in Interest of R.D

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ADVANCE SHEET HEADNOTE
June 1, 2020
2020 CO 44
No. 17SC116, People in Interest of R.D.—First Amendment—True Threats—
Social Media.
The supreme court reviews whether the court of appeals erred in
determining that threatening messages the juvenile defendant posted on Twitter
were protected speech under the First Amendment. In so doing, the court refines
its earlier statements of the general framework for distinguishing a true threat
from constitutionally protected speech and offers specific guidance for applying
that test to statements communicated online.
The court holds that a true threat is a statement that, considered in context
and under the totality of the circumstances, an intended or foreseeable recipient
would reasonably perceive as a serious expression of intent to commit an act of
unlawful violence. In determining whether a statement is a true threat, a
reviewing court must examine the words used, but it must also consider the
context in which the statement was made. Particularly where the alleged threat is
communicated online, the contextual factors courts should consider include, but
are not limited to (1) the statement’s role in a broader exchange, if any, including
surrounding events; (2) the medium or platform through which the statement was
communicated, including any distinctive conventions or architectural features;
(3) the manner in which the statement was conveyed (e.g., anonymously or not,
privately or publicly); (4) the relationship between the speaker and recipient(s);
and (5) the subjective reaction of the statement’s intended or foreseeable
recipient(s).
The court reverses the judgment of the court of appeals and remands with
instructions to return the case to the juvenile court to reconsider the adjudication
under the refined framework.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 44
Supreme Court Case No. 17SC116
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 14CA1800
Petitioner:
The People of the State of Colorado,
In the Interest of
Respondent:
R.D.
Judgment Reversed
en banc
June 1, 2020
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Joseph G. Michaels, Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
Megan A. Ring, Public Defender
James S. Hardy, Deputy Public Defender
Denver, Colorado
JUSTICE MÁRQUEZ delivered the Opinion of the Court.
¶1 The First Amendment’s protection of speech is robust, but not absolute: it
does not, for example, safeguard the utterance of a “true threat.” The task of
identifying a true threat has been complicated by the advent of social media. At
the same time, the proliferation of online expression has amplified the potential
for threatening words to cause harm. This case, which stems from a late-night
argument on Twitter among several high school students, requires us to confront
this changed communication landscape and to refine the applicable framework for
distinguishing a true threat from constitutionally protected speech where that
communication occurs in the cyber arena.
¶2 R.D., a juvenile, was adjudicated delinquent for harassment by
communication under section 18-9-111(1)(e), C.R.S. (2013), based on tweets he
directed at another student during a heated exchange that took place in the wake
of a local school shooting. The narrow question before us is whether R.D.’s
statements were “true threats.” If so, then application of the statute to his conduct
did not violate his First Amendment right to free speech.
¶3 In light of U.S. Supreme Court case law, we refine our earlier statements of
the framework for distinguishing a true threat from constitutionally protected
speech. In addition, we take the opportunity to provide guidance for applying
that test to statements communicated online.
2
¶4 We hold that a true threat is a statement that, considered in context and
under the totality of the circumstances, an intended or foreseeable recipient would
reasonably perceive as a serious expression of intent to commit an act of unlawful
violence.1 In determining whether a statement is a true threat, a reviewing court
must examine the words used, but it must also consider the context in which the
statement was made. Particularly where the alleged threat is communicated
online, the contextual factors courts should consider include, but are not limited
to (1) the statement’s role in a broader exchange, if any, including surrounding
events; (2) the medium or platform through which the statement was
communicated, including any distinctive conventions or architectural features;
(3) the manner in which the statement was conveyed (e.g., anonymously or not,
privately or publicly); (4) the relationship between the speaker and recipient(s);
and (5) the subjective reaction of the statement’s intended or foreseeable
recipient(s).
1 We need not resolve today whether the test for true threats under the First
Amendment also requires consideration of the speaker’s subjective intent to
threaten the victim(s). But even assuming it does, the statutory provision at issue
required the State to prove beyond a reasonable doubt that the communication
here was made “in a manner intended to . . . threaten bodily injury.”
§ 18-9-111(1)(e).
3
¶5 Because neither the juvenile court nor the court of appeals had the benefit
of the framework we adopt today, we reverse the judgment of the court of appeals
and remand with instructions to return the case to the juvenile court to reconsider
the adjudication applying this refined test.
4
I. Facts and Procedural History
¶6 In December 2013, a shooting took place at Arapahoe High School that took
the life of a female student and the male student shooter. A few days later, a
student from Thomas Jefferson High School (“TJ”), a school in a neighboring
district, posted on Twitter2 a photo of a banner conveying TJ’s support for
Arapahoe. A student from Littleton High School, which is in the same school
district as Arapahoe, tweeted3 in response that kids from TJ did not care about the
shooting because it happened outside their district. A.C., another TJ student and
a friend of the original poster, soon got involved because he believed the Littleton
student was disrespecting his friend. J.W., A.C.’s friend and fellow TJ student,
also got involved, and the group conversation eventually took on a “TJ versus
Littleton” character. The Littleton student “mentioned”4 the handles, or
2Twitter is a “real-time information network that lets people share and discuss
what is happening at a particular moment in time through the use of ‘tweets.’”
Dimas-Martinez v. State, 385 S.W.3d 238, 243 n.3 (Ark. 2011).
3 A tweet is a message posted to Twitter that might contain text or other media. A
tweet appears on the sender’s profile page and may appear on the feed, or
timeline, of anyone following the sender. About Different Types of Tweets, Twitter,
https://help.twitter.com/en/using-twitter/types-of-tweets [https://perma.cc/
8ZBR-H79E]. The word “tweet” is also used as a verb to describe the act of posting
a message on Twitter. See, e.g., How to Tweet, Twitter, https://help.twitter.com/
en/using-twitter/how-to-tweet [https://perma.cc/9CQ6-3BYE].
4A “mention” is a tweet that contains another account’s Twitter username, or
“handle,” preceded by the “@” symbol. When a user’s handle is mentioned, the
5
usernames, of R.D. and another friend from his school, bringing them into the
exchange.
¶7 As we discuss further below, the record provides an incomplete picture of
the students’ back-and-forth. But it does reveal that R.D. posted the following
messages:
• @[A.C.]5 you a bitch, ill come to Tgay and kill you nigga.6
• @[A.C.] I don’t people who aren’t worth my time. If I see your
bitch ass outside of school you catching a bullet bitch.
• @[A.C.] nigga you don’t even know me. Mf I don’t even know
were tf your lame bitch ass school is. You a bitch talking shit on
here
• @[A.C.] all you fuck niggas will get your ass beat real shit.
