A few weeks ago, CNN had a story on how a jury failed to convict
Peter Wexler, an unemployed IT worker, who had been arrested and spent nearly a year in jail (without bail) for writing some mean stuff on his blog
. He was literally arrested for five blog posts (which came with 20 criminal charges, as they had multiple charges on each post) and was facing up to 15 years in jail for those posts. Ken "Popehat" White blogged briefly about it, noting that it was a huge First Amendment win
in a case where the defense team included one of his partners, Caleb Mason (along with lawyer Marri Derby, who was appointed by the court to represent Wexler through the Criminal Justice Act). It's also a case that involved... me. I was an expert witness in the case, brought in to explain to the jury the nature of internet discourse, including how trolls quite frequently say outrageous things to get attention, and how it's (for better or worse) not that uncommon to see people post angry rants on the internet, or to talk about how certain people should die, or to photoshop famous people into weird scenarios.
I've avoided writing about the case up until now, mostly because of my involvement. And since Wexler was found not guilty on some charges, while the other charges resulted in a hung jury (the jury foreperson said that they voted 8 to 4 to acquit on those other charges), there's a chance there may be a second trial. So recognize that it's a case that I may still have future involvement in -- and where I'm choosing my words carefully (the prosecutors in the case tried to take some of my posts on Techdirt out of context to attack my credibility, and it's possible that could happen again -- though I will admit to some confusion over being asked, twice, on the stand if I consider myself "an advocate for internet freedom," as if that were a bad thing).
What I will say is that I was asked to review Wexler's blog -- and while I certainly don't agree with much of what he wrote there, I didn't see anything that seemed out of character in many internet forums. Much of it seemed straight out of 4chan's /pol/ honestly. Wexler cheered on ISIS beheadings and cop shootings. He blasted US politicians and US policy both at home and abroad. He's not a fan of the mainstream media. He's not a fan of any "establishment" politician, and would mock them all, while cheering on both Donald Trump and Bernie Sanders. In short, he had opinions and he expressed them, sometimes angrily and in ways that were clearly designed to get people to react. At one point, responding to the news that the online troll Joshua Goldberg had been arrested
(a story we wrote about, in part because of my own interactions with Goldberg), Wexler declared himself to be an "ISIS SUPPORTING ONLINE TROLL" (echoing the language being used to describe Goldberg):
Even an FBI special agent, Voviette Morgan, noted to others in the Bureau that "everything we have reviewed to date [on Wexler's blog] falls into the category of First Amendment protected speech." But the FBI still sent some agents to visit him. And that led him to post some fairly angry rants against the FBI and the FBI's top agent in Southern California, David Bowdich (who has since moved up to a new position in DC), including the one in the image above.
After a few more posts calling out Bowdich, and photoshopping him into a variety of images -- including taking a picture of a Bowdich press conference and overlaying a forearm and hand holding a gun pointing at Bowdich, overlaying a target on Bowdich's face in a press shot, and photoshopping Bowdich into a still from an ISIS beheading video (something that Wexler did with other people, including Brian Williams and Ben Carson, which the FBI also seemed to think was protected speech), Wexler was arrested, with the charges focusing on his posts about Bowdich, and arguing that statements like what he says above about how he wants "to shove my Fat Man Gadget up David Bowdich's limpwristed West Los Angeles ass, and I intend to!" should be seen as a legitimate threat on Bowdich's life (anyone know what a Fat Man Gadget is?).
Wexler then spent basically the last year in jail for a bunch of angry blog posts
, without even the option of being bailed out allowed. There were a number of other issues at play in the trial, some of which I may get to in a future post, but I was there to just explain the nature of online trolling, and how what Wexler said -- while certainly distasteful, and perhaps offensive -- was hardly out of the ordinary in certain online communities, and how many people in those communities recognized that kind of shitposting for what it was, and would laugh at those who "fell" for such extreme and offensive statements. I got to explain 4chan and trolling and even the creation of memes (yes, I explained rickrolling to a jury). I discussed numerous examples of similar blog posts, tweets, Facebook posts and forum posts. I highlighted numerous examples of people declaring publicly that some public figures (and some not so public figures) should be executed. I talked about (and showed examples of) politicians calling for the death of Hillary Clinton. I talked about photoshopping and photoshopping contests -- including ones that involved photoshopping targets or First Person Shooter-style overlays onto images of people. I showed many examples of famous people having targets overlayed on their images.
Basically, I showed the simple fact that in some corners of the internet, posting crazy offensive stuff is pretty commonplace, and it rarely means they're actually planning to go out and do anything. I don't know how useful my testimony was, though the fact that Wexler was not convicted and is now free from jail at least suggests it did not hurt the case. I recognize that what Wexler was saying on his blog is stuff that many people find offensive -- but if what he said was a crime, then a hell of a lot of people spouting off online are criminals too, and I'm pretty sure that's not how the First Amendment is supposed to work.
Once the case is really over, there are some other elements of the case that I'd feel more comfortable discussing, but for now, since a few people had asked about it, I did want to share this part of the story. A guy just spent nearly an entire year in jail because he blogged some (admittedly extreme) things in expressing his anger over the state of things in the world today. I may not agree with Peter Wexler's views on most of those things, but it seems like he should have the right to express himself on a blog without being thrown in jail for a year (or much longer).