Speech vs. 'threats' case weaves web of uncertainty
The trial of a man accused of terrorist remarks against a church[sic] has been
delayed so that applicationof the law to the Internet can be worked out.
By Jose Arballo Jr.and Karin Marriott
The trial of a man accused of making terrorist threats against the Church
of Scientology's film studio near San Jacinto has been delayed as both
sides debate the constitutionality of the law he's accused of breaking and
its application to Internet postings.
And both sides have different opinions on whether the misdemeanor case
is unique and could have wide-reaching affects on free speech.
Keith Henson of Palo Alto is charged with two misdemeanor counts of
making terrorist threats and one count of attempting to make terrorist
threats. Henson is charged with making the alleged threats on an anti-
Scientologist news group Web site and while outside the church's Golden Era
Productions complex while he was picketing.
One legal expert said postings on Internet sites are subject to the
same laws as other speech, but he also cautioned against taking Internet
discourse too seriously.
"You need to keep in mind that the culture on the Internet is one
that statements are strongly stated. Beliefs are strongly held and
expressed. Some leeway needs to be given," said Robert C. Lind, professor
of law at Southwestern University School of Law and associate director of
the National Institute of Entertainment and Media Law.
Prosecutors contend the case against Henson is simple. They say the
58-year-old electrical engineer went too far in his criticism of the
organization, both while picketing and on the Internet. Deputy District
Attorney Thomas Gage said specific threats were made against some
employees, leaving them in fear for their safety.
"I don't think this is a novel application of the law," said Gage, head of
the Riverside County District Attorney's Hemet office. "I think it is kind
of unusual. It deals with First Amendment rights. We don't deal with a lot
of cases like that.
"It is like writing something on the sidewalk that threatens someone.
They make a statement and it is written down somewhere. It is designed to
have an affect on the other party."
Graham E. Berry, co-counsel for Henson, said he sees the case as having
a potentially precedent-setting impact on free speech.
"If the church succeeds with the prosecution (of Henson), it will
have created new law capable of being used to limit . . . free speech
and public discussion on the Internet," Berry said.
Berry, who has litigated against Scientology for more than 10 years,
said anti-terrorist statutes are not appropriate in this case because
"the evidence is clear that Mr. Henson has not made terrorist threats
"None of his postings urge the use of terrorist acts against the
church," Berry said.
Both sides were in Hemet Superior Court on Monday to make pre-trial
motions when Judge Rodney L. Walker delayed the proceedings. Walker said
he was concerned about starting the trial, going through evidence, then
asking the jury to wait as attorneys argued over the constitutionality
of the law "given the facts of the case."
Walker said part of the case involves free-speech issues and there were
some questions over whether Henson's rights would be violated. Walker
asked attorneys to return Dec. 8 with an agreement on facts of the case
and written arguments -- 15 pages or fewer in length -- on the
constitutionality of the law.
Walker indicated the case could drag on into the new year and released the jury pool that had been gathered to possibly hear the case. Gage said the case involves more than the Internet postings, which he declined to describe. The Internet, he said, "is only one part of this case." The statements made on the anti-Scientology site, combined with the threats allegedly made while Henson picketed outside the Gilman Hot Springs facility, "raises the level of the offense." "If the person making the threatening statements is right in front of you, then it changes things," he said. Lind agreed, saying one key is the imminent nature of the alleged threat. "If the person is making the threats in Paris, then it would seem the level of the threat is lessened than if the threat is made by someone in Los Angeles or, say, Riverside County," he said. Berry said the case is an attempt by Scientology to curb Henson's right to free speech. The church turned Henson's Internet postings over to prosecutors, which prompted the charges. The church has filed eight lawsuits against Henson, Berry said. In 1998, Golden Era went to court to bar Henson from picketing at the facility. A temporary restraining order was issued, but a judge later ruled that Henson was entitled to picket at the complex. Lind said it is possible that powerful institutions could use the law to pressure authorities to file criminal charges against critics. He said there has been a subtle shift in society to stifle speech that is not politically correct. In some cases, he said, students have been punished by school officials for writing and posting fictional works that upset other classmates. Lind said there has always been restrictions on certain speech, including that which is considered obscene, slanderous or incites harm to others. But authorities must be careful in their application of the law, he said. "The law, as it is applied, seems to be increasingly concerned with political correctness," he said. "Communications does not require self- censorship." Jose Arballo Jr. can be reached by e-mail at [email protected] or by phone at (909) 487-5229. Karin Marriott can be reached by e-mail at [email protected] or by phone at (909) 487-5230. Published 11/5/2000