E-Mail Hate Case Tests Free Speech Protections

The electronic mail from “Asian Hater” was chilling.

All Asians should leave UC Irvine, otherwise Asian Hater would “hunt all of you down and kill your stupid asses.”

“I personally will make it my [life’s work] to find and kill everyone of you personally. OK? That’s how determined I am,” said the message transmitted to about 60 UCI students. “Do you hear me?”

Asian Hater turned out to be Richard Machado, a 19-year-old UCI student who was struggling to maintain passing grades in school.

Upon learning his identity, authorities charged Machado, a newly naturalized U.S. citizen from El Salvador, with 10 counts of civil rights violations, the first federal prosecution of a hate crime allegedly committed on a computer network.

In a case that promises to roil the ongoing debate over freedom of speech in cyberspace, Machado’s attorneys are asking a federal judge in Santa Ana to strike down as unconstitutional the law under which Machado was charged. The law conflicts with the normal practices of the electronic age, they say.

“Mr. Machado’s words may be offensive to some people,” said Deputy Federal Public Defender Sylvia Torres-Guillen. “But it is not . . . acceptable for the government to prohibit or criminalize his speech because of the politics which underpin it.”

Legal experts say the case is veering into uncharted territory, raising questions such as: When does speech become criminal conduct? When do words wound? And should speech on a largely unregulated computer network be subject to the same legal standards as speech in any other medium?

Federal prosecutors are insisting that Machado’s threats to kill students were not protected speech.

Machado sought to interfere with the rights of students to attend a public school, and his action, according to Assistant U.S. Atty. Michael J. Gennaco, violated the same laws as were violated by Southerners who sought to prevent blacks from entering schools, parks and other public places during the turbulent 1960s.

Machado’s case may mark the first prosecution of a hate crime in cyberspace, but it is one that law experts say is likely to become more common, as hate groups have taken to the Internet with messages and electronic campaigns against minorities.

“We’re going to see more of [these cases], especially since the Internet gives some people a cloak of anonymity,” said Gabriel Jack Chin, a professor at Western New England College School of Law in Springfield, Mass. “A quiet and introverted person with a modem and computer could turn himself into a Rambo.”

The e-mail message that could put Machado behind bars for as long as 10 years was transmitted on Sept. 20, 1996, from the school’s engineering building. It was 11 sentences long.

Machado addressed the recipients as “Hey, Stupid F*****,” before informing them “I hate Asians.” If it weren’t for Asians, he went on, UCI would be a “much more popular campus.”

“You are responsible for ALL the crimes that occur on campus,” according to Machado’s e-mail, the text of which was released for the first time in court papers filed last week. “That’s why I want you and your stupid ass comrades to get the f*** out of UCI.”

UCI campus police traced the e-mail to Machado, who a week later gave a handwritten confession to investigators, which was released along with the message’s text.

Machado claimed he was “bored” and “wanted to see people’s reaction to an e-mail” threat, according to the confession.

Machado said he gave the message “a sense of hatred” but “meant no harm whatsoever. . . . My intentions were spontaneous, unrehearsed and with no bad intentions.”

*

In a subsequent statement to campus police, Machado said he targeted Asian American students because, among other things, they were doing better than he was in school, according to Gennaco.

The e-mail incensed and traumatized some Asian American students, who make up nearly half of UCI’s roughly 17,000 students, the largest percentage of any UC school.

Some students sought out UCI counselors for help. Others, including Nicole Inouye, chairwoman of UCI’s Asian-Pacific Student Assn., met with Machado.

Inouye said the young man, whose father still lives in El Salvador, appeared soft-spoken and contrite. He apologized for hurting their feelings.

But if Machado thought that sitting at a computer keyboard and typing a hate-filled message was harmless, he found out otherwise in mid-November when a federal grand jury indicted him on 10 counts of civil rights violations.

In this digital age, there are no laws that specifically address hate crimes in cyberspace. But Gennaco got around that problem by using the federal Protected Activities Act, a statute passed by Congress in the 1960s to overcome obstacles to school desegregation in the South.

The law seeks to penalize anyone who “whether by force or threat of force . . . attempts to injure, intimidate or interfere with . . . any person because of his race, color, religion and national origin and because he is or has been enrolling in or attending any public school or public college.”

Before Machado’s indictment, the federal government had sought to charge only one other person with using e-mail to threaten violence, and that case had sexual--rather than racial--undertones.

A University of Michigan sophomore was charged in 1995 with using a university computer to post a lurid sexual fantasy about torturing and raping teen-age girls.

But a federal judge in Detroit dismissed the indictment because the message did not name a specific individual. The communication was “pure speech,” the judge said, and subject to 1st Amendment protection.

While federal prosecutors were still contemplating his indictment for hate crimes, Machado reportedly left the country. Then, in early February, a disheveled Machado walked across the border from Mexico and into the custody of U.S. authorities at a border crossing in Nogales, Ariz.

If Machado is convicted, his sentence could be lengthened by several months because he allegedly took flight to avoid prosecution.

His pending trial has reignited the debate about freedom of speech on the largely unfettered Internet.

*

According to some experts, people who log onto a computer network accept the risks of encountering inflammatory speech, because the Internet is a domain where talk is cheap and “flame wars”--or vitriolic exchanges among computer users--are commonplace.

In papers filed last week, defense attorney Torres-Guillen said the law under which Machado was charged hinders “pure speech” because it “seeks to criminalize the sending of an e-mail message.”

Torres-Guillen wants the court to define the “injury, intimidation and interference” referred to in the 1960s statute.

“Injury should not be interpreted to include hurt feelings or offense,” she said, arguing that it “should be physical in nature.”

“The government should have to show that the alleged victim literally could not participate in one of the enumerated protected activities,” Torres-Guillen said. “The government may not be able to rest its case on the discomfort or embarrassment that victims may feel.”

Gennaco responded that the government is not prosecuting Machado simply because it disagrees with his message.

Machado is facing charges because he “threatened to hunt down all of the recipients of [the e-mail message] and kill them,” Gennaco said.

The threat was credible, Gennaco said, because Machado had to manually type the e-mail address of each recipient. It’s as if “he had typed and made numerous copies of one threatening letter, manually addressed each of the envelopes to his targeted victim, and then dropped the bundle of letters in the mail on the same day.”

“Such conduct is outside the [protection] of the 1st Amendment,” Gennaco said.

Several law experts agreed with Gennaco’s contention that the U.S. Supreme Court has consistently held that threats to use force are not protected speech, but no case has ever been examined within the context of the Internet.

Chin, the Western New England law professor who teaches criminal and constitution law, said Machado’s speech could have received constitutional protection if he had sent a slightly different message. “It’s OK under the law to say that ‘All Asians should be liquidated,’ ” Chin said. “But you’re in hot water when you say you are going to ‘personally find and kill’ every recipient of the message.

“The defendant appears to be a pathetic, mentally unstable individual and perhaps this is not a situation in which the full weight of the law should be brought to bear on him,” Chin said.

Andrew H. Good, a Boston lawyer who has argued cases involving the law and cyberspace, said U.S. District Judge Alicemarie H. Stotler, who will rule on Machado’s motions on Aug. 8, will have to decide whether the student’s threats were “credible.”

“The Net offers some characteristics that are not present in the mail stream or the phone,” Good said. “If [Machado’s attorney] can show that dozens of people were party to this communication, then he could possibly claim it’s [akin] to a guy standing in the middle of the street” yelling idle--and harmless--threats.