Under this principle, the CPPA is
unconstitutional on its face if it prohibits a
substantial amount of protected expression.
22.The sexual abuse of a child is a most serious
crime and an act repugnant to the moral instincts
 of a decent people. In its legislative findings,
Congress recognized that there are subcultures
of persons who harbor illicit desires for children
and commit criminal acts to gratify the impulses.
Congress also found that surrounding the serious
offenders are those who flirt with these impulses
and trade pictures and written accounts of sexual
activity with young children.
23. Congress may pass valid laws to protect children
from abuse, and it has. The prospect of crime,
however, by itself does not justify laws
suppressing protected speech. It is also well
established that speech may not be prohibited
because it concerns subjects offending our
sensibilities. As a general principle, the First
Amendment bars the government from dictating
what we see or read or speak or hear. The
freedom of speech has its limits; it does not
embrace certain categories of speech, including
defamation, incitement, obscenity, and
pornography produced with real children. While
these categories may be prohibited without
violating the First Amendment, none of them
includes the speech prohibited by the CPPA. …
24. The CPPA prohibits speech despite its serious
literary, artistic, political, or scientific value. The
statute proscribes the visual depiction of an idea--
that of teenagers engaging in sexual activity--that
is a fact of modern society and has been a theme
in art and literature throughout the ages. Under
the CPPA, images are prohibited so long as the
persons appear to be under 18 years of age. This
is higher than the legal age for marriage in many
States, as well as the age at which persons may
 consent to sexual relations. (48 States permit 16-
year-olds to marry with parental consent); (in 39
States and the District of Columbia, the age of
consent is 16 or younger). It is, of course,
undeniable that some youths engage in sexual
activity before the legal age, either on their own
inclination or because they are victims of sexual
abuse.
25. Both themes--teenage sexual activity and the
sexual abuse of children--have inspired countless
literary works. William Shakespeare created the
most famous pair of teenage lovers, one of whom
is just 13 years of age. See Romeo and Juliet, act
I, sc. 2, l. 9 ('She hath not seen the change of
fourteen years '). In the drama, Shakespeare
portrays the relationship as something splendid
and innocent, but not juvenile. The work has
inspired no less than 40 motion pictures, some of
which suggest that the teenagers consummated
their relationship. Shakespeare may not have
written sexually explicit scenes for the
Elizabethean audience, but were modern
directors to adopt a less conventional approach,
that fact alone would not compel the conclusion
that the work was obscene.
26. Contemporary movies pursue similar themes.
Last year's Academy Awards featured the movie,
Traffic, which was nominated for Best Picture.
The film portrays a teenager, identified as a 16-
year-old, who becomes addicted to drugs. The
viewer sees the degradation of her addiction,
which in the end leads her to a filthy room to trade
sex for drugs. The year before, American Beauty
won the Academy Award for Best Picture. In the
 course of the movie, a teenage girl engages in
sexual relations with her teenage boyfriend, and
another yields herself to the gratification of a
middle-aged man. The film also contains a scene
where, although the movie audience understands
the act is not taking place, one character believes
he is watching a teenage boy performing a sexual
act on an older man.
27. Our society, like other cultures, has empathy and
enduring fascination with the lives and destinies
of the young. Art and literature express the vital
interest we all have in the formative years we
ourselves once knew, when wounds can be so
grievous, disappointment so profound, and
mistaken choices so tragic, but when moral acts
and self-fulfillment are still in reach. Whether or
not the films we mention violate the CPPA, they
explore themes within the wide sweep of the
statute's prohibitions. If these films, or hundreds
of others of lesser note that explore those
subjects, contain a single graphic depiction of
sexual activity within the statutory definition, the
possessor of the film would be subject to severe
punishment without inquiry into the work's
redeeming value. This is inconsistent with an
essential First Amendment rule: The artistic merit
of a work does not depend on the presence of a
single explicit scene. …
28. Ferber upheld a prohibition on the distribution and
sale of child pornography, as well as its
production, because these acts were 'intrinsically
related' to the sexual abuse of children in two
ways. First, as a permanent record of a child's
abuse, the continued circulation itself would harm
 the child who had participated. Like a defamatory
statement, each new publication of the speech
would cause new injury to the child's reputation
and emotional well-being. Second, because the
traffic in child pornography was an economic
motive for its production, the State had an interest
in closing the distribution network. 'The most
expeditious if not the only practical method of law
enforcement may be to dry up the market for this
material by imposing severe criminal penalties on
persons selling, advertising, or otherwise
promoting the product.' Under either rationale, the
speech had what the Court in effect held was a
proximate link to the crime from which it came. …

In contrast to the speech in Ferber, speech that

itself is the record of sexual abuse, the CPPA
prohibits speech that records no crime and
creates no victims by its production. Virtual child
pornography is not 'intrinsically related' to the
sexual abuse of children, as were the materials in
Ferber. While the Government asserts that the
images can lead to actual instances of child
abuse, the causal link is contingent and indirect.
The harm does not necessarily follow from the
speech, but depends upon some unquantified
potential for subsequent criminal acts.
29. The Government says these indirect harms are
sufficient because, as Ferber acknowledged, child
pornography rarely can be valuable speech. ('The
value of permitting live performances and
photographic reproductions of children engaged
in lewd sexual conduct is exceedingly modest, if
not de minimis'). This argument, however, suffers
 from two flaws. First, Ferber's judgment about
child pornography was based upon how it was
made, not on what it communicated. The case
reaffirmed that where the speech is neither
obscene nor the product of sexual abuse, it does
not fall outside the protection of the First
Amendment. ('[T]he distribution of descriptions or
other depictions of sexual conduct, not otherwise
obscene, which do not involve live performance or
photographic or other visual reproduction of live
performances, retains First Amendment
protection').
30. The second flaw in the Government's position is
that Ferber did not hold that child pornography is
by definition without value. On the contrary, the
Court recognized some works in this category
might have significant value, see id., at 761, but
relied on virtual images--the very images
prohibited by the CPPA-- as an alternative and
permissible means of expression: '[I]f it were
necessary for literary or artistic value, a person
over the statutory age who perhaps looked
younger could be utilized. Simulation outside of
the prohibition of the statute could provide
another alternative.' Id., at 763. Ferber, then, not
only referred to the distinction between actual and
virtual child pornography, it relied on it as a
reason supporting its holding. Ferber provides no
support for a statute that eliminates the distinction
and makes the alternative mode criminal as well.
31.III
32. … The Government seeks to justify its
prohibitions in other ways. It argues that the
CPPA is necessary because pedophiles may use
 virtual child pornography to seduce children.
There are many things innocent in themselves,
however, such as cartoons, video games, and
candy, that might be used for immoral purposes,
yet we would not expect those to be prohibited
because they can be misused. The Government,
of course, may punish adults who provide
unsuitable materials to children, and it may
enforce criminal penalties for unlawful solicitation.
The precedents establish, however, that speech
within the rights of adults to hear may not be
silenced completely in an attempt to shield
children from it. In Butler v. Michigan, 352 U. S.
380, 381 (1957), the Court invalidated a statute
prohibiting distribution of an indecent publication
because of its tendency to 'incite minors to violent
or depraved or immoral acts.' A unanimous Court
agreed upon the important First Amendment
principle that the State could not 'reduce the adult
population ... to reading only what is fit for
children.' We have reaffirmed this holding. …
33.Here, the Government wants to keep speech
from children not to protect them from its content
but to protect them from those who would commit
other crimes. The principle, however, remains the
same: The Government cannot ban speech fit for
adults simply because it may fall into the hands of
children. The evil in question depends upon the
actor's unlawful conduct, conduct defined as
criminal quite apart from any link to the speech in
question. This establishes that the speech ban is
not narrowly drawn. The objective is to prohibit
illegal conduct, but this restriction goes well
 beyond that interest by restricting the speech
available to law-abiding adults.
34. The Government submits further that virtual child
pornography whets the appetites of pedophiles
and encourages them to engage in illegal
conduct. This rationale cannot sustain the
provision in question. The mere tendency of
speech to encourage unlawful acts is not a
sufficient reason for banning it. The government
'cannot constitutionally premise legislation on the
desirability of controlling a person's private
thoughts.' First Amendment freedoms are most in
danger when the government seeks to control
thought or to justify its laws for that impermissible
end. The right to think is the beginning of
freedom, and speech must be protected from the
government because speech is the beginning of
thought.
35. … The Government next argues that its objective
of eliminating the market for pornography
produced using real children necessitates a
prohibition on virtual images as well. Virtual
images, the Government contends, are
indistinguishable from real ones; they are part of
the same market and are often exchanged. In this
way, it is said, virtual images promote the
trafficking in works produced through the
exploitation of real children. The hypothesis is
somewhat implausible. If virtual images were
identical to illegal child pornography, the illegal
images would be driven from the market by the
indistinguishable substitutes. Few pornographers
would risk prosecution by abusing real children if
fictional, computerized images would suffice.
 36.
DISSENTING OPINION
37.JUSTICE O'CONNOR, with whom THE CHIEF
JUSTICE and JUSTICE SCALIA join as to Part II,
concurring in the judgment in part and dissenting
in part.
38.
Although in my view the CPPA's ban on youthful-
adult pornography appears to violate the First
Amendment, the ban on virtual-child pornography
does not. It is true that both bans are authorized
by the same text: The statute's definition of child
pornography to include depictions that 'appea[r] to
be' of children in sexually explicit poses. 18 U. S.
C. §2256(8)(B). Invalidating a statute due to
overbreadth, however, is an extreme remedy, one
that should be employed 'sparingly and only as a
last resort.' We have observed that '[i]t is not the
usual judicial practice, . . . nor do we consider it
generally desirable, to proceed to an overbreadth
issue unnecessarily.'
39. …Although 18 U. S. C. §2256(8)(B) does not
distinguish between youthful-adult and virtual-
child pornography, the CPPA elsewhere draws a
line between these two classes of speech. The
statute provides an affirmative defense for those
who produce, distribute, or receive pornographic
images of individuals who are actually adults, but
not for those with pornographic images that are
wholly computer generated. This is not surprising
given that the legislative findings enacted by
Congress contain no mention of youthful-adult
pornography. Those findings focus explicitly only
on actual-child pornography and virtual- child
 pornography. ('[T]he danger to children who are
seduced and molested with the aid of child sex
pictures is just as great when the child
pornographer or child molester uses visual
depictions of child sexual activity produced wholly
or in part by electronic, mechanical, or other
means, including by computer, as when the
material consists of unretouched photographic
images of actual children engaging in sexually
explicit conduct'). Drawing a line around, and
striking just, the CPPA's ban on youthful-child
pornography not only is consistent with Congress'
understanding of the categories of speech
encompassed by §2256(8)(B), but also preserves
the CPPA's prohibition of the material that
Congress found most dangerous to children.
40. In sum, I would strike down the CPPA's ban on
material that 'conveys the impression' that it
contains actual-child pornography, but uphold the
ban on pornographic depictions that 'appea[r] to
be' of minors so long as it is not applied to
youthful-adult pornography.
41. To read more about the case and the history of
child pornography law, see
http://www.pbs.org/wgbh/pages/frontline/shows/p
orn/prosecuting/supreme.html#2