• You fuck with the wrong person leave you ass in a body bag.
• @[J.W.] @[A.C.] don’t give af bruh. Don’t even know you niggas
and you talking shit.
• @[A.C.] you think this shit a game, I’m not playing. I don’t fight fuck
boys and I don’t twitter beef.
user receives notification of the tweet, but the tweet does not appear on the user’s
public profile.
5 For purposes of this opinion, we have replaced the students’ Twitter handles with
their initials.
6 We reluctantly reproduce this racial slur and other pejorative terms from the
record to give an uncensored account of the facts.
6
R.D. also posted a photograph of a handgun resting beside approximately fifty
cartridges, along with the message, “@[A.C.] this all I’m saying[.] We don’t want
another incident like Arapahoe. My 9 never on vacation.”
¶8 After this, the record reveals that R.D. and A.C. tweeted as follows:7
• A.C.: @[R.D.] you ain’t never shot no one so sit down and get off google
images bruh
• R.D.: @[J.W.] @[A.C.] idgaf my @ name should have not been in this
shit. You fucked with the wrong one.
• R.D.: @[A.C.] I don’t even know where tf your school at. I’m not even
from Colorado. Trust me I’m not afraid to shoot.
• R.D.: @[A.C.] fuck you and your gay ass school. Don’t worry nigga, I’ll
see you little hoes tomorrow.
• A.C.: @[R.D.] shoot then pussy.
• A.C.: @[R.D.] you are all talk so go the fuck to bed come up to TJ and
get slept.8 Fuck boy.
• R.D.: @[A.C.] haha alright hoe, we’ll see whose a bitch tomorrow.
• R.D.: @[A.C.] I’m not about to fight you broke bitch. Let me catch you
away from school you is a dead man. Goodnight hoe.
• A.C.: @[R.D.] 3950 S. Holly street. I’ll see u tomorrow fuck boy
7 These messages are set out in the order in which R.D. either tweeted or
“retweeted”—i.e., shared—them. It is therefore possible that messages authored
by A.C. and retweeted by R.D. were originally posted by A.C. in a somewhat
different order than represented here.
8 A.C. later testified that “get slept” usually means to fight or get knocked out.
7
¶9 Based on these tweets, the People filed a petition in delinquency charging
R.D. with harassment under section 18-9-111(1)(e), C.R.S. (2013). As relevant here,
that provision prohibits harassment through certain forms of digital
communication:
(1) A person commits harassment if, with intent to harass, annoy,
or alarm another person, he or she . . .
(e) [i]nitiates communication with a person, anonymously or
otherwise, by . . . text message, instant message, computer,
computer network, or computer system in a manner intended to
. . . threaten bodily injury . . . .
§ 18-9-111(1)(e). R.D. moved to dismiss the charge, contending that his statements
were protected by the First Amendment to the U.S. Constitution and article II,
section 10 of the Colorado Constitution.9
¶10 At a hearing on the motion, the prosecutor argued that under Virginia v.
Black, 538 U.S. 343 (2003), and Watts v. United States, 394 U.S. 705 (1969) (per
curiam), the government may constitutionally regulate speech that constitutes a
“true threat.” Speech constitutes a true threat, she contended, “when an
individual is intending to threaten bodily harm.”
9In this initial motion to dismiss, R.D. contended that his statements could not be
constitutionally regulated because (1) they were made in a public forum and
(2) they could not be considered “fighting words.” Because R.D.’s constitutional
claim in this case now focuses on whether R.D.’s tweets constituted “true threats,”
we restrict our description of the facts and procedural history to this claim.
8
¶11 In arguing that R.D.’s tweets fell into this category of unprotected speech,
the prosecutor emphasized “the social context” of the statements, noting they were
sent four days after the Arapahoe High School shooting. She stated that police
officers contacted the students who had read the tweets, all of whom said they
were afraid. She further observed that such fear made sense given that a student
had so recently been shot. Finally, she posited that true threats such as R.D.’s need
to be regulated to “protect people’s feeling of safety.”
¶12 The trial court denied R.D.’s motion to dismiss. In a bench ruling, the court
concluded that R.D.’s “particular type of speech is not protected under the First
Amendment.” The court noted it had “consider[ed] the argument of counsel and
the factors the [c]ourt is to consider,” but did not identify what those factors were.
Based on its conclusion that R.D.’s tweets were not protected speech, the court also
found that section 18-9-111(1)(e) is not unconstitutional as applied to R.D.10
A. Trial
¶13 At trial, A.C.’s and J.W.’s testimony revealed that the screenshots and
printouts submitted in evidence of R.D.’s tweets painted an incomplete picture of
the conversation as it occurred on Twitter. The prosecution’s exhibits consisted of
10R.D. later filed a supplement to his motion to dismiss alleging for the first time
that section 18-9-111(e) is facially overbroad. The juvenile court never ruled on
this supplementary motion.
9
screenshots of some of the messages R.D. authored, but captured almost none of
the other students’ comments. The defense supplemented this one-sided view of
the conversation by introducing a print-out of R.D.’s Twitter profile, which
documented both R.D.’s own tweets and messages by others in the conversation
that R.D. retweeted.11
¶14 Aside from explaining to the adults in the room how Twitter works, A.C.
and J.W. testified to their reactions to the exchange. A.C. testified that he
construed R.D.’s tweets directed at him as threats; that he did not think R.D. was
kidding; and that he understood R.D.’s post containing the picture of a handgun
to convey a threat to his life. Yet on cross-examination, A.C. acknowledged that
he responded to that post by tweeting that R.D. should “get off google images”
because he thought the picture of the handgun was one R.D. had merely
downloaded from the internet. He also admitted that he tweeted the address of
his school.
11 Even this document, however, did not include tweets or private messages by
other users that may have been part of the conversation, but that R.D. did not share
on his public feed. Indeed, many of R.D.’s tweets in the print-out displayed a link
to “view conversation,” which, if clicked in electronic form, would have revealed
other replies in the same exchange. But whatever those other messages said, they
are not part of the record.
10
¶15 J.W.’s testimony was similarly inconsistent. When asked on direct about
R.D.’s “threat to kill,” J.W. testified that he did not take it “as a joke” but that he
also did not “take it serious.” He said the message was “a little intimidating.” He
also testified that students on “both sides” were throwing around insults and
talking about physically fighting and that he “didn’t really take anything as being
very serious.”
