Cannibal Cop and the First Amendment: Freedom for Thoughts and Fantasies We Hate

Cyberspace is awash in verbal vomit, offensive diatribes and morbid musings. But that doesn't necessarily mean that the sordid speech in question always falls outside the confines of the First Amendment safeguard of free expression.
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Cyberspace, perhaps due to the false sense of anonymity it provides, is awash in verbal vomit, offensive diatribes and morbid musings. But that doesn't necessarily mean that the sordid speech in question always falls outside the confines of the First Amendment safeguard of free expression. That was made abundantly clear earlier this week.

On Monday, U.S. District Judge Paul Gardephe threw out the jury conviction of former New York Police Department officer Gilberto Valle, the so-called Cannibal Cop, for conspiracy to commit kidnapping via a series of graphic and grisly online posts and communications replete with sexual violence and, as the moniker "cannibal" suggests, cooking and eating women.

The case of United States v. Valle is important not only because it comes out of the powerful and prominent Southern District of New York, but also because it tests the limits of both offensive speech protected under the First Amendment and what some might consider to be thought crimes, especially when those thoughts manifest themselves in speech on a game-changing medium where almost anything seems to go.

As Valle's attorney, Julia Gatto aptly put it, Valle was "guilty of nothing more than very unconventional thoughts... We don't put people in jail for their thoughts. We are not the thought police and the court system is not the deputy of the thought police."

The case, as the judge wrote, also "reflect[s] the facts of the Internet age in which we live." One of those facts is that people feel a greater sense of freedom to engage in expression that offends and pushes the boundaries of the freedoms of speech and thought afforded by the First Amendment. They also feel free to publish, as the judge found Valle did, "a veritable avalanche of false, fictitious and fantastical information."

Ultimately, as Judge Gardephe concluded, "this is a conspiracy that existed solely in cyberspace" and "no reasonable juror could have found that Valle actually intended to kidnap a woman" on the dates mentioned in online messages. The judge added that "the point of the chats was mutual fantasizing about committing acts of sexual violence on certain women." As such, and given his own stream of false statements about himself, Valle lacked the requisite criminal intent necessary to convict him for conspiracy to kidnap.

In 2002, Justice Anthony Kennedy wrote an opinion for the U.S. Supreme Court in a case called Ashcroft v. Free Speech Coalition striking down a law that banned "virtual" child pornography. Specifically, the federal statute targeted images that did not involve actual, living-and-breathing minors, but images that simply appeared to be of minors engaged in sexually explicit conduct. In brief, it would have been a thought crime to fantasize over a copy of Barely Legal magazine which, as its title suggests, contains images of women who are of legal age but who also may appear to be younger.

Justice Kennedy wrote:

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.

Kennedy's rhetoric and reasoning may be noble and high brow and, in stark contrast, the speech of the Cannibal Cop may be decidedly offensive and low brow, but protecting offensive expression and, in particular, offensive fantasy is a price we pay for safeguarding more valuable thoughts and speech.

The late Justice Oliver Wendell Holmes once put it that "if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought -- not free thought for those who agree with us, but freedom for the thought that we hate."

What's the big-picture impact of the Valle decision?

As I told NBC News, the case is confined to its unique facts and courts in other jurisdictions are not bound to follow it, but the decision puts "down on paper for the first time... a line of reasoning about the Internet... that is important." Prosecutors might think twice when considering criminal cases based largely on online postings filled with hyperbole and fantasy. The Internet simply is a different beast when it comes to speech and our expectations about the content posted on it have changed along with it.

Furthermore, there is no indication just how much jurors in Valle's case were swayed in convicting him because of the sheer grotesqueness of his chats, regardless of the underlying elements of the crime of conspiracy to kidnap. But offensiveness alone is not sufficient grounds for punishing speakers. As the U.S. Supreme Court famously observed in 1971 in making the point that matters of taste and style should not be left to the government, "one man's vulgarity is another's lyric."

Few will find Valle's thoughts lyrical and most will find them more than just vulgar, but ultimately they are just that -- thoughts and fantasies.

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