Violent Repercussions of Pornography

The consumption of pornography can be directly
linked to violence against women. Here are excerpts
from the Report of the Attorney General's
Commission on Pornography:
Report of the Attorney General's Commission on
Pornography:
Section 5.2.1 Sexually Violent Material
…[C]linical and experimental research … [has]
focused particularly on sexually violent material,
[and] the conclusions have been virtually unanimous.
In both clinical and experimental settings, exposure
to sexually violent materials has indicated an
increase in the likelihood of aggression. More
specifically, the research, … shows a causal
relationship between exposure to material of this
type and aggressive behavior towards women.
…The assumption that increased aggressive
behavior towards women is causally related, for an
aggregate population, to increased sexual violence is
significantly supported by the clinical evidence, as
well as by much of the less scientific evidence. This
is not to say that all people with heightened levels of
aggression will commit acts of sexual violence. But it
is to say that over a sufficiently large number of
cases we are confident in asserting that an increase
in aggressive behavior directed at women will cause
an increase in the level of sexual violence directed at
women.
Since the clinical and experimental evidence
supports the conclusion that there is a causal
relationship between exposure to sexually violent
materials and an increase in aggressive behavior
directed towards women, and since we believe that
an increase in aggressive behavior towards women
will in a population increase the incidence of sexual
violence in that population, we have reached the
conclusion unanimously and confidently, that the
available evidence strongly supports the hypothesis
that substantial exposure to sexually violent materials
as described here bears a causal relationship to
antisocial acts of sexual violence and, for some
subgroups, possibly to unlawful acts of sexual
violence.
Sexual violence is not the only negative effect
reported in the research to result from substantial
exposure to sexually violent materials. The evidence
is also strongly supportive of significant attitudinal
changes on the part of those with substantial
exposure to violent pornography. These attitudinal
changes are numerous. Victims of rape and other
forms of sexual violence are likely to be perceived by
people so exposed as more responsible for the
assault, as having suffered less injury, and as having
been less degraded as a result of the experience.
Similarly, people with a substantial exposure to
violent pornography are likely to see the rapist or
other sexual offender as less responsible for the act
and as deserving of less stringent punishment.
…The evidence also strongly supports the
conclusion that substantial exposure to violent
sexually explicit material leads to a greater
acceptance of the "rape myth," in its broader sense -
that women enjoy being coerced into sexual activity,
that they enjoy being physically hurt in sexual
context, and that as a result a man who forces
himself on a woman sexually is in fact merely
acceding to the "real" wishes of the woman,
regardless of the extent to which she seems to be
resisting…
For more on pornography's violent repercussions,
continue on to read about Diana Russell's work.
The following excerpt from Diana Russell's book
Against Pornography: The Evidence of Harm
(Berkeley, California: Russell Publications, 1994)
explores links between the consumption of
pornography and violence against women. For more
on Diana Russell's work, see her website:
www.dianarussell.com

I. THE ROLE OF PORNOGRAPHY IN

PREDISPOSING SOME MALES TO WANT TO
RAPE

(1) Pairing sexually arousing/gratifying stimuli

with rape

…A simple application of the laws of social learning

suggests that viewers of pornography can develop
arousal responses to depictions of rape, murder,
child sexual abuse, or other assaultive behavior.
Researcher S. Rachman of the Institute of
Psychiatry, Maudsley Hospital, London, has
demonstrated that male subjects can learn to
become sexually aroused by seeing a picture of a
woman's boot after repeatedly seeing women's boots
in association with sexually arousing slides of nude
females (Rachman and Hodgson, 1968). The laws of
learning that operated in the acquisition of the boot
fetish can also teach males who were not previously
aroused by depictions of rape to become so. All it
may take is the repeated association of rape with
arousing portrayals of female nudity (or clothed
females in provocative poses). …

(2) Increasing males' self-generated rape

fantasies

Further evidence that exposure to pornography can

create in males a predisposition to rape where none
existed before is provided by an experiment
conducted by Malamuth. Malamuth classified 29
male students as sexually force-oriented or non-
force-oriented on the basis of their responses to a
questionnaire (1981a). These students were then
randomly assigned to view either a rape version or a
mutually consenting version of a slide-audio
presentation. The account of rape and accompanying
pictures were based on a story in a popular
pornographic magazine, which Malamuth describes
as follows:

The man in this story finds an attractive woman on a

deserted road. When he approaches her, she faints
with fear. In the rape version, the man ties her up
and forcibly undresses her. The accompanying
narrative is as follows: "You take her into the car.
Though this experience is new to you, there is a
temptation too powerful to resist. When she
awakens, you tell her she had better do exactly as
you say or she'll be sorry. With terrified eyes she
agrees. She is undressed and she is willing to
succumb to whatever you want. You kiss her and she
returns the kiss." Portrayal of the man and woman in
sexual acts follows; intercourse is implied rather than
explicit (1981a, p. 38).

In the mutually consenting version of the story the

victim was not tied up or threatened. Instead, on her
awakening in the car, the man told her that "she is
safe and that no one will do her any harm. She
seems to like you and you begin to kiss." The rest of
the story is identical to the rape version (Malamuth,
1981a, p. 38).
All subjects were then exposed to the same audio
description of a rape read by a female. This rape
involved threats with a knife, beatings, and physical
restraint. The victim was portrayed as pleading,
crying, screaming, and fighting against the rapist
(Abel, Barlow, Blanchard, and Guild, 1977, p. 898).
Malamuth reports that measures of penile
tumescence as well as self-reported arousal
"indicated that relatively high levels of sexual arousal
were generated by all the experimental stimuli"
(1981a, p. 33).