¶16 In a bench ruling, the juvenile court adjudicated R.D. delinquent. The court
acknowledged that the early part of the Twitter exchange did not establish an
intent to alarm under the harassment statute “because [the students] were both
engaging in that type of conversation.” The court analogized this early portion of
the exchange to a schoolyard fight where everyone is trying to prove they are
“bigger[,] better[,] and meaner” than their peers.
¶17 But the conversation crossed the line, the court found, when R.D. posted the
picture of the handgun. Referring again to the schoolyard brawl analogy, the court
likened that moment to R.D. lifting his shirt to show that he was armed. The court
reasoned that a brawl and its attendant displays of bravado usually cause “no
harm, no foul” if broken up. But when someone in such a face-to-face interaction
says they have a gun, the dynamic becomes menacing. The court found that R.D.’s
message was similar to such a display, although it acknowledged that the tweet
was “different” because the students were not face-to-face.
11
¶18 Turning to the statute, the court found beyond a reasonable doubt that R.D.
“initiate[d] communication” over a computer network or computer system. It
then considered whether R.D. “inten[ded] to threaten” anyone. The court
observed that J.W. and A.C. testified that they didn’t want to joke about guns, but
that they didn’t take R.D.’s messages seriously, and pointed out that A.C. told R.D.
to “get off google images” and volunteered to him his school’s address. But the
court concluded that the boys’ subjective reactions were irrelevant because the
statute does not require that the recipient actually feel threatened or that actual
bodily injury occur.
¶19 Relying specifically on R.D.’s post of the picture of the handgun, the court
concluded beyond a reasonable doubt that R.D. “initiate[d] communication with
a person by computer network, data network, or computer system in a manner
intended . . . to threaten bodily injury or property damage to [A.C.] and [J.W.], in
violation of [section] 18-9-111(1)(e).” In its ruling, the court made no mention of
the First Amendment and did not opine on the statute’s alleged
unconstitutionality, either facially or as applied to R.D.’s tweets.
¶20 The court sentenced R.D. to write an essay demonstrating that he
understood the challenges of online communication. R.D. submitted the essay to
the court’s satisfaction.
12
B. Appeal
¶21 R.D. appealed, arguing, as relevant here, that his adjudication should be
vacated because application of section 18-9-111(1)(e) to his speech on Twitter
violated his First Amendment right to free speech.12 The People responded that
R.D.’s tweets were true threats and therefore unprotected speech.
¶22 The court of appeals agreed with R.D. and reversed and remanded with
directions to vacate the adjudication and dismiss the proceeding. People in Interest
of R.D., 2016 COA 186, ¶¶ 1, 6, __ P.3d __.
¶23 The court began by acknowledging that the government may regulate
certain unprotected categories of speech, such as true threats. Id. at ¶ 9. The court
defined a “threat” as a “statement of purpose or intent to cause injury or harm to
the person, property, or rights of another, by committing an unlawful act.” Id. at
¶ 10 (citing People v. McIntier, 134 P.3d 467, 472 (Colo. App. 2005)). But a “true
threat” for purposes of the First Amendment, the court explained, “is not merely
talk or jest.” Id. It is evaluated “in the context in which [it was] spoken or written,”
12 R.D. also challenged the sufficiency of the evidence that he “initiate[d]”
communication under 18-9-111(1)(e) and argued that statements he made to his
school’s resource officer and vice principal should have been suppressed. Neither
of these bases for appeal is before us today.
13
and “by whether those who hear or read the threat reasonably consider that an
actual threat has been made.” Id. (quoting McIntier, 134 P.3d at 472).
¶24 To determine whether R.D.’s statements constituted true threats, the court
of appeals considered both the plain import of the words used and the context in
which the statements were made, including (1) to whom the statements were
communicated; (2) the manner in which the statements were communicated; and
(3) the subjective reactions of those whom the statements concerned. Id. (citing
People v. Stanley, 170 P.3d 782, 790 (Colo. App. 2007), and Watts, 394 U.S. at 708).
¶25 Applying that framework, the court concluded that R.D.’s tweets were not
true threats because they did not constitute “a serious expression of an intent to
commit an act of unlawful violence to a particular individual or group of
individuals.” Id. at ¶ 11 (quoting Black, 538 U.S. at 359). The court reasoned that
although the language of R.D.’s tweets was violent and explicit, the context in
which the statements were made mitigated their tone in three ways. Id.
¶26 First, the court observed that R.D.’s tweets made clear that he did not know
A.C. personally and did not know where A.C.’s school was located. Id. at ¶ 12. In
addition, R.D. never referred to A.C. by name, instead addressing him only by his
Twitter handle. Id.
14
¶27 Second, the court observed that while R.D. used “@” to direct many of his
tweets to A.C., he did not send those messages privately to A.C. alone; instead,
they were in public view on R.D.’s profile page. Id. at ¶ 13.
¶28 Finally, the court observed that A.C.’s reactions to R.D.’s tweets showed that
“he did not view the statements as true threats when they were received.” Id. at
¶ 15. In particular, the court found significant that when R.D. indicated he did not
know where TJ was located, A.C. volunteered the address and tweeted, “I’ll see
you tomorrow fuck boy”; “you are all talk so go the fuck to bed come up to TJ and
get slept”; and “shoot then pussy.” Id. at ¶ 14. The court also took note of A.C.’s
response to the photo of the handgun: “you ain’t never shot no one so sit down
and get off google images bruh.” Id. The court gleaned from these tweets that
A.C. did not appear threatened and did not take precautionary measures to protect
himself from R.D. Id.
¶29 Based on these contextual factors, the court concluded that R.D.’s tweets did
not constitute true threats. Id. at ¶ 16. Accordingly, it held that application of
section 18-9-111(1)(e) to R.D.’s conduct violated his First Amendment rights. Id. at
¶ 21. We granted the People’s petition for a writ of certiorari to review whether
the court of appeals erred in determining that R.D.’s online statements are
15
protected by the First Amendment.13 In so doing, we must address the applicable
legal standard, which, as the parties’ briefs acknowledge, has been the subject of
some debate.
II. Analysis
¶30 The government’s power to regulate speech is constrained by the First
Amendment, which provides that “Congress shall make no law . . . abridging the
freedom of speech.” U.S. Const. amend. I; see Gitlow v. New York, 268 U.S. 652, 666
(1925) (incorporating First Amendment against the states).14 In this case, R.D. was
adjudicated delinquent for conduct that, if committed by an adult, would violate
section 18-9-111(1)(e). At the time, that provision stated as follows:
(1) A person commits harassment if, with intent to harass, annoy,
or alarm another person, he or she . . .
