Inconsistent Pleadings: What is the Internet If Not a Clearinghouse for All Manner of Off-Topic, Anal-Related Comments?

As in great works of literature, the narrative arc of judicial opinions is often apparent in the first line. Consider this opener from a recent California appeals court case: "A 15-year old high school student was pursuing a career in entertainment and maintained a Web site for that purpose." If I tell you that said website was comment-enabled, I probably don't need to add that this kid's electronic ode to himself became a repository of homophobic juvenalia within hours of its discovery by his classmates.

Everyone can appreciate adolescent comments about anal lube. But sandwiched between references to the extreme gayness of the proprietor were more alarming nuggets, like this: "I want to rip out your fucking heart and feed it to you." The California case concerns the point at which permissible teenage taunts become actionable threats, when Internet goofs by schoolkids became places for judicial intervention. (Spoiler alert: around the time you threaten to feed someone his organs.)

The website in question belonged to "D.C.," a Harvard-Westlake student and hopeful tween heartthrob who goes by the stage name/rejected porn handle "Danny Alexander." Relevant facts about Danny, in increasing order of embarrassingness: (1) he starred in the film "Steal Me," which was shown at the Brooklyn Film Festival; (2) he toured with the Disney radio network; and (3) he was planning on releasing an album containing the expected smash single, "Freakyside," which someone needs to download for me, immediately.

So far, so gay. The trouble began where trouble often does: PSAT class, where a student, who we'll call R.R., first encountered Danny the Human Punchline. Shortly after class, R.R. discovered Danny's website, finding highly amusing pictures of Danny accompanied by comically sensual physical descriptions (e.g., Danny unironically donning a T-shirt reading, "SUCCESSFUL," references to Danny's "golden brown eyes" and "midnight brown" locks).

Someone in Danny's entourage — someone with no working knowledge of the Internet, obviously — decided it was a good idea to allow visitors to comment on Danny's site. A sampling of what R.R. found in the comments section (and it goes without saying, SIC):

"you are a total fag, how does that cock feel in your butt."

"You are so fucking orgasmic. I'm wet . . . oops I peed my pants. You look exactly like Britney! EXACTLY! Your career is bound to go NOWHERE . . . but up a BUTT!"

"you take it in the ass just about every minute of every day."

"I think you should change your name from danny alexander to meat-pole tarzan"

"my beard is longer than your dick. asian guys be walkin around like 'DAMN HE HAS A SMALL PENIS."

"You are a rump-ranger, uphill gardener, ring-raider, anal pressure washer, cum dumpster."

"We here at Ky Jelly [] wanted to know if you would be the spokesperson for our new anal lube. You obviously get fucked in the ass more than anyone else on earth."

And finally, my two favorites:

"I LOVE YOU I REALLY HOPE YOU ARENT REALLY GAY I DON'T THINK YOU ARE BUT I THINK YOU'RE THE BEST"

"you damn democrat"

I know what you're thinking: (1) haha; (2) So what?; and (3) This is different from the comments section of any other website exactly how? After all, what is the Internet if not a clearinghouse for all manner of off-topic, anal-related comments?

On Danny's site, though, some decidedly more menacing sentiments were interspersed among the comments about Danny's butt: "faggot im gonna kill you," "you are officially wanted dead or alive," and "[You need] a quick and painless death." To this bit of "Internet graffiti," as he called it, R.R. added the following: "I want to rip out your fucking heart and feed it to you . . . I've . . . wanted to kill you . . . If I ever see you I'm going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you burn in hell."

To our great loss, Danny shut down his website after seeing the comments. He also dropped out of Harvard-Westlake and moved to Northern California. And then he sued the anonymous commenter-students, claiming that they violated California's hate crime laws and defamed him by falsely calling him gay.

Not surprisingly, R.R. was one of the commenters sued. He moved to dismiss the case, arguing essentially that his comments were valid exercises of free speech and thus were not actionable as a matter of law. (R.R.'s legal hook was California's "anti-SLAPP" statute, which aims to foster public debate by barring lawsuits based on statements concerning issues of public interest.)

The primary question for the California courts was whether R.R.'s comments were "true threats," falling outside the ambit of the First Amendment, or instead were harmless bits of immature jocularity, protected as free speech.

R.R. offered an interesting two-point defense. First, he made it clear that he has nothing against gay people. He has a friend in Harvard-Westlake's Gay-Straight Alliance. In addition, "one of [his] favorite relatives is openly homosexual." He also once brushed up against some gay people during an AIDS walk. (Really!) So his "dick-riding penis lover" comment was definitely not motivated by homophobia, OK?

Second, he informed the courts that at the time of his comments, he'd been reading up on the Four Noble Truths, which sometimes engender fits of uncontrollable rage. Let R.R. explain: "I had spent time studying Buddhism, and in light of the Buddhist tradition of quiet understatement, the website's distinctly narcissistic tone was disturbing."

If you can believe it, neither the trial court nor the appeals court [PDF] was persuaded by R.R's arguments. Both courts found that R.R.'s comments were threatening on their face, and that R.R.'s subjective intent in posting was irrelevant in light of the comments' facially sinister nature. Because the comment was not protected by the First Amendment, the courts held, Danny's lawsuit could proceed.

That's probably the right call. For one thing, a threatening homophobic comment really isn't any less threatening because it appears amongst inane homophobic comments. And though no one wants a censored Internet, surely we can live with a rule that allows us to deploy the full range of vulgarisms short of calling for someone's violent death. Homophobes can be First Amendment champions; the guardians of free speech are often odious. But the online equivalent of tossing a burning cross on someone's lawn is not exactly the type of speech that implicates core First Amendment values.

Of course, Danny's victory means only that he's cleared an initial legal hurdle. He still has to prove that he was defamed by false accusations of gayness, a mission about which you're forgiven for feeling somewhat ambivalent. No one feels bad about putting the legal squeeze on some rich, twerpish homophobes, but is the way to do it a cause of action centered on the claim that being called gay is defamatory? Even if Danny is right (and he might be, at least as far as an acting career is concerned), he'll likely never be able to show that his classmates' puerile comments aborted his entertainment career. In which case, Danny's recovery will likely be limited to the cost of moving to Northern California, with a few extra dollars for pain and suffering. This is hardly a fair exchange for the sad pile of broken dreams that Danny lugged with him to San Francisco, but it's a lot more than people typically get for the same load.

Ian Retford is the pseudonym of a lawyer in New York City.