After the 29 male students had been exposed to the

rape audio tape, they were asked to try to reach as
high a level of sexual arousal as possible by
fantasizing about whatever they wanted but without
any direct stimulation of the penis (1981a, p. 40).
Self-reported sexual arousal during the fantasy
period indicated that those students who had been
exposed to the rape version of the first slide-audio
presentation, created more violent sexual fantasies
than those exposed to the mutually consenting
version irrespective of whether they had been
classified as force-oriented or non-force-oriented
(1981a, p. 33).

As the rape version of the slide-audio presentation is

typical of what is seen in pornography, the results of
this experiment suggests that similar pornographic
depictions are likely to generate rape fantasies even
in previously non-force-oriented consumers. As Edna
Einsiedel points out (1986, p. 60):

Current evidence suggests a high correlation

between deviant fantasies and deviant
behaviors....Some treatment methods are also
predicated on the link between fantasies and
behavior by attempting to alter fantasy patterns in
order to change the deviant behaviors (1986, p. 60).

Because so many people resist the idea that a desire

to rape may develop as a result of viewing
pornography, let us focus for a moment on behavior
other than rape. There is abundant testimonial
evidence that at least some males decide they would
like to perform certain sex acts on women after
seeing pornography portraying such sex acts. For
example, one of the men who answered Shere Hite's
question on pornography wrote: "It's great for me. It
gives me new ideas to try and see, and it's always
sexually exciting" (1981, p. 780; emphasis added).
Of course, there's nothing wrong with getting new
ideas from pornography or anywhere else, nor with
trying them out, as long as they are not actions that
subordinate or violate others. Unfortunately, many of
the behaviors modeled in pornography do
subordinate and violate women, sometimes
viciously.

… Psychologist Jennings Bryant testified to the

Pornography Commission about a survey he had
conducted involving 600 telephone interviews with
males and females who were evenly divided into
three age groups: students in junior high school,
students in high school, and adults aged 19 to 39
years (1985, p. 133). Respondents were asked if
"exposure to X-rated materials had made them want
to try anything they saw" (1985, p. 140). Two-thirds
of the males reported "wanting to try some of the
behavior depicted" (1985, p. 140). Bryant reports that
the desire to imitate what is seen in pornography
"progressively increases as age of respondents
decreases" (1985, p. 140; emphasis added). Among
the junior high school students, 72% of the males
reported that "they wanted to try some sexual
experiment or sexual behavior that they had seen in
their initial exposure to X-rated material" (1985, p.
140).

In trying to ascertain if imitation had occurred, the

respondents were asked: "Did you actually
experiment with or try any of the behaviors depicted
[within a few days of seeing the materials]?" (1985,
p. 140). A quarter of the males answered that they
had. A number of adult men answered, "no," but said
that some years later they had experimented with the
behaviors portrayed. However, only imitations within
a few days of seeing the materials were counted
(1985, p. 140). Male high school students were the
most likely (31%) to report experimenting with the
behaviors portrayed (1985, p. 141).

Unfortunately, no information is available on the

behaviors imitated by these males. Imitating
pornography is cause for concern only when the
behavior imitated is violent or abusive, or when the
behavior is not wanted by one or more of the
participants. Despite the unavailability of this
information, Bryant's study is valuable in showing
how common it is for males to want to imitate what
they see in pornography, and for revealing that many
do imitate it within a few days of viewing it.
Furthermore, given the degrading and often violent
content of pornography, as well as the youthfulness
and presumable susceptibility of many of the
viewers, how likely is it that these males only imitated
or wished to imitate the non-sexist, non-degrading,
and non-violent sexual behavior?

Almost all the research on pornography to date has

been conducted on men and women who were at
least 18 years old. But as Malamuth points out, there
is "a research basis for expecting that children would
be more susceptible to the influences of mass
media, including violent pornography if they are
exposed to it" than adults (1985, p. 107). Bryant's
telephone interviews show that very large numbers
of children now have access to both hard-core and
soft-core materials. For example:

•The average age at which male respondents saw

their first issue of Playboy or a similar magazine was
11 years (1985, p. 135).
•All of the high school age males surveyed reported
having read or looked at Playboy, Playgirl, or some
other soft-core magazine (1985, p. 134).
•High school males reported having seen an average
of 16.1 issues, and junior high school males said
they had seen an average of 2.5 issues.
•In spite of being legally under age, junior high
students reported having seen an average of 16.3
"unedited sexy R-rated films" (1985, p. 135).
(Although R-rated movies are not usually considered
pornographic, many of them meet my definition of
pornography.)
•The average age of first exposure to sexually
oriented R-rated films for all respondents was 12.5
years (1985, p. 135).

•Nearly 70% of the junior high students surveyed

reported that they had seen their first R-rated film
before they were 13 (1985, p. 135).
•The vast majority of all the respondents reported
exposure to hard-core, X-rated, sexually explicit
material (1985, p. 135). Furthermore, "a larger
proportion of high school students had seen X-rated
films than any other age group, including adults":
84%, with the average age of first exposure being 16
years, 11 months (1985, p. 136).
In a more recent anonymous survey of 247 Canadian
junior high school students whose average age was
14 years, James Check and Kristin Maxwell (1992)
report that 87% of the boys and 61% of the girls said
they had viewed video-pornography. The average
age at first exposure was just under 12 years.
33% of the boys versus only 2% of the girls reported
watching pornography once a month or more often.
As well, 29% of the boys versus 1% of the girls
reported that pornography was the source that
had provided them with the most useful
information about sex (i.e., more than parents,
school, friends, etc.). Finally, boys who were
frequent consumers of pornography and/or
reported learning a lot from pornography were
also more likely to say that is was "OK" to hold a
girl down and force her to have intercourse
(abstract).

Clearly, more research is needed on the effects of

pornography on young male viewers, particularly in
view of the fact that recent studies suggest that
"over 50% of various categories of paraphiliacs
[sex offenders] had developed their deviant
arousal patterns prior to age 18" (Einsiedel, 1986,
p. 53). Einsiedel goes on to say that "it is clear that
the age-of-first-exposure variable and the nature of
that exposure needs to be examined more carefully.
There is also evidence that the longer the duration of
the paraphilia, the more significant the association
with use of pornography" (Abel, Mittleman, and
Becker, 1985). …

The following excerpt from Diana Russell's book

Against Pornography: The Evidence of Harm
(Berkeley, California: Russell Publications, 1994)
explores links between the consumption of
pornography and violence against women. For more
on Diana Russell's work, see her website:
www.dianarussell.com
II. THE ROLE OF PORNOGRAPHY IN
UNDERMINING SOME MALES' INTERNAL
INHIBITIONS AGAINST ACTING OUT THE DESIRE
TO RAPE

(1) Objectifying women. The first way in which

pornography undermines some males' internal
inhibitions against acting out their desires to rape is
by objectifying women. Feminists have been
emphasizing the role of objectification in the
occurrence of rape for years (e.g., Medea and
Thompson, 1974; Russell, 1975). Objectification
makes it easier to rape them. "It was difficult for me
to admit that I was dealing with a human being when
I was talking to a woman," one rapist reported,
"because, if you read men's magazines, you hear
about your stereo, your car, your chick" (Russell,
1975, pp. 249-250). After this rapist had hit his victim
several times in her face, she stopped resisting and
begged, "All right, just don't hurt me." "When she
said that," he reported, "all of a sudden it came into
my head, 'My God, this is a human being!' I came to
my senses and saw that I was hurting this person."
Another rapist said of his victim, "I wanted this
beautiful fine thing and I got it" (Russell, 1975, p.
245).

Dehumanizing oppressed groups or enemy nations

in times of war is an important mechanism for
facilitating brutal behavior toward members of those
groups. … However, the dehumanization of women
that occurs in pornography is often not recognized
because of its sexual guise and its pervasiveness. It
is important to note that the objectification of women
is as common in non-violent pornography as it is in
violent pornography.