(e) [i]nitiates communication with a person, anonymously or
otherwise, by . . . text message, instant message, computer,
13 We granted the People’s petition for a writ of certiorari to review the following
issue:
Whether the court of appeals erred in determining that the
defendant’s comments, made on Twitter, were protected by the First
Amendment.
14As previously noted, R.D. also raised a claim under Colorado’s counterpart to
the First Amendment. See Colo. Const. art. II, § 10. But because he does not argue
that a different analysis applies under the state constitution, we discuss only his
First Amendment claim.
16
computer network, or computer system in a manner intended to
. . . threaten bodily injury . . . .
§ 18-9-111(1)(e).15
¶31 Because this provision regulates pure speech, we must review the
constitutionality of its application to R.D.’s tweets “with the commands of the First
Amendment clearly in mind.” Watts, 394 U.S. at 707.
15 The provision was amended effective July 1, 2015, and now reads as follows:
(1) A person commits harassment if, with intent to harass, annoy, or
alarm another person, he or she . . .
(e) Directly or indirectly initiates communication with a person or
directs language toward another person, anonymously or otherwise,
by telephone, telephone network, data network, text message, instant
message, computer, computer network, computer system, or other
interactive electronic medium in a manner intended to harass or
threaten bodily injury or property damage, or makes any comment,
request, suggestion, or proposal by telephone, computer, computer
network, computer system, or other interactive electronic
medium that is obscene . . . .
§ 18-9-111(1)(e), C.R.S. (2019). The Act amending subsection (1)(e) also added a
new subsection (8), which provides that “[section 18-9-111] is not intended to
infringe upon any right guaranteed to any person by the first amendment to the
United States constitution or to prevent the constitutionally protected expression
of any religious, political, or philosophical views.” § 18-9-111(8). Because R.D.’s
charged conduct predated these alterations to the statutory language, we do not
consider them in our analysis.
17
¶32 The narrow question before us is whether R.D.’s tweets were “true
threats.”16
¶33 To begin, we clarify that the protection of free speech does not vary by
medium of expression and, accordingly, we set forth background First
Amendment principles and true threats jurisprudence to guide our analysis. Next,
we acknowledge that the advent of social media has complicated the constitutional
inquiry. To respond to today’s changed communication landscape, we both refine
our earlier statements of the general framework for distinguishing a true threat
from constitutionally protected speech and offer specific guidance for applying
that test to statements communicated online.
¶34 Having clarified the test for determining whether R.D.’s online statements
constitute true threats, we reverse the judgment of the court of appeals and
remand with instructions to return the case to the juvenile court to reconsider the
adjudication applying the framework we adopt today.
16 Although the parties’ briefs also discuss whether section 18-9-111(1)(e) is facially
overbroad, we decline to address this issue, which neither the juvenile court nor
the court of appeals addressed or ruled upon, and which, in any event, is beyond
the scope of the question on which we granted certiorari review. In other words,
we assume for purposes of this opinion that section 18-9-111(1)(e) proscribes only
conduct that constitutes a true threat, at least insofar as it criminalizes what R.D.
is charged with here. Accordingly, we limit our analysis to whether R.D.’s tweets
constituted true threats.
18
A. The True Threats Exception
¶35 “There are certain well-defined and narrowly limited classes of speech, the
prevention and punishment of which have never been thought to raise any
Constitutional problem.” Chaplinsky v. New Hampshire, 315 U.S. 568, 571–72 (1942).
“[T]hese areas of speech can, consistently with the First Amendment, be regulated
because of their constitutionally proscribable content.” R.A.V. v. City of St. Paul,
505 U.S. 377, 383 (1992). One such category of unprotected speech is a “true
threat.”
1. Watts v. United States
¶36 The true threats doctrine originated in 1969 with Watts v. United States. In
that case, which arose during the Vietnam War, the eighteen-year-old defendant
was convicted under a federal statute forbidding any person from “knowingly and
willfully” making “any threat to take the life of or to inflict bodily harm upon the
President of the United States.” 394 U.S. at 705. Watts had attended a public
anti-war rally on the grounds of the Washington Monument in Washington, D.C.,
where he joined a scheduled discussion group of young people who were mostly
in their teens and early twenties. Id. at 705–06. Watts told the group that he had
been drafted but would not report for his physical, and an Army Counter
Intelligence Corps investigator who was present overheard Watts state, “If they
ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Id. at
19
706. Watts and others in the crowd reacted to this statement with laughter. Id. at
707.
¶37 The Supreme Court held that the statute under which Watts was convicted
was “[c]ertainly . . . constitutional on its face,” given the government’s
overwhelming interest in protecting the safety of the President and allowing him
to perform his duties without interference from threats of physical violence. Id.
But the Court also explained that because the statute “ma[de] criminal a form of
pure speech,” it had to be “interpreted with the commands of the First
Amendment clearly in mind.” Id. In particular, “a threat must be distinguished
from . . . constitutionally protected speech.” Id. The Court concluded that Watts’s
statement, “[t]aken in context,” including its “expressly conditional nature . . . and
the reaction of the listeners,” was mere political hyperbole that could not be
interpreted as a “true ‘threat’” under the statute. Id. at 708.
2. Virginia v. Black
¶38 Thirty-four years later, in Virginia v. Black, the Supreme Court reaffirmed
that the First Amendment permits states to ban “true threats,” which it defined to
“encompass those statements where the speaker means to communicate a serious
expression of an intent to commit an act of unlawful violence to a particular
individual or group of individuals.” 538 U.S. at 359. The Court also clarified that
“[t]he speaker need not actually intend to carry out the threat,” because the true
20
threats exception exists to “protect[] individuals from the fear of violence,” “from
the disruption that fear engenders,” and from “the possibility that the threatened
violence will occur.” Id. at 359–60 (quoting R.A.V., 505 U.S. at 388).
¶39 At issue in Black was the constitutionality of a Virginia statute banning cross
burning done with intent to intimidate a person or group of persons. Id. at 347.
One provision of the statute treated cross burning as prima facie evidence of intent
to intimidate. Id. at 347–48. The Court explained that “[i]ntimidation in the
constitutionally proscribable sense of the word is a type of true threat, where a
speaker directs a threat to a person or group of persons with the intent of placing
the victim in fear of bodily harm or death.” Id. at 360. The Court held that the
statute did “not run afoul of the First Amendment insofar as it ban[ned] cross
burning with intent to intimidate,” id. at 361, but a plurality concluded that the
provision treating cross burning as prima facie evidence of such intent was
overbroad, reasoning that cross burning is sometimes protected expression, see id.
at 364–67 (plurality opinion).
