If you’re interested in First Amendment issues, you might already be familiar with the case of Olutosin Oduwole, the Illinois college student who in 2011 was sentenced to five years in prison for attempting to make a terrorist threat—even though he never actually attempted to threaten anybody. Last week, an Illinois appellate court reversed Oduwole’s conviction, issuing an opinion that's a thoughtful affirmation of free speech principles and a rebuke to all those who would prosecute people for thought-crime.
In the summer of 2007, a few months after Seung-Hui Cho shot and killed 32 people on the campus of Virginia Tech, police noticed an apparently abandoned car on the campus of Southern Illinois University-Edwardsville. Before police could tow it, they were required to inventory its contents, and while doing so they found a handwritten note threatening that “a murderous rampage similar to the VT shooting will occur at another
prestigious highly populated university. THIS IS NOT A JOKE!”
The note and the car were traced back to Oduwole, a SIU-E student who had recently drawn police attention after ordering four semi-automatic handguns over the Internet. Oduwole was arrested and charged with attempting to make a terrorist threat, a Class 1 felony. (He does not appear to have had a criminal record prior to 2007; however, around that time, he was also charged with felony theft and computer fraud for using the Internet to sell a gun that he did not actually own.) Oduwole claimed the note was only a draft of some rap lyrics, but the jury didn’t buy it: In 2011, he was convicted and sentenced to five years in jail.
I'll come right out and say that Oduwole’s note doesn’t look like your typical rap song. (For one thing, it’s very hard to see how he would’ve found a good rhyme for “highly populated university.” The best I could do was “highly complicated perversity,” which is terrible.)
But it doesn’t look like your typical terrorist threat, either. You know one thing that most successful threats have in common? They’re actually disseminated by the threateners. They’re mailed, or posted on the Internet, or slipped under somebody’s door, or whispered anonymously in brief, breathy phone calls. Oduwole’s note was found, face-down, under the center console of a locked vehicle. It would’ve been impossible for any passerby to read the note and become alarmed by it. There were no stamps, no envelopes, no indication that Oduwole was planning to mail the note or actually attempting to threaten anyone. Prosecuting Oduwole on the basis of this note is like prosecuting your sister for writing “I’m totally going to kill Becky” in her diary.
Under Illinois laws, a person is guilty of "attempt" when a jury finds that he or she has taken a "substantial step" toward the commission of a crime. But what constitutes a substantial step? In her opinion, Justice Judy Cates calls it a preparatory act that places an aspiring criminal "in a dangerous proximity to success." You can imagine the sort of evidence that might qualify as a "substantial step" toward making a terrorist threat: email correspondence establishing intent; a sheaf of stamped envelopes addressed to potential threatenees; a binder labeled "Plans For How I Will Threaten People."
But the only real evidence against Oduwole was a single scribbled note hidden out of sight in a locked car, which, as Cates writes, hardly constitutes "dangerous proximity to success." Cates found little evidence that Oduwole had actually planned to disseminate the note or follow through on his alleged threats. I think any reasonable person would have to agree. But it’s hard to be reasonable when dealing with school shootings, or the prospect thereof. It’s important to remember that all this happened a few months after Virginia Tech, when the entire country was wondering how nobody had noticed that Seung-Hui Cho was a ticking time bomb. With that in mind, I understand why the SIU-E campus police jumped to conclusions and brought Oduwole in.
But I do not understand how it took a jury less than four hours to find Oduwole guilty and send him to jail for five years. There was nothing but reasonable doubt in this case. At the time, Oduwole's lawyer called the jury's decision "a First Amendment train wreck," and I can't disagree. Oduwole’s words were alarming, sure, but we’re allowed to say, write, and think alarming things in private. Writes Justice Cates: “In the absence of sufficient evidence that the defendant had taken a substantial step toward making a terrorist threat, his writings, as abhorrent as they might be, amount to mere thoughts.” Her opinion serves as a valuable reminder that abhorrent thoughts alone are not a crime.