Doug McKenzie-Mohr and Mark Zanna conducted an

experiment to test whether certain types of males
would be more likely to sexually objectify a woman
after viewing 15 minutes of non-violent pornography.
They selected 60 male students who they classified
into one of two categories: masculine sex-typed or
gender schematic--individuals who "encode all cross-
sex interactions in sexual terms and all members of
the opposite sex in terms of sexual attractiveness"
(Bem, 1981, p. 361); and androgynous or gender
aschematic--males who do not encode cross-sex
interactions and women in these ways (McKenzie-
Mohr and Zanna, 1990, p. 297, 299).

McKenzie-Mohr and Zanna found that after exposure

to non-violent pornography, the masculine sex-typed
males "treated our female experimenter who was
interacting with them in a professional setting, in a
manner that was both cognitively and behaviorally
sexist" (1990, p. 305). In comparison with the
androgynous males, for example, the masculine sex-
typed males positioned themselves closer to the
female experimenter and had "greater recall for
information about her physical appearance" and less
about the survey she was conducting (1990, p. 305).
The experimenter also rated these males as more
sexually motivated based on her answers to
questions such as, "How much did you feel he was
looking at your body?" "How sexually motivated did
you find the subject?" (1990, p. 301).

This experiment confirmed McKenzie-Mohr and

Zanna's hypothesis that exposure to non-violent
pornography causes masculine sex-typed males, in
contrast to androgynous males, to view and treat a
woman as a sex object.

(2) Rape Myths. If males believe that women enjoy

rape and find it sexually exciting, this belief is likely
to undermine the inhibitions of some of those who
would like to rape women. Sociologists Diana Scully
and Martha Burt have reported that rapists are
particularly apt to believe rape myths (Burt, 1980;
Scully, 1985). Scully, for example, found that 65% of
the rapists in her study believed that "women cause
their own rape by the way they act and the clothes
they wear"; and 69% agreed that "most men accused
or rape are really innocent." However, as Scully
points out, it is not possible to know if their beliefs
preceded their behavior or constitute an attempt to
rationalize it. Hence, findings from the experimental
data are more telling for our purposes than these
interviews with rapists.

As the myth that women enjoy rape is widely held,

the argument that consumers of pornography realize
that such portrayals are false, is totally unconvincing
(Brownmiller, 1975; Burt, 1980; Russell, 1975).
Indeed, several studies have shown that portrayals
of women enjoying rape and other kinds of sexual
violence can lead to increased acceptance of rape
myths in both males and females. In an experiment
conducted by Neil Malamuth and James Check, for
example, one group of college students saw a
pornographic depiction in which a woman was
portrayed as sexually aroused by sexual violence,
and a second group was exposed to control
materials. Subsequently, all subjects were shown a
second rape portrayal. The students who had been
exposed to the pornographic depiction of rape were
significantly more likely than the students in the
control group (1) to perceive the second rape victim
as suffering less trauma; (2) to believe that she
actually enjoyed it; and (3) to believe that women in
general enjoy rape and forced sexual acts (Check
and Malamuth, 1985, p. 419).

Other examples of the rape myths that male subjects

in these studies are more apt to believe after viewing
pornography are as follows: "A woman who goes to
the home or the apartment of a man on their first
date implies that she is willing to have sex"; "Any
healthy woman can successfully resist a rapist if she
really wants to"; "Many women have an unconscious
wish to be raped, and many then unconsciously set
up a situation in which they are likely to be attacked";
"If a girl engages in necking or petting and she lets
things get out of hand, it is her own fault if her partner
forces sex on her" (Briere, Malamuth, and Check,
1985, p. 400).

In Maxwell and Check's 1992 study of 247 high

school students described above, they found very
high rates of what they called "rape supportive
beliefs", that is, acceptance of rape myths and
violence against women. The boys who were the
most frequent consumers of pornography and/or who
reported learning a lot from it, were more accepting
of rape supportive beliefs than their peers who were
less frequent consumers and/or who said they had
not learned as much from it.

A full 25% of girls and 57% of boys indicated belief

that in one or more situations, it was at least "maybe
okay" for a boy to hold a girl down and force her to
have intercourse. Further, only 21% of the boys and
57% of the girls believed that forced intercourse was
"definitely not okay" in any of the situations. The
situation in which forced intercourse was most
accepted, was that in which the girl had sexually
excited her date. In this case 43% of the boys and
16% of the girls stated that if was at least "maybe
okay" for the boy to force intercourse (1992,
abstract).

According to Donnerstein, "After only 10 minutes of

exposure to aggressive pornography, particularly
material in which women are shown being aggressed
against, you find male subjects are much more
willing to accept these particular myths" (1983, p. 6).
These males are also more inclined to believe that
25% of the women they know would enjoy being
raped (1983, p. 6).

(3) Acceptance of interpersonal violence. Males'

internal inhibitions against acting out their desire to
rape can also be undermined if they consider male
violence against women to be acceptable behavior.
Studies have shown that viewing portrayals of sexual
violence as having positive consequences increases
male subjects' acceptance of violence against
women. Examples of some of the attitudes used to
measure acceptance of interpersonal violence
include "Being roughed up is sexually stimulating to
many women"; "Sometimes the only way a man can
get a cold woman turned on is to use force"; "Many
times a woman will pretend she doesn't want to have
intercourse because she doesn't want to seem loose,
but she's really hoping the man will force her" (Briere,
Malamuth, and Check, 1985, p. 401).

Malamuth and Check (1981) conducted an

experiment of particular interest because the movies
shown were part of the regular campus film program.
Students were randomly assigned to view either a
feature-length film that portrayed violence against
women as being justifiable and having positive
consequences ("Swept Away", "The Getaway") or a
film without sexual violence. The experiment showed
that exposure to the sexually violent movies
increased the male subjects' acceptance of
interpersonal violence against women. (This outcome
did not occur with the female subjects.) These
effects were measured several days after the films
had been seen. …

(4) Trivializing rape. According to Donnerstein, in

most studies on the effects of pornography, "subjects
have been exposed to only a few minutes of
pornographic material" (1985, p. 341). In contrast,
Zillman and Bryant examined the impact on male
subjects of what they refer to as "massive exposure"
to non-violent pornography (4 hours and 48 minutes
per week over a period of six weeks; for further
details about the experimental design, see page 27).
After three weeks the subjects were told that they
were participating in an American Bar Association
study that required them to evaluate a trial in which a
man was prosecuted for the rape of a female
hitchhiker. At the end of this mock trial various
measures were taken of the subjects' opinions about
the trial and about rape in general. For example, they
were asked to recommend the prison term they
thought most fair.

Zillmann and Bryant found that the male subjects

who were exposed to the massive amounts of
pornography considered rape a less serious crime
than they did before they were exposed to it; they
thought that prison sentences for rape should be
shorter; and they perceived sexual aggression and
abuse as causing less suffering for the victims, even
in the case of an adult male having sexual
intercourse with a 12-year-old girl (1984, p. 132).
They concluded that "heavy exposure to
common non-violent pornography trivialized
rape as a criminal offense" (1984, p. 117).

(5) Callous attitudes toward female sexuality. In

the same experiment on massive exposure, Zillmann
and Bryant also reported that, "males' sexual
callousness toward women was significantly
enhanced" (1984, p. 117). Male subjects, for
example, became increasingly accepting of
statements such as "A woman doesn't mean 'no' until
she slaps you"; "A man should find them, fool them,
fuck them, and forget them"; and "If they are old
enough to bleed, they are old enough to butcher."
However, judging by these items, it is difficult to
distinguish sexual callousness from a general
hostility to women.

(6) Acceptance of male dominance in intimate

relationships. A marked increase in males'
acceptance of male dominance in intimate
relationships was yet another result of this massive
exposure to pornography (Zillmann and Bryant,
1984, p. 121). The notion that women are, or
ought to be, equal in intimate relationships was
more likely to be abandoned by these male
subjects (1984, p. 122). Finally, their support of the
women's liberation movement also declined sharply
(1984, p. 134).

These findings demonstrate that pornography

increases the acceptability of sexism. As Van
White points out, "by using pornography, by looking
at other human beings as a lower form of life, they
[the pornographers] are perpetuating the same kind
of hatred that brings racism to society" (1984).