3. The Post-Black Debate
¶40 Though Watts and Black made clear that the First Amendment does not
protect a “true threat,” the decisions resulted in a split of authority over how to
discern whether a particular statement amounts to one.
21
¶41 A majority of jurisdictions have interpreted Black’s definition of a true
threat—a statement where the speaker “means to communicate a serious
expression of an intent to commit an act of unlawful violence”—to require only
that the speaker intended to make the statement. Under this reading, “means to”
modifies only the word “communicate.” See, e.g., United States v. Clemens, 738 F.3d
1, 10 (1st Cir. 2013) (requiring the speaker to intend to make the communication,
but not the threat). Courts adopting this view judge whether a statement
constitutes a true threat using an objective standard, asking how a reasonable
person would interpret the words.17 Proponents of an objective standard have
reasoned that a speaker’s lack of intent to threaten does nothing to reduce the
harms identified in Black that justify the exception of true threats from First
17The objective test has several variations, with some courts asking whether the
statement is one a reasonable speaker would foresee would be interpreted as a
serious expression of intention to inflict bodily harm, see, e.g., State v. Trey M.,
383 P.3d 474, 478 (Wash. 2016), some asking how a reasonable listener would
construe the speech in context, see, e.g., United States v. White, 670 F.3d 498, 507 (4th
Cir. 2012), and some considering both perspectives, see, e.g., Haughwout v. Tordenti,
211 A.3d 1, 9 (Conn. 2019) (requiring that “a reasonable person would foresee that
the statement would be interpreted by those to whom the maker communicates
the statement as a serious expression of intent to harm or assault” and that “a
reasonable listener, familiar with the entire factual context of the defendant’s
statements, would be highly likely to interpret them as communicating a genuine
threat of violence rather than protected expression, however offensive or
repugnant” (quoting State v. Krijger, 97 A.3d 946, 957, 963 (Conn. 2014))).
22
Amendment protection. Black, 538 U.S. at 359; see also, e.g., United States v. Jeffries,
692 F.3d 473, 480 (6th Cir. 2012) (“Much like their cousins libel, obscenity, and
fighting words, true threats ‘by their very utterance inflict injury’ on the recipient.”
(quoting Chaplinsky, 315 U.S. at 572)).
¶42 On the other hand, some courts have interpreted Black to require the speaker
to have the subjective intent to threaten. Under this reading, “means to” modifies
the entire phrase, “communicate a serious expression of an intent to commit an act
of unlawful violence.”18 Proponents of a subjective intent requirement have
tended to posit that a purely objective listener test would chill protected speech.
See Rogers v. United States, 422 U.S. 35, 47–48 (1975) (Marshall, J., concurring)
(arguing that “charging the defendant with responsibility for the effect of his
statements on his listeners . . . would have substantial costs in discouraging the
‘uninhibited, robust, and wide-open’ debate that the First Amendment is intended
18 See, e.g., United States v. Heineman, 767 F.3d 970, 978 (10th Cir. 2014); United
States v. Cassel, 408 F.3d 622, 631–33 (9th Cir. 2005); State v. Boettger, 450 P.3d 805,
813–15 (Kan. 2019); see also Perez v. Florida, 137 S. Ct. 853, 855 (2017) (Sotomayor, J.,
concurring in denial of petition for writ of certiorari) (“Together, Watts and Black
make clear that to sustain a threat conviction without encroaching upon the First
Amendment, States must prove more than the mere utterance of threatening
words—some level of intent is required. . . . These two cases strongly suggest that
it is not enough that a reasonable person might have understood the words as a
threat—a jury must find that the speaker actually intended to convey a threat.”).
23
to protect” (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 270 (1964))); United
States v. White, 670 F.3d 498, 525 (4th Cir. 2012) (Floyd, J., concurring in part and
dissenting in part) (“Under a purely objective test, speakers whose ideas or views
occupy the fringes of our society have more to fear, for their violent and extreme
rhetoric, even if intended simply to convey an idea or express displeasure, is more
likely to strike a reasonable person as threatening.”).19
4. Elonis v. United States
¶43 The U.S. Supreme Court seemed positioned to settle this debate in Elonis v.
United States, 135 S. Ct. 2001 (2015), where the Court had its first opportunity to
apply the true threats doctrine to statements communicated over social media,
specifically, posts the petitioner made on Facebook. There, the petitioner was
convicted under a federal statute that makes it a crime to transmit in interstate
commerce “any communication containing any threat . . . to injure the person of
another.” Id. at 2004 (quoting 18 U.S.C. § 875(c) (2018)). The statute makes no
reference to a required mental state. Id. at 2008. The jury was instructed that to
convict Elonis, it had to find that he intentionally communicated a statement that
19Some have also reasoned that it would be unfair to penalize a speaker for the
unintended consequences of their communication. See Leslie Kendrick, Free Speech
and Guilty Minds, 114 Colum. L. Rev. 1255, 1282 (2014).
24
a reasonable person would foresee would be regarded by the listener as a threat.20
Id. at 2004, 2007. The question before the Court was “whether the statute also
requires that the defendant be aware of the threatening nature of the
communication, and—if not—whether the First Amendment requires such a
showing.” Id. at 2004.
¶44 Ultimately, the Court resolved the case on statutory grounds and did not
consider any First Amendment issues. It concluded that reading in only a
“reasonable person” standard where a federal criminal statute is silent on the
required mental state would be inconsistent with the principle that “wrongdoing
must be conscious to be criminal.” Id. at 2012 (quoting Morissette v. United States,
342 U.S. 246, 252 (1952)). The Court held that a defendant’s purpose or knowledge
would satisfy this requirement but did not address whether recklessness would
also be sufficient. Id. Justices Alito and Thomas each wrote separately, criticizing
the majority’s failure to resolve the split in the circuit courts regarding the requisite
20 Specifically, the jury was instructed that
[a] statement is a true threat when a defendant intentionally makes a
statement in a context or under such circumstances wherein a
reasonable person would foresee that the statement would be
interpreted by those to whom the maker communicates the statement
as a serious expression of an intention to inflict bodily injury or take
the life of an individual.
Elonis, 135 S. Ct. at 2007.
25
level of intent. See id. at 2014 (Alito, J., concurring in part and dissenting in part)
(“Did the jury need to find that Elonis had the purpose of conveying a true threat?
Was it enough if he knew that his words conveyed such a threat? Would
recklessness suffice? The Court declines to say. Attorneys and judges are left to
guess.”); see id. at 2018 (Thomas, J., dissenting) (“[The majority’s] failure to decide
throws everyone from appellate judges to everyday Facebook users into a state of
uncertainty.”). Thus, after Elonis, the proper test for true threats remains an
unsolved doctrinal puzzle.
