Start by thinking about Grimm’s Fairy Tales.
Literature reveals the human capacity to imagine the horrible. Psychiatrists and psychologists clock numerous hours listening to patients describe fantasies, sometimes lurid and violent ones. Private diaries include musings about terrible thoughts and feelings. All of these things were true before the internet, and are true today. Now, people who imagine horrible things can find communities of like-minded souls on line and they can communicate with one another about what they imagine. In New York, a police officer, Gilberto Valle, is on trial as a consequence of using his wife’s computer to communicate with a fetish group. His thing — cannibalism. He faces prison for a series of postings in which he described killing his wife and many of her friends. The postings are alarmingly specific. At the same time, published materials suggest he never did anything to act on his fantasies. He just shared them with other disturbed people on the internet.
In the wake of recent tragedies, including Columbine and Aurora, forensic examination of internet use revealed postings that hinted at or described the ultimate crimes. At the same time, parents who talk to their children about their internet use often find that they are participants in fantasy games that are essentially violent. Through these games, young people meet others who enjoy and are engaged in similar fantasies. Who knows what kinds of things they imagine together? Are those imaginings crimes? I don’t think so. Instead, I believe that people tell stories about what they imagine to give their darkest thoughts room to escape — an adult version of the release of violent fantasy Fairy Tales may provide for children . These narratives, like fiction, take the place of action and, ultimately, are forces that have more power to protect than to threaten.
When he ran for President in 1976, Jimmy Carter famously told Playboy Magazine that he had felt lust in his heart for women other than his wife, Roslyn. Detail is unnecessary here, but feelings or fantasies like that are human. They are not the same as actions. Whatever you may think of his admission, and no matter how detailed his thoughts were, Jimmy Carter did not commit adultery by thinking or speaking. Should it be different if, instead of having those thoughts in private, he had found an on-line chat room and described, in meticulous detail, his erotic plans? Of course not — whatever the private implications of such thoughts — the decision to share them is merely the expression of his fantasy.
In some ways, the issue in New York is whether the expression of a fantasy amounts to a criminal act. Officer Valle described, in meticulous and disturbing detail, his imagined murder of his wife. He described putting one of her friends in an oven. And he did so in virtual groups of people who encouraged his dark thoughts. The federal government wants to put him in jail. In their version of the story, his wife’s discovery of her husband’s virtual life saved her and his on-line expression of his thoughts were part of a conspiracy (or plan) to commit kidnapping for which he should spend his life in jail. His lawyer responds simply: “It’s pure fiction. It’s pretend. It’s scary make-believe.” Her point: people in this country do not go to jail for expressing their thoughts. She has the principle exactly right. I do not know enough about the case to know whether Officer Valle should face prison or not. That question is properly for a jury of his peers.
Most of us will go through our lives without imagining or describing taking another’s life in detail. Still, there are many more who will have such thoughts and never act on them whether they express them or not. Part of the privilege of living in this society is the freedom to imagine and even describe dark and worrisome things. If you take that freedom seriously, you must also accept the existence of these dark chat rooms on the internet, where troubled people share their fantasies and, with the release provided by that communication, go back to their lives without ever harming another person.
Our most powerful principles come with a price. Proof beyond a reasonable doubt means that we would prefer to release a guilty person than incarcerate an innocent one. Freedom of speech means even hateful ideas can find a forum. In thinking about fantasies broadcast over the internet, freedom of thought and speech together demand their own price. Absent an act, we should absorb the risk that some of these communications reflect intent in order to enable and protect those communications that do not. In circumstances where there is an act, like the purchase of a weapon or otherwise, such expressions are powerful evidence of criminal intent. By themselves, however, they are simply stories. In some cases, stories that, because they are told, never become crimes.
We have been here before, Josh: http://www.nytimes.com/2001/07/19/opinion/in-america-the-thought-police.html