The greater trivializing of rape by males, the increase

in their callous attitudes toward female sexuality, and
their greater acceptance of male domination, are all
likely to contribute to undermining some males'
inhibitions against acting out their desires to rape. …

(7) Desensitizing males to rape. In an experiment

specifically designed to study desensitization, Linz,
Donnerstein, and Penrod showed ten hours of R-
rated or X-rated movies over a period of five days to
male subjects (Donnerstein and Linz, 1985, p. 34A).
Some students saw X-rated movies depicting sexual
assault; others saw X-rated movies depicting only
consenting sex; and a third group saw R-rated
sexually violent movies--for example, "I Spit on Your
Grave," "Toolbox Murders," and "Texas Chainsaw
Massacre." Donnerstein (1983) describes "Toolbox
Murders" as follows: There is an erotic bathtub scene
in which a woman massages herself. A beautiful
song is played. Then a psychotic killer enters with a
nail gun. The music stops. He chases the woman
around the room, then shoots her through the
stomach with the nail gun. She falls across a chair.
The song comes back on as he puts the nail gun to
her forehead and blows her brains out. According to
Donnerstein, many young males become sexually
aroused by this movie (1983, p. 10).

Donnerstein and Linz point out that, "It has always

been suggested by critics of media violence research
that only those who are already predisposed toward
violence are influenced by exposure to media
violence" (1985, p. 34F). These experimenters,
however, actually preselected their subjects to
ensure that they were not psychotic, hostile, or
anxious.

Donnerstein and Linz described the impact of the R-

rated movies on their subjects as follows:

Initially, after the first day of viewing, the men rated

themselves as significantly above the norm for
depression, anxiety, and annoyance on a mood
adjective checklist. After each subsequent day of
 viewing, these scores dropped until, on the fourth
day of viewing, the males' levels of anxiety,
depression, and annoyance were indistinguishable
from baseline norms (1985, p. 34F).

By the fifth day, the subjects rated the movies as

less graphic and less gory and estimated fewer
violent or offensive scenes than after the first day of
viewing. They also rated the films as significantly
less debasing and degrading to women, more
humorous, and more enjoyable, and reported a
greater willingness to see this type of film again
(1985, p. 34F). However, their sexual arousal by this
material did not decrease over this five-day period
(Donnerstein, 1983, p. 10).

On the last day, the subjects went to a law school

where they saw a documentary re-enactment of a
real rape trial. A control group of subjects who had
never seen the films also participated in this part of
the experiment. Subjects who had seen the R-rated
movies: (1) rated the victim as significantly more
worthless, (2) rated her injury as significantly less
severe, and (3) assigned greater blame to her for
being raped than did the subjects who had not seen
the film. In contrast, these effects were not observed
for the X-rated non-violent films. However, the results
were much the same for the violent X-rated films,
despite the fact that the R-rated material was "much
more graphically violent" (Donnerstein, 1985, pp. 12-
13).

… Several other studies have assessed the

correlation between the degree of males' exposure to
pornography and attitudes supportive of violence
against women. Malamuth reports that in three out of
four studies, "higher levels of reported exposure to
sexually explicit media correlated with higher levels
of attitudes supportive of violence against women"
(1986, p. 8).

(1) Malamuth and Check (1985) conducted a study

in which they found a positive correlation between
the amount of sexually explicit magazines a sample
of college males read and their beliefs that women
enjoy forced sex.
(2) Similarly, Check (1985) found that the more often
a diverse sample of Canadian males were exposed
to pornography, the higher their acceptance of rape
myths, violence against women, and general sexual
callousness was.
(3) Briere, Corne, Runtz and Malamuth (1984) found
similar correlations in another sample of college
males.

In her study of male sexuality, Shere Hite found that

67% of the males who admitted that they had wanted
to rape a woman reported reading pornographic
magazines, compared to only 19% of those who said
that they had never wanted to rape a woman (1981,
p. 1123). With regard to the frequency of exposure to
pornography, Hite reported that only 11% of the
7,000 males she surveyed said that they had never
looked at pornography; 36% said they viewed it
regularly, 21% said they did so sometimes, 26% said
they did so infrequently, and 6% said that they had
looked at it in the past (1981, p. 1123). While
correlation does not prove causation, and it therefore
cannot be concluded from these studies that it was
the consumption of the pornography that was
responsible for the males' higher acceptance of
violence against women, their findings are consistent
with a theory that a causal connection exists.
Constitutional Language
MacKinnon's essay and Russell's research explicitly
detail pornography's harm and its relationship to
violence against women. While the courts have
recognized the harm pornography causes to children
(with the virtual child pornography case as an
exception), the legal system and our cultural
structures more generally have not expanded that
notion of harm to analyze the repercussions of the
existence of pornography on women's lived
experiences. Furthermore, discussions about
pornography's harm have often been silenced by
discussions about free speech and The First
Amendment. Proponents of this perspective assert
that eradicating pornography is akin to censorship.
But, the prototypical pornographic item shares more
of the characteristics of sexual activity than of the
characteristics of the communicative, emotive, or
artistic processes. Pornography is a sexual
surrogate. Pornography as action rather than speech
is an important distinction to make when considering
whether regulation of pornographic materials is
allowed by the First Amendment. Consider Frederick
Schauer's perspective on this definitional and
empirical issue that undergirds much of the
pornography debate:
Speech and "Speech" - Obscenity and "Obscenity":
An Exercise in the Interpretation of Constitutional
 Language, by Frederick Schauer; 67 Geo.L.J. 899
922-923 (1979)
[Pornography] takes pictorial or linguistic form only
because some individuals achieve sexual
gratification by those means.
Imagine a person going to a house of prostitution,
and, in accord with his or her particular sexual
preferences, requesting that two prostitutes engage
in sexual activity with each other while he becomes
aroused. Having achieved sexual satisfaction in this
manner, he pays his money and leaves, never
having touched either of the prostitutes. Imagine an
individual who asks that a leather-clad prostitute
crack a whip within an inch of his ear. Are these free
speech cases? Hardly. Despite the fact that eyes
and ears are used, these incidents are no more
cognitive than any other experience with a prostitute.
It is essentially a physical activity, the lack of actual
contact notwithstanding.
If the above examples are not free speech cases, is
there any real difference between the same activity
when presented on film rather than in the flesh?
Consider further rubber, plastic, or leather sex aids. It
is hard to find any free speech aspects in their sale
or use. If pornography is viewed merely as a type of
aid to sexual satisfaction, any distinction between
pornography and so-called "rubber products" is
meaningless. The mere fact that in pornography the
stimulating experience is initiated by visual rather
than tactile means is irrelevant if every other aspect
of the experience is the same. Neither means
constitutes communication in the cognitive sense.
Pornography involves neither a communicator nor an
object of the communication. The purveyor of the
pornography is in the business solely of providing
sexual pleasure; it is unrealistic to presume that he is
anything but indifferent to the method by which
pleasure is provided and profit secured. Similarly,
there is no reason to believe that the recipient
desires anything other than sexual stimulation.
Hardcore pornography, then, is distinguished by its
similarity in all relevant respects to a wide range of
other sexual experiences.
Case Study: The Jake Baker Case and Violence
Against Women on the Internet

The last case study, the Jake Baker case shows the
intersections of pornography, the Internet, violence,
and limited notions of harm in the arena of violence
against women. This case illustrates many of the
issues we have already seen: the shortcomings of
the law, the accessibility of Internet pornography, and
the debate surrounding free speech and the right to
bodily autonomy and safety. Please read the
excerpts from the district court opinion and appellate
court majority and dissent provided below. Please
note that the dissent to the appellate court
opinion contains very explicit sexual and violent
material.
United States of America, Plaintiff,
v.
Jake BAKER and Arthur Gonda, Defendants.
United States District Court, E.D. Michigan, Southern
Division
June 21, 1995.
COHN, District Judge.
"It is not the policy of the law to punish those
unsuccessful threats which it is not presumed would
terrify ordinary persons excessively; and there is so
much opportunity for magnifying or misunderstanding
undefined menaces that probably as much mischief
would be caused by letting them be prosecuted as by
refraining from it." The People v. B.F. Jones, 62
Mich. 304, 28 N.W. 839 (1886)

I. Introduction
… Defendant Jake Baker (Baker) is charged in a
superseding indictment with five counts of
transmitting threats to injure or kidnap another, in
electronic mail (e-mail) messages transmitted via the
Internet. Now before the Court is Baker's motion to
quash the superseding indictment. For the reasons
that follow, the motion will be granted.