¶45 A definitive framework for discerning a true threat has been similarly
elusive in Colorado, though our appellate courts have tended to embrace some
form of an objective test. For example, in People v. Baer, 973 P.2d 1225 (Colo. 1999),
this court appeared in passing to endorse a reasonable speaker test, parenthetically
describing a true threat as “one which a reasonable person would foresee would
be interpreted by the recipient as a serious threat to inflict death or bodily injury.”
Id. at 1231. And in an earlier, widely cited special concurrence in People v. Janousek,
871 P.2d 1189 (Colo. 1994), then-Justice Mullarkey described the “critical inquiry”
under true threats jurisprudence as more of a reasonable listener test: “whether
those who hear or read the threat reasonably consider that an actual threat has
been made.” Id. at 1198 (Mullarkey, J., specially concurring); see also R.D., ¶ 10
(reciting Janousek concurrence formulation); Stanley, 170 P.3d at 787 (same);
26
McIntier, 134 P.3d at 472 (same). More recently, the court of appeals division in
Stanley specifically rejected the contention that Black required more than an
objective test. See 170 P.3d at 786–89.
B. Distinguishing True Threats from Protected Speech in
the Age of Social Media
¶46 This court has not had occasion to revisit the framework for assessing
whether a statement is a true threat since the U.S. Supreme Court issued its 2003
decision in Black. And as this case demonstrates, the ways in which technology
has transformed our everyday communication complicates the constitutional
inquiry. We take this opportunity to refine our test for discerning whether a
statement is a true threat, taking into account this altered communication
landscape.
¶47 First, it is foundational that the “‘basic principle[] of freedom of speech,
. . . like the First Amendment’s command, do[es] not vary’ when a new and
different medium for communication appears.” Brown v. Entm’t Merchs. Ass’n,
564 U.S. 786, 790 (2011) (quoting Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 503
(1952)). That said, “[e]very medium of expression presents special First
Amendment problems which must be examined in the light of the circumstances
which are interwoven with the speech in issue.” People v. Weeks, 591 P.2d 91, 95
(Colo. 1979) (citing Joseph Burstyn, Inc., 343 U.S. at 502–03, and Kovacs v. Cooper, 336
U.S. 77, 97 (1949) (Jackson, J., concurring)). In this case, we are alert to the
27
competing concerns that “[s]ocial media make hateful and threatening speech
more common but also magnify the potential for a speaker’s innocent words to be
misunderstood.” Lyrissa Barnett Lidsky & Linda Riedemann Norbut, #I U:
Considering the Context of Online Threats, 106 Calif. L. Rev. 1885, 1885 (2018).
¶48 Words communicated online and without the interpretive aid of body
language are easily misconstrued. Indeed, our reliance on nonverbal cues was
implicit in Chaplinksy, where the U.S. Supreme Court first articulated the “fighting
words” doctrine. There, the Court recognized that “[t]he English language has a
number of words and expressions which by general consent are ‘fighting words’
when said without a disarming smile.” 315 U.S. at 573 (emphasis added) (quoting
State v. Chaplinsky, 18 A.2d 754, 762 (N.H. 1941)). Modern replacements for such
cues, like emojis and gifs, often lack standard meaning and can be difficult to
interpret. Complicating things further, emojis may look different depending on
the sender’s or recipient’s operating system. For one example, an emoji that
resembles a toy squirt gun in a message sent on one platform may appear as a
revolver on a recipient device. Cf. Lidsky & Norbut, supra, at 1908 (explaining that
the gun emoji in the article’s title “looks like a space pistol on some platforms and
like a revolver on others”).
¶49 The chance of meaning being lost in translation is heightened by the
potential for online speech to be read far outside its original context. These days,
28
one needs no more than a whim and a smartphone to broadcast to a massive
audience. A message posted in Denver can reach New York, Tokyo, or Munich in
an instant. Indeed, the term “viral” is apt for the rapidity with which an online
statement can spread. A recipient might retransmit a message to audiences not
foreseeable to the original speaker. A message might be recirculated after an
intervening event that alters its impact. And online speech transmitted in the heat
of the moment—which, if uttered verbally, would not linger beyond the speaker’s
apology—might be archived and subjected to scrutiny years after the fact.
¶50 The risk of mistaking protected speech for a true threat is high. But so are
the stakes of leaving true threats unregulated. With the click of a button or tap of
a screen, a threat made online can inflict fear on a wide audience.
See, e.g., Julie Turkewitz & Jack Healy, ‘Infatuated’ with Columbine:
Threats and Fear, 20 Years After a Massacre, N.Y. Times (Apr. 17, 2019),
https://www.nytimes.com/2019/04/17/us/columbine-shooting-sol-pais.html
(reporting that “millions of parents, students, and educators across Colorado”
awoke on Columbine’s 20th anniversary to news of an individual’s alarming social
media posts and threats to friends and family, and that hundreds of schools across
the state closed in response). Indeed, a single online post can trigger the diversion
of significant law enforcement resources. See, e.g., United States v. Bradbury,
848 F.3d 799, 802 (7th Cir. 2017) (observing that defendant’s Facebook post
29
precipitated an extensive police investigation). Or such a threat may be directed
to a known and vulnerable victim in the privacy of their home. See Elonis,
135 S. Ct. at 2017 (Alito, J., concurring in part and dissenting in part) (“Threats of
violence and intimidation are among the most favored weapons of domestic
abusers, and the rise of social media has only made those tactics more
commonplace.”). Online communication—in particular, the ability to
communicate anonymously—enables unusually disinhibited communication,
magnifying the danger and potentially destructive impact of threatening language
on victims. See Reno v. ACLU, 521 U.S. 844, 889 (1997) (O’Connor, J., concurring)
(“[C]yberspace allows speakers and listeners to mask their identities.”). In short,
technological innovation has provided apparent license and a ready platform to
those wishing to provoke terror.
¶51 Given this changed landscape, we are convinced that the various objective
tests previously articulated by this court and the court of appeals are insufficient
to distinguish “what is a [true] threat . . . from what is constitutionally protected
speech.” Watts, 394 U.S. at 707. Judging a statement from the vantage point of a
“reasonable speaker” or “reasonable listener,” in our view, inadequately accounts
for potentially vast differences in speakers’, listeners’, and disinterested
fact-finders’ frames of reference. We therefore hold that a true threat is a statement
that, considered in context and under the totality of the circumstances, an intended
30
or foreseeable recipient would reasonably perceive as a serious expression of
intent to commit an act of unlawful violence.21 We believe that this refinement of
the objective standard strikes a better balance between giving breathing room to
free expression and protecting against the harms that true threats inflict.
