In the wake of 9/11, Mark Keyser wrote a book about the dangers of anthrax called Anthrax: Shock and Awe Terror. Unable to find a publisher, he went the DIY route, putting together a CD with his book on it. That’s when things got weird. As the Ninth Circuit explained:
In an attempt to secure publicity for the book, Keyser mailed a package to the Sacramento News & Review in 2007. The package contained a letter, a CD containing Keyser’s book, and a small spray can with a label stating ‘ANTHRAX’ and displaying a biohazard symbol. The package prompted employees to call 911 and to evacuate the building, and numerous emergency agencies responded.It worked, after a fashion. The incident got the attention of the FBI, which sent agents to talk to Keyser and explain to him the trouble it all caused and told him not to do it again. Keyser agreed that he wouldn’t.
But you know where this is going, right?
The next year, Keyser sent out approximately 120 packages to various news outlets, elected officials, and businesses. The materials sent to news outlets and elected officials were placed in business envelopes. They contained a CD printed with a picture of Colin Powell, the book title, and Keyser’s name. The CD contained over half of the contents of Keyser’s book. He attached a white sugar packet to the front of the CD with the sugar markings covered by a label stating ‘Anthrax’ in large letters, ‘Sample’ in smaller letters, and an orange and black biohazard symbol.This time, Keyser was charged criminally as a result of packages sent to a California Congressman, a McDonald’s, and a Starbucks. He was convicted on five counts and sentenced to 51 months in prison. His convictions stood on appeal, although the court vacated his sentence due to a miscalculation of the Sentencing Guidelines.
The materials sent to businesses were placed in purple greeting card envelopes. They contained a card with the same Colin Powell picture and ‘Anthrax’ sugar packet on the front and a short blurb about the book inside. The card directed recipients to visit a website to learn more about the book.
Keyser’s most novel argument was that his promotional scheme was protected by the First Amendment. The court disagreed, finding that the mailings constituted true threats and that Keyser at least knew they could be interpreted that way:
We also conclude, after reviewing the record as a whole, that Keyser had the requisite subjective intent to threaten when he mailed the packages to McDonald’s and Starbucks. At trial, Keyser testified that he was not trying to scare the people who received his packages and letters, and that he did not want people to believe the packets actually contained anthrax. However, he did agree at trial that he knew that some people ‘might at least briefly be concerned that maybe this is real anthrax.’ He also stated that he intended the packets to be ‘provocative’ and wanted people to have ‘a reaction’ and be ‘concerned about the danger we’re in.’ He testified that he was not trying to cause a panic, but agreed that attracting attention to the book ‘was definitely worth it even if people were frightened.’He was certainly right on that score. Regardless of what sentence Keyser ultimately receives on remand, one would think he might have learned his lesson at this point. But as the Ninth Circuit Blog points out:
One of the agents who interviewed Keyser after his arrest testified that Keyser said, ‘Well, I did want it to cause concern. I wanted to cause a buzz.’ Keyser also told him that ‘[h]e wanted people to believe they had received a sample of Anthrax; that they wanted him [sic] to have the visceral reaction to seeing it so it would drive his message home.’ The same agent reported that Keyser expressed that he expected the FBI to contact him after he sent out his 2008 mailings.
Quoting Protestant reform leader Martin Luther, Keyser refused to recant: ‘I neither can nor will make any retraction, since it is neither safe nor honorable to act against conscience.’Presumably the sequel to Anthrax: Shock and Awe Terror will be nailed to a set of big wooden doors somewhere. That would not be the worst promotional idea I have ever seen:
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