II. Background
The e-mail messages that form the basis of the
charges in this case were exchanged in December,
1994 between Baker in Ann Arbor, Michigan, and
defendant Arthur Gonda (Gonda), who sent and
received e-mail through a computer in Ontario,
Canada. … They all express a sexual interest in
violence against women and girls.

The complaint was based on an FBI agent's affidavit

which cited language taken from a story Baker
posted to an Internet newsgroup entitled
"alt.sex.stories," and from e-mail messages he sent
to Gonda. The story graphically described the torture,
rape, and murder of a woman who was given the
name of a classmate of Baker's at the University of
Michigan. The "alt.sex.stories" newsgroup to which
Baker's story was posted is an electronic bulletin
board, the contents of which are publicly available via
the Internet. Much of the attention this case garnered
centered on Baker's use of a real student's name in
the story. …

IV. The Communications

A.
Count I charges Baker and Gonda with transmitting a
threat to injure, and quotes from three e-mail
messages. In the first message quoted, dated
December 1, 1994, Baker responds to a message he
had received from Gonda:

I highly agree with the type of woman you like to

hurt. You seem to have the same tastes I have.
When you come down, this'll be fun! Also, I've
been thinking. I want to do it to a really young girl
first. !3 or 14. [FN20] There innocence makes
them so much more fun--and they'll be easier to
control. What do you think? I haven't read your
entire mail yet. I've saved it to read later, in
private. I'll try to write another short phantasy
and send it. If not tomorrow, maybe by Monday.
No promises.

FN20. The typographic, spelling, and grammatical

errors in this and the following quotations are
reproduced from the originals.
On December 2, Gonda responded:
I would love to do a 13 or 14 year old. I think you
are right ... not only their innocence but their
young bodies would really be fun to hurt. As far
as being easier to control ... you may be right,
however you can control any bitch with rope and
a gag ... once tey are tieed up and struggling we
could do anything we want to them ... to any girl.
The trick is to be very careful in planning. I will
keep my eye out for young girls, and relish the
fantasy ... BTW [FN21] how about your neighbour
at home, youm may get a chance to see
her ...? ...?
FN21. "BTW" is shorthand for "by the way."
The same day, Baker responded:
True. But young girls still turn me on more. Likely
to be nice and tight. Oh. they'd scream nicely
too! Yeah. I didn't see her last time I was home.
She might have moved. But she'd be a great
catch. She's real pretty. with nice long legs. and a
great girly face ... I'd love to make her cry ...
The bill of particulars identifies the targets of these
statements as: 13 or 14-year old girls who reside in
Defendant Jake Baker's neighborhood in Ann Arbor,
Michigan, and teenage girls who reside in Defendant
Jake Baker's neighborhood in Boardman, Ohio.
This Count falls short of the constitutional "true
threat" requirement. As an initial matter, it does not
refer to a sufficiently specific class of targets. The
more limited class identified in the bill of particulars is
not apparent from the face of the communications.
Nothing in the exchange quoted in Count I implicitly
or explicitly refers to 13 or 14 year old girls in Ann
Arbor, nothing in the exchange identifies Boardman,
Ohio (Baker's actual home) as the "home" referred
to, and nothing in the exchange allows one to
determine that the neighbor discussed is a teen-age
girl. In reality, the only class of people to whom the
messages can be taken to refer is 13 or 14 year old
girls, anywhere. This class is too indeterminate to
satisfy the requirement of specificity as to the person
threatened, even under the liberal interpretation
given the requirement by some courts.
As to the content of the messages, Baker's
discussing his "tastes" in the first paragraph of his
December 1 message does not involve any
identifiable threatened action. In the second
paragraph of the December 1 message, he
expresses a desire "to do it to" a 13 or 14 year old
girl. Even assuming that more context would clarify
the phrase "to do it to," the second paragraph also
fails to mention an intention to do anything. Rather, it
seeks Gonda's reaction to Baker's desire, asking:
"What do you think?" Discussion of desires, alone, is
not tantamount to threatening to act on those
desires. Absent such a threat to act, a statement is
protected by the First Amendment.
As to Baker's message of December 2, the first
paragraph again discusses a predilection toward
"young girls," and what it would be like, presumably,
"to do it to" "young girls." It does not mention any
intention to act in accordance with the expressed
predilection. The second paragraph responds to
Gonda's question about a neighbor "at home." It says
"she'd be a great catch," but expresses no intention
to "catch" her, and indicates a desire to "make her
cry," but, again, expresses no intention to take any
action in accordance with that desire. It is not
constitutionally permissible to infer an intention to act
on a desire from a simple expression of the desire.
The intention (whether or not actually held) must
itself be expressed in the statement. Count I fails to
meet this standard, and must be dismissed.
B.
Counts II and III are based on the same statement
made by Baker in an e-mail message dated
December 9, 1994, and charge Baker with making a
threat to kidnap and a threat to injure, respectively.
The statement for which Baker is charged in the two
counts reads:
I just picked up Bllod Lust and have started to
read it. I'll look for "Final Truth" tomorrow
(payday). One of the things I've started doing is
going back and re-reading earlier messages of
yours. Each time I do. they turn me on more and
more. I can't wait to see you in person. I've been
trying to think of secluded spots. but my
knowledge of Ann Arbor is mostly limited to the
campus. I don't want any blood in my room,
though I have come upon an excellent method to
abduct a bitch-
As I said before, my room is right across from the
girl's bathroom. Wiat until late at night. grab her
when she goes to unlock the dorr. Knock her
unconscious. and put her into one of those
portable lockers (forget the word for it). or even a
duffle bag. Then hurry her out to the car and take
her away ... What do you think?
The bill of particulars identifies the target of the
statement as: "Female college students who lived in
Defendant Jake Baker's dormitory at the University of
Michigan in Ann Arbor, Michigan." Apart from
concerns about equating Baker's online persona with
his real person, the class of would-be targets here is
identified with sufficient specificity.
Presumably, the government offers this statement as
a threat to carry out the "method to abduct" it
describes. A discussion of a method of kidnapping or
injuring a person is not punishable unless the
statement includes an unequivocal and specific
expression of intention immediately to carry out the
actions discussed. Baker's e-mail message cannot
reasonably be read as satisfying this standard. As in
Count I, the language with which Baker is charged
here lacks any expression of an intention to act, and
concludes with a request for Gonda's reaction: "What
do you think?" Discussing the commission of a crime
is not tantamount to declaring an intention to commit
the crime. To find an expression of unequivocal
intention in this language would require the drawing
of an inference not grounded in any specific
language of the statement and would exceed the
bounds of the First Amendment. Counts II and III
must be dismissed.
C.
Count IV charges Baker and Gonda with transmitting
a threat to injure. The Count is based on a message
from Gonda to Baker, and Baker's response. Both e-
mail messages are dated December 10, 1994.
Gonda wrote:
Hi Jake. I have been out tonight and I can tell you
that I am thinking more and more about 'doing' a
girl. I can picture it so well ... and I can think of no
better use for their flesh. I HAVE to make a bitch
suffer!
As far as the Teale-homolka killings, well I can
think of no tastier crimes ... BTW have you seen
any pictures of the girls? You have to see these
cunts! They must have been so much fun ...
please let me know any details that I cannot get
here. I would love to see what you think about
it.... As far as the asian bitch story, there is only
one possible ending....
Baker responded:
Are tastes are so similar. it scares me :-) When I
lay down at night. all I think of before I sleep is
how I'd torture a bitch I get my hands on. I have
some pretty vivid near dreams too. I wish I could
remember them when I get up.
The bill of particulars identifies the target of these
statements as: Women who were the subject of
Defendant Jake Baker's E-mail transmissions and
Internet postings, including--but not limited to--Jane
Doe, whose true name is known to Defendant Jake
Baker and this Honorable Court.
This Count presents the weakest of all the
government's charges against Baker. While the
government identifies the class of targets here as
women Baker discussed on the Internet, there is
nothing in the language quoted here to so limit the
class. In addition, since Baker's e-mail often refers
simply to "a girl," a class composed of women Baker
discussed in his e-mail and stories essentially is a
class composed of any woman or girl about whom
Baker has ever thought. Such a class is obviously
not sufficiently specific.
With regard to the content of Baker's communication,
Baker's statement here consists only of an
expression of his thoughts before sleeping and of
"near dreams" he cannot remember upon waking. To
infer an intention to act upon the thoughts and
dreams from this language would stray far beyond
the bounds of the First Amendment, and would
amount to punishing Baker for his thoughts and
desires. Count IV must be dismissed.
D.
Count V charges Baker and Gonda with transmitting
a threat to injure. It is based on an exchange
between Gonda and Baker on December 11-12,
1994. On December 11, Gonda wrote to Baker:
It's always a pleasure hearing back from you ... I
had a great orgasm today thinking of how you
and I would torture this very very petite and cute
south american girl in one of my classes ... BTW
speaking of torture, I have got this great full
length picture of the Mahaffy girl Paul Bernardo
killed, she is wearing this short skirt!
The same day, Baker responded:
Just thinking about it anymore doesn't do the
trick ... I need TO DO IT.
The next day, Gonda wrote:
My feelings exactly! We have to get together ... I
will give you more details as soon as I find out
my situation ...
Baker responded:
Alrighty then. If not next week. or in January.
then definatly sometime in the Summer. Pickings
are better then too. Although it's more crowded.
The bill of particulars identifies the target of these
statements, as in Count IV, as:
Women who were the subject of Defendant Jake
Baker's E-mail transmissions and Internet postings,
including--but not limited to--Jane Doe, whose true
name is known to Defendant Jake Baker and this
Honorable Court.
This Count, too, fails to meet the constitutional "true
threat" standard. The class of potential targets, as
discussed with regard to Count IV, is far too vague.
As to the content of the communications, Baker
indicates his "need TO DO IT." Like his earlier
statements, this language indicates a desire to do
something. While use of the word "need" indicates a
strong desire, it still falls short "unequivocal,
unconditional and specific expression of intention
immediately to inflict injury," "needs" go unmet
everyday. Baker next indicates, at most, an intention
to meet Gonda at some indefinite point in the future--
in the next week, month, or several months later.
This statement does not express an unequivocal
intention immediately to do anything. Also, nothing in
the language on which the Count is based indicates
any intention to commit specific acts if Baker and
Gonda ever were to meet. Like the preceding four
Counts, Count V fails to state a charge under §875(c)
that can survive a First Amendment challenge, and
must be dismissed. This prosecution presents the
rare case in which, in the government's words, "the
language set forth ... is so facially insufficient that it
cannot possibly amount to a true threat."
----------------------------------------------------------------------
---------------