¶52 In determining whether a statement is a true threat, a reviewing court must
examine the words used, but it must also consider the context in which the
statement was made. Particularly where the alleged threat is communicated
online, the contextual factors courts should consider include, but are not limited
to (1) the statement’s role in a broader exchange, if any, including surrounding
events; (2) the medium or platform through which the statement was
communicated, including any distinctive conventions or architectural features;
(3) the manner in which the statement was conveyed (e.g., anonymously or not,
privately or publicly); (4) the relationship between the speaker and recipient(s);
and (5) the subjective reaction of the statement’s intended or foreseeable
recipient(s).
21In the absence of additional guidance from the U.S. Supreme Court, we decline
today to say that a speaker’s subjective intent to threaten is necessary for a
statement to constitute a true threat for First Amendment purposes. But even
assuming that the First Amendment requires proof of such subjective intent, the
statute here required the government to show beyond a reasonable doubt that R.D.
“initiate[d] communication . . . in a manner intended to . . . threaten bodily injury.”
§ 18-9-111(1)(e).
31
¶53 Courts should start, of course, with the words themselves, along with any
accompanying symbols, images, and other similar cues to the words’ meaning.
Cf. United States v. Edwards, No. 2:17-CR-170, 2018 WL 456320, at *2 (S.D. Ohio Jan.
17, 2018) (in witness retaliation case, analyzing Facebook post that called
confidential informant a snitch and included laughing faces and a skull emoji).
This inquiry should include whether the threat contains accurate details tending
to heighten its credibility. See, e.g., Elonis, 135 S. Ct. at 2005–06 (noting the accuracy
of the details in defendant’s Facebook post conveying a threat against his wife,
including a diagram of her house and directions to “fire a mortar launcher . . . from
the cornfield behind it because of easy access to a getaway road” and “a clear line
of sight through the sun room”). It should also examine whether the speaker said
or did anything to undermine the credibility of the threat. See, e.g., Watts, 394 U.S.
at 707–08 (noting that petitioner’s threat to kill the President was made conditional
upon induction into the Armed Forces, an event petitioner vowed would never
occur).
¶54 Importantly, “what a defendant actually said is just the beginning of a
threats analysis.” Haughwout v. Tordenti, 211 A.3d 1, 11 (Conn. 2019). For example,
a veiled statement may carry a true threat. See, e.g., Jeffries, 692 F.3d at 482 (“[O]ne
cannot duck [a threats prosecution] merely by delivering the threat in verse or by
dressing it up with political (and protected) attacks on the legal system.”); Planned
32
Parenthood of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058,
1062–63 (9th Cir. 2002) (en banc) (concluding that, viewed in context,
“Wanted”-style posters listing the names of doctors who had performed abortions
could be true threats); cf. Elonis, 135 S. Ct. at 2015 (Alito, J., concurring in part and
dissenting in part) (“To hold otherwise would grant a license to anyone who is
clever enough to dress up a real threat in the guise of rap lyrics, a parody, or
something similar.”). On the other hand, words that are threatening on their face
may actually be just creative expression, jest, or hyperbole. See, e.g., Jeffries,
692 F.3d at 482 (“[A] song, a poem, a comedy routine or a music video is the kind
of context that may undermine the notion that the threat was real.”); Burge v.
Colton Sch. Dist. 53, 100 F. Supp. 3d 1057, 1060, 1069 (D. Or. 2015) (concluding
eighth grader’s comment on Facebook that a teacher at school “need[ed] to be
shot” was reasonably understood to be merely a critique of the teacher’s skills);
State v. Boettger, 450 P.3d 805, 818 (Kan. 2019) (imagining a police protester
standing near police officers and quoting the lyrics of N.W.A.’s “Fuck tha Police,”
(Straight Outta Compton (Ruthless/Priority 1989)), “[t]ak[e] out a cop or two”).
In short, words matter. But so does context.
¶55 Particularly when evaluating online communication, courts should consider
whether the statement was part of a larger exchange, including surrounding
events. If so, the court should take note of the overall tone of that conversation, as
33
well as the origin of the allegedly threatening language—for example, whether it
was spontaneous or responsive to some other communication. It should also
consider how surrounding events may impact the statement’s tenor. United
States v. Voneida, 337 F. App’x 246, 248 (3d Cir. 2009) (concluding that recency of
Virginia Tech shooting supported finding that student’s posts to his MySpace
page, including that “[s]omeday [he would] make the Virginia Tech incident look
like a trip to an amusement park,” were true threats). But see Watts, 394 U.S. at 711
(Douglas, J., concurring) (noting danger of policing alleged threats “under
circumstances when intolerance for free speech [is] much greater than it normally
might be” (quoting Note, Threatening the President: Protected Dissenter or Political
Assassin, Geo. L. J. 553, 570 (1969))).
¶56 Relatedly, the court should consider the medium or platform used to
communicate the alleged threat. First, the choice of medium itself may be
revealing. See, e.g., United States v. Bagdasarian, 652 F.3d 1113, 1120–21 (9th Cir.
2011) (reasoning that posting violent messages about the President on financial
message board blunts the perception that the statements are true threats). And
evidence regarding prevailing norms in a particular genre or even internet
subforum may also help recast violent language in a less threatening light.
See, e.g., Bell v. Itawamba Cty. Sch. Bd., 774 F.3d 280, 301 (5th Cir. 2014) (noting that
“hyperbolic and violent language is a commonly used narrative device in rap,
34
which functions to convey emotion and meaning—not to make real threats of
violence”). In the context of social media, the court should also consider the
platform’s distinctive architectural features, cf. Unsworth v. Musk,
No. 2:18-CV-08048-SVW-JC, 2019 WL 4543110, at *6–7 (C.D. Cal. May 10, 2019) (in
defamation case, reasoning that Twitter’s 280-character limit rendered dubious the
notion that short-hand supports an inference that text in question was opinion
rather than fact), and conventions, see, e.g., Matter of Welfare of A.J.B., 929 N.W.2d
840, 844 (Minn. 2019) (distinguishing direct messages from mentions on Twitter).
¶57 The manner in which the statement was conveyed may also provide insight.
