A defendant’s claim that his online chats about kidnapping, raping and murdering women were protected by the First Amendment has been rejected by a federal judge.

Michael Van Hise, about to go on trial for a kidnapping conspiracy to target victims that included his wife, asked U.S. District Judge Paul Gardephe in the Southern District of New York to dismiss the charge because the kidnapping statute, as applied to him, prohibits “pure speech.”

But Gardephe said “there is evidence that Van Hise’s ‘speech’ crossed the line into a conspiracy to violate the law, and thus, prosecution is permissible.” He added that it is up to a jury to decided the issue of intent.

Gardephe’s decision comes ahead of a Jan. 27 trial date for Van Hise and codefendants Christopher Asch and Richard Meltz in one conspiracy, and a second conspiracy charge against Asch and Meltz for a plot to kidnap a woman who turned out to be an FBI agent acting undercover.

Van Hise came to the attention of authorities during the investigation of Gilberto Valle, a former New York City police officer who was convicted last year of plotting to abduct women and then torture, kill and eat them, as well as illegally accessing a federal database. Valle’s claim that he was merely engaged in fantasy was rejected by a jury.

Valle and others held online chats in which they discussed abduction, murder and cannibalism. Immediately before and after Valle’s arrest, Van Hise told the FBI that he had been engaged in conversations with Asch and Meltz about kidnapping his wife, stepdaughter, sister-in-law and the sister-in-law’s minor children. He also said that he and Asch had met in New Jersey to discuss the kidnapping.

Van Hise told the agents he visited darkfetishnet.com and chatted with people such as Asch and Meltz, whom he believed were ready to act on their violent fantasies or had already done so. He said he stayed in contact with them both because he wanted to help their potential victims and because he was bored. He also claimed to have contacted local police in Hamilton, N.J., to report what he had seen online.

Van Hise then agreed with FBI agents that he would “introduce” an undercover agent to Asch and Meltz, an introduction that eventually led to Asch and Meltz being charged in the Van Hise conspiracy and their own plot against the undercover agent. Van Hise was charged in the case in January 2013; Asch and Metlz were charged three months later.

Included in the allegations in United States v. Van Hise, 12 Cr. 847, was that Asch met with the undercover at the South Street Seaport on Jan. 18, 2013, and discussed the fact that Van Hise’s wife and sister-in-law were kidnapping targets.

There was also another meeting in Manhattan in March, where Asch discussed the kidnapping of the undercover with two other undercovers. He allegedly brought to the meeting a bag containing a black ski mask, hypodermic needles, handcuffs, a hammer, leather ties, forceps, sex-related torture devices and an antipsychotic drug used as a sleep agent. Asch and Meltz also allegedly implicated themselves on intercepted phone conversations.

Van Hise’s motion to dismiss states there was no evidence he did anything but talk.

“He did not have the ability, the intention, or even the actual desire to commit a kidnapping,” Van Hise attorneys Alice Fontier and Elizabeth Edwards Macedonio argued in their memorandum to the judge. “He did not agree with anyone else to take these actions. Nor did he attempt to persuade or induce his codefendants or another person to actually commit a kidnapping.”

But Gardephe said the government had offered not only evidence of email communications between Van Hise and Asch and Meltz to support the conspiracy allegations, but also alleged that Van Hise had sent photos of his sister-in-law and her children as well as the street where they lived to the pair and that he had met with Asch to discuss the plot and surveil potential female kidnapping victims.

“The emails proffered by the government show that the defendants discussed and debated at length the means by which they would carry out their plans,” the judge wrote.

In addition to saying there was evidence that Van Hise’s speech had “crossed the line,” Gardephe said there’s also “evidence that Van Hise’s conduct went beyond speech.”

“He allegedly met with Asch—not in an Internet chat room—but in ‘real life’ to discuss the kidnapping, rape and murder of women and children,” Gardephe said. “Under these circumstances, it is a jury question whether the communications between Van Hise and his alleged coconspirators rose to the level of a conspiratorial agreement.”

The judge went on to deny Van Hise’s motion to sever his trial from that of his codefendants and a motion to sever made by Asch and Meltz.

Southern District assistant U.S. attorneys Brooke Cucinella and Hadassa Waxman represented the government.

In an unrelated case, Asch was accused in 2009 of nonsexual inappropriate touching of students at Stuyvesant High School, where he worked as a librarian until he retired in 2012. His suspension from the high school was upheld by the Appellate Division, First Apartment, just a month before he was arrested in 2013. (NYLJ, March 6, 2013).