UNITED STATES of America, Plaintiff-Appellant,

v.
 Abraham Jacob ALKHABAZ, also known as Jake
Baker, Defendant-Appellee.
United States Court of Appeals, Sixth Circuit
Argued Aug. 16, 1996; Decided Jan. 29, 1997.
Boyce F. Martin, Jr., Circuit Judge
The district court dismissed the indictment against
Baker, reasoning that the e-mail messages sent and
received by Baker and Gonda did not constitute "true
threats" under the First Amendment and, as such,
were protected speech. The government argues that
the district court erred in dismissing the indictment
because the communications between Gonda and
Baker do constitute "true threats" and, as such, do
not implicate First Amendment free speech
protections.
…We conclude that the communications between
Baker and Gonda do not constitute
"communication[s] containing a threat" … . Even if a
reasonable person would take the communications
between Baker and Gonda as serious expressions of
an intention to inflict bodily harm, no reasonable
person would perceive such communications as
being conveyed to effect some change or achieve
some goal through intimidation. Quite the opposite,
Baker and Gonda apparently sent e-mail messages
to each other in an attempt to foster a friendship
based on shared sexual fantasies.
…We agree with the district court, that "[w]hatever
Baker's faults, and he is to be faulted, he did not
violate 18 U.S.C § 875(c)" … the judgment of the
district court is affirmed.
Krupansky, Circuit Judge, dissenting.
…Jake Baker (also known as Abraham Jacob
Alkhabaz), an undergraduate student attending the
University of Michigan in Ann Arbor, for some time
prior to November 1994 and continuing until
February 1995 was a regular contributor of sadistic
fictional "short stories" intended for public
dissemination and comment via a Usenet electronic
bulletin board. The appellate record contains a
substantial anthology of Baker's efforts. Overall,
these misogynistic articles evince an extreme and
morbid fascination with the concept of the physical
and psychological abuse and torment of women and
young girls, described in lurid detail, and often
culminating in murder.

The "Jane Doe story," which he named after an

actual female classmate and which in fact is a
relatively mild exemplar of the bestial genre of
Baker's fiction, follows: (Last name of a specific
female classmate of Baker's omitted).
[Warning: Graphic violent and sexually explicit
material follows]
Prologue: The following story start [sic] in media res.
The premise is that my friend Jerry and I have
broken into the apartment of this girl, [FULL NAME
OMITTED], whom I know from call [sic], and are
porceeding [sic] to have a little fun with her. ('I' = the
protagonist).