For example, “a speaker’s anonymity could influence a listener’s perception of
danger.” Bagdasarian, 652 F.3d at 1120–21 (but concluding there was no reason in
that case to think the speaker’s anonymity made it more, rather than less, likely
that a violent post regarding the President was a serious threat). The directness of
the message may also be revealing. See, e.g., Elonis, 135 S. Ct. at 2016 (Alito, J.,
concurring in part and dissenting in part) (“‘Taken in context,’ lyrics in songs that
are performed for an audience or sold in recorded form are unlikely to be
interpreted as a real threat to a real person,” whereas “[s]tatements on social media
that are pointedly directed at their victims . . . are much more likely to be taken
seriously.”); A.J.B., 929 N.W.2d at 865 (Chutich, J., concurring in part and
dissenting in part) (reasoning that accused’s having posted a “tweet storm of 40
35
posts, all of which specifically tagged [the target’s] Twitter handle,” supported a
finding of malicious intent).
¶58 Courts should also consider the speaker’s familiarity with the recipients or
targets of the threat and the nature of the relevant parties’ personal history. For
example, in Elonis, the defendant’s alleged threats included lyrics posted to
Facebook that threatened violence against his wife soon after she left him and took
with her their two children. 135 S. Ct. at 2004. Relatedly, courts should consider
whether a threat’s intended recipient or target is particularly vulnerable, whether
because of personal characteristics or the parties’ relationship. See, e.g., A.J.B.,
929 N.W.2d at 844 (considering “an unrelenting torrent of cruel tweets at . . . an
individual diagnosed with autism and Attention Deficit Hyperactivity Disorder”
encouraging the target to commit suicide).
¶59 Finally, the subjective reaction of a statement’s target or foreseeable
recipients will be an important clue as to whether the message is a true threat.
See, e.g., Watts, 394 U.S. at 708 (reasoning that in part because of listeners’ laughing
response, defendant’s statement could not be interpreted as true threat). This
inquiry need not be limited to the recipient’s immediate reaction. See, e.g., D.J.M. v.
Hannibal Pub. Sch. Dist. No. 60, 647 F.3d 754, 758, 764 (8th Cir. 2011) (teenage
recipient of threats via instant message initially responded “lol”—shorthand for
“laughing out loud”—but was concerned enough to tell trusted adult); Haughwout,
36
211 A.3d at 14 (observing that some students initially “elected to treat [the remarks
at issue] as made in jest,” but that “some of those same students nevertheless were
sufficiently perturbed to contact the university police”).
¶60 That said, courts should be wary of placing significant weight on the
subjective reaction of a statement’s unintended recipients. To do so risks punishing
a speaker for the content of a message that has been decoupled from its context.
This is of heightened concern given the vast temporal, geographic, and cultural
distance current technology permits speech to travel. We are mindful that
someone who stumbles upon a message he perceives as threatening may
experience sincere fear and anxiety. But to construe the true threats exception to
protect every passive internet user from the risk of such harms gives the doctrine
too wide a scope.
¶61 Moreover, a listener’s subjective reaction, without more, should not be
dispositive of whether a statement is a true threat. We acknowledge that the true
threats exception serves to protect individuals from “the fear of violence,” and
“from the disruption that fear engenders.” R.A.V., 505 U.S. at 388. But whether a
particular reader or listener will react with fear to particular words is far too
unpredictable a metric for First Amendment protection. Such a rule would not
give sufficient “breathing space” to the freedom of speech. Cf. Chaplinsky, 315 U.S.
37
at 573 (“The word ‘offensive’ is not to be defined in terms of what a particular
addressee thinks.” (quoting Chaplinsky, 18 A.2d at 762)).
¶62 The factors discussed here are not meant to constitute an exhaustive list.
Depending on the facts and circumstances, other considerations may be relevant
to the overarching goal of examining a statement in all its context to discern
whether it is a true threat or protected expression. Relatedly, the fact-finder has
discretion to weigh each factor in the balance, and to decide whether a particular
factor cuts for or against finding a true threat. Finally, in considering each factor,
courts may find it helpful to admit expert testimony to help illuminate coded
meanings, explain community norms and conventions, or bridge other contextual
gaps.
III. Application
A. Standard of Review
¶63 Whether a particular statement constitutes a true threat is an issue of fact to
be determined by the fact finder in the first instance. People v. Chase, 2013 COA 27,
¶ 70, 411 P.3d 740, 754; State v. Johnston, 127 P.3d 707, 712 (Wash. 2006). But in First
Amendment speech cases, an appellate court must make an independent
examination of the record to assure itself that the judgment does not impermissibly
intrude on the field of free expression. Chase, ¶ 70, 411 P.3d at 754. Thus, whether
38
a statement constitutes a true threat is a matter subject to independent review.
Johnston, 127 P.3d at 712.
B. R.D.’s As-Applied Challenge
¶64 It is unclear from the record what standard the trial court applied in
concluding that R.D.’s “particular type of speech is not protected under the First
Amendment.” The court heard argument from counsel but took no evidence on
that question. Moreover, the trial transcript reveals that the court did not
reconsider R.D.’s constitutional argument at the close of the prosecution’s case or
in the final ruling adjudicating R.D. delinquent. And in judging R.D.’s tweets
against the elements of section 18-9-111(1)(e), the trial court actively disregarded
testimony suggesting that A.C. and J.W. did not take R.D.’s messages seriously,
considering their reaction irrelevant under the statute. As stated above, their
reaction was a relevant factor to consider under the First Amendment.
¶65 Because we have clarified the test to be used when evaluating whether a
statement constitutes a true threat, the trial court is in the best position to review
the record, to take further evidence in its discretion, and to reach a conclusion on
the matter.
IV. Conclusion
¶66 We hold that a true threat is a statement that, considered in context and
under the totality of the circumstances, an intended or foreseeable recipient would
39
reasonably perceive as a serious expression of intent to commit an act of unlawful
violence. In determining whether a statement is a true threat, a reviewing court
must examine the words used, but it must also consider the context in which the
statement was made. Particularly where the alleged threat is communicated
online, the contextual factors courts should consider include, but are not limited
to (1) the statement’s role in a broader exchange, if any, including surrounding
events; (2) the medium or platform through which the statement was
communicated, including any distinctive conventions or architectural features;
(3) the manner in which the statement was conveyed (e.g., anonymously or not,
privately or publicly); (4) the relationship between the speaker and recipient(s);
and (5) the subjective reaction of the statement’s intended or foreseeable
recipient(s).
¶67 We agree with the parties that in this case, the government must also prove
that R.D. had the subjective intent to threaten. We need not decide today whether
the First Amendment requires that showing in every threats prosecution.
¶68 Because neither the juvenile court nor the court of appeals had the benefit
of the framework we adopt today, we reverse the judgment of the court of appeals
and remand with instructions to return the case to the juvenile court to reconsider
the adjudication applying this refined test.
40
41