Main:
She's shaking with terror as Jerry and I circle her.
She'd [sic] almost completely nude now--we've made
her take off all her clothes except for her bra and
panties. As Jerry and I pass by her, we reach out and
feel her velvety flesh, caress her breasts and ass
through her underwear. Jerry and I snap pictures of
her tiny trembling body from all angles.
She says in a little, terrified voice, "Why are you
doing this ... I've never hurt you ... p-please stop!" I
pause in front of her. Jerry smiles at her terror. He
laughs at her pitiful pleas. I say, "Shut the fuck up,
stupid whore!" and hit the side of her head, hard. She
collapses onto the ground, crying, curling up into a
little ball.
"Alright. Let's have some fun!"
I yank her up by the hair and force her hands behind
her back. I quickly get them restrained with duck [sic]
tape. Her little body struggles against me as she
screams for help. Jerry tears off her panties and
shoves them into her delicious mouth, securing them
with a tight strip of rope.
She'd [sic] still struggling, screaming into the
makeshift gag. I let her drop, to take pictures of her
as she struggles against her bonds. As she's fighting
there on the carpet, eyes wide with fear, Jerry and I
strip. Jerry's got a hard on. I've got a hard on. We
laugh.
I grab her bra and rip it off her. Holding her still for
Jerry, he fondles her breasts, feeling up her entire
body. As she moans into the gag, Jerry comments on
how soft she is. I slap her face several time, enjoying
the smacking sounds my hand makes against her
pink skin. Forcing her to her knees, I rub my cock
into her face--over her cheeks and her eyes and her
nose. She turns her head, closing her eyes with the
humiliation, so I shove my prick as far as it will go
into her ear. Her inner cannals [sic] warm; I force it in
harder, and my penis-head scrunches up to fit into
the small hole, not quite making it. [FIRST NAME
OMITTED] groans into her gag. Then, Jerry and I tie
her by her long brown hair to the ceiling fan, so that
she's dangling in mid-air. Her feet don't touch the
ground. She kicks trying to hit me, Jerry or the
ground. The sight of her wiggling in mid-air, hands
rudely tied behind her back, turns me on. Jerry takes
a big spiky hair-brush and start [sic] beating her small
breasts with it, coloring them with nice red marks.
She screams and struggles harder. I've separated
her legs with a spreader-bar; now I stretch out her
pussy- lips and super-glue them wide open. Then I
take a heavy clamp, and tighten it over her clit. Once
it's tight enough, I let go.
I stand back, to take pictures. She's really nice now:
Dangling by her hair (I can see where it's stretching
her scalp), her breasts and belly are covered with
bright red bruises. There's a heavy clamp stretching
her cunt down. And best of all, her face is scrunched
up in an agonized grimace. Drool and loud squeaks
escape through her gag. She's so beautiful like this.
Just to add to the picture, I take a steel-wire wisk and
beat her ass with it, making bright red cuts that drip
blood. [LAST NAME OMITTED]'s tiny pink body is
now covered in sweat; nice and shiny in the light.
Jerry tells me her curling-iron's ready. Jerry unplugs
it and bring [sic] it over. After taking her down and
tying her hunched over a chair, Jerry strokes the
device against her bleeding ass cheeks. The heat
from it gives her ass small burns. I smile and stroke
my cock as she screams in pain and horror. She
shakes her head and moans, "Nooo ... nooo" through
the gag. I walk in front of her, and remove the gag.
Before she can even breath in, I ram my cock in her
tiny mouth. Her lips squeeze against my shaft. The
head of my prick finds its way down her lovely throat.
That's when Jerry ram [sic] the hot curling iron into
her tight asshole. She tries to scream, but I shove my
cock's [sic] down her throat, and all she manages to
do is gag on it. Her throat's quiverings tickle my cock,
and I start humping her face furiously. The pain of
the hot curling iron in her tender asshole sent her
whole body into convulsions; her throat clenched
against my cock. God! This felt so good.
Leaving the iron up her asshole, Jerry reached out,
pulled one of her small tits away form [sic] her body.
Jerry took his knife, and cut her nipple off. She gags
on my cock some more, and I pull out just in time to
cum all over her pretty face.
As I spew loads of hot white cum onto her face, Jerry
continues to maul at her breasts. He pulls them as
far as they'll go away from her body, twisting them to
cause even more pain. Now that she doesn't have
my cock down her throat, gagging her, [FIRST NAME
OMITTED] howls out loud. It's not even a human
sound. Her eyes glaze over from the pain and
torture; a ball of my cum smacks her in the left eye.
Spent, I go grab a beer and watch Jerry finish off
play. When he pulls the curling iron from [FIRST
NAME OMITTED]'s asshole, her sensitive skin is all
burned. He pressed the head of his cock against the
tortured opening. Jerry's got a savagely big dick, and
would have hurt this girl even if her ass hadn't been
burned. [FIRST NAME OMITTED] let out a small
scream, but was too weak at this point to make it
really loud. She only made fierce grunts as my
friend's cock tore apart the inside of her scorched
asshole.
I timed Jerry at this. He had a good constituition [sic].
For ten minutes he buggered poor pretty [FIRST
NAME OMITTED]. Then he finally came inside her.
Standing up, he walked around to see her face.
Tears and sweat mixed with my cum on her cute
face. Jerry grabbed a handful of her hair and pulled
her face up to look. Her eyes, barely human, begged
him to stop. He laughed aloud and gave her a firm
smack. Her head jerked sideways with a snap.
"C'mon, man, let's go." My friend said. So we got the
gasoline and spread it all over [FULL NAME
OMITTED]'s apartment. We chucked it over her. It
must have burned like hell when it came into contact
with her open cuts, but I couldn't tell. Her face was
already a mask of pain, and her body quivered
fiiercely [sic].
"Goodbye, [FIRST NAME OMITTED]" I said, and lit a
match ...
By November 1994, Baker's sadistic stories attracted
the attention of an individual who called himself
"Arthur Gonda," a Usenet service subscriber residing
in Ontario, Canada, who apparently shared similarly
misdirected proclivities. Baker and Gonda
subsequently exchanged at least 41 private
computerized electronic mail ("e-mail")
communications between November 29, 1994 and
January 25, 1995. Concurrently, Baker continued to
distribute violent sordid tales on the electronic
bulletin board. On January 9, 1995, Baker brazenly
disseminated publicly, via the electronic bulletin
board, a depraved torture-and-snuff story in which
the victim shared the name of a female classmate of
Baker's referred to below as "Jane Doe" [FN3] This
imprudent act triggered notification of the University
of Michigan authorities by an alarmed citizen on
January 18, 1995. On the following day, Baker
admitted to a University of Michigan investigator that
he had authored the story and published it on the
Internet.
FN3. Although the true name of "Jane Doe" was
known to the district court and to this appellate
forum, her identity has been concealed to spare this
young woman any additional and unnecessary fear,
emotional trauma, or embarrassment. The record
reflected that during an interview concerning Baker's
Jane Doe publication conducted by a University of
Michigan investigator, Jane Doe "appeared to be
controlling herself with great difficulty[,]" resulting in a
recommendation for psychological counseling by
University of Michigan personnel.
Later that month, pursuant to Baker's written
consent, university security personnel searched the
defendant's dormitory room, personal papers, and
computer files including his unique e-mail
compartment. This investigation surfaced a second
violent and reprehensible tale featuring Jane Doe's
actual name, as well as her accurate residential
address. The search of Baker's electronic mailbox
disclosed a chilling correspondence between the
defendant and Gonda chronicling the two men's
plans of abduction, bondage, torture, humiliation,
mutilation, rape, sodomy, murder, and necrophilia.
Most ominously, these messages cumulated in a
conspiracy between the two men to realize their
aberrant e-mail discussions and exchanges by
implementing an actual abduction, rape, and murder
of a female person.
…Although the majority of this panel now affirms the
judgment of the district court, it has avoided
addressing the First Amendment issue. Instead it
mandates, by judicial license, that the
communications charged in the superseding
indictment did not constitute "threats" of any kind
because the panel majority interprets §875(c) to
require, as a matter of law, that a "threatening"
communication must be accompanied by an intent to
intimidate or coerce someone to attain some
"change" or "goal." It is obvious, however, from the
concise language of 18 U.S.C. §875(c) that
Congress refused to include an "intent to intimidate
or coerce someone to attain some change or goal"
as an element of the criminal act addressed therein:
Whoever transmits in interstate or foreign commerce
any communication containing ANY threat to kidnap
ANY person or ANY threat to injure the person of
another, shall be fined under this title or imprisoned
not more than five years, or both. 18 U.S.C. §875(c)
(emphases added).
The words in §875(c) are simple, clear, concise, and
unambiguous. The plain, expressed statutory
language commands only that the alleged
communication must contain any threat to kidnap or
physically injure any person, made for any reason or
no reason.
…Thus, the plain language of 18 U.S.C. §875(c),
together with its interpretive precedents, compels the
conclusion that "threats" within the scope of the
statute in controversy include all reasonably credible
communications which express the speaker's
objective intent to kidnap or physically injure another
person …

Because the communications charged against Baker

could be found by a rational jury to constitute
"threats" within the ambit of 18 U.S.C. §875(c), the
district court's resolution that a rational jury could not
find that any of these communications comprised
constitutionally unprotected "true threats" is ripe for
review. The Supreme Court has recognized that,
while the First Amendment extends varying degrees
of protection against government censure to most
forms of expression (with political speech receiving
the most stringent safeguards), certain forms of
speech are deemed unworthy of any constitutional
protection and consequently may be criminalized. A
"threat" is a recognized category of expression which
warrants no First Amendment protection. However,
only communications which convey "true threats" (as
opposed to, for example, inadvertent statements,
mistakes, jests, hyperbole, innocuous talk, or political
commentary not objectively intended to express a
real threat) are "threats" outside the embrace of the
First Amendment's guarantees. …

… The panel majority may casually conclude within

the security of chambers that Baker's threats
conveyed to Jane Doe in his articles published on
the Internet were nonintimidating. However, Jane
Doe's reaction to those threats when brought to her
attention evinces a contrary conclusion of a
shattering traumatic reaction that resulted in
recommended psychological counseling.
Accordingly, I would reverse the district court's
judgment which dismissed the superseding
indictment as purportedly not alleging "true threats,"
and remand the cause to the lower court. I DISSENT.
Discussion Questions
Discussion Question #1
What do you think of the Supreme Court's decision in
the virtual child pornography case? The court said,
"There are many things innocent in themselves, …
such as cartoons, video games, and candy, that
might be used for immoral purposes, yet we would
not expect those to be prohibited because they can
be misused." What do you think of the court equating
virtual pornography, video games, and candy?
Discussion Question #2
The Supreme Court declined to define the harm from
child pornography as the harm of children abused by
those who consume child pornography. How should
the law define harm?
Discussion Question #3
The Jake Baker Case is particularly disturbing as it
shows the failure of the law to protect a victim when
the harm is extremely visible. Do you agree with the
court's analysis that the threats to the woman
identified in the story or to the women who were
likely targets of Baker's murder/rape/torture threats
were too vague? Do you think this case would be
decided differently today given the Internet's
increased role in our daily lives?

Discussion Question #4
What policy or law changes can you imagine to make
the Internet a safe space for women and children, a
space which does not assault our bodily integrity?
What sort of controls can you imagine that would
prevent the harm that women and children currently
suffer as a result of online pornography? How should
the law go about balancing free speech interests and
the right to bodily integrity, sexual autonomy, and
physical safety?