People ex rel. R.D.
Citation | 468 P.3d 9 |
Decision Date | 29 December 2016 |
Docket Number | Court of Appeals No. 14CA1800 |
Parties | The PEOPLE of the State of Colorado, Petitioner-Appellee, IN the INTEREST OF R.D., Juvenile-Appellant. |
Court | Court of Appeals of Colorado |
Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee
Douglas K. Wilson, Colorado State Public Defender, Elizabeth Porter-Merrill, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant
Opinion by JUDGE HAWTHORNE
¶ 1 R.D., a juvenile, appeals the district court's adjudication of delinquency. We reverse and remand with directions to vacate the adjudication of juvenile delinquency and dismiss the proceeding.
¶ 2 This case arises out of an argument between students from Littleton High School and Thomas Jefferson High School on the social networking website Twitter.1 The argument began after a student from Thomas Jefferson High School posted a Tweet expressing support for Arapahoe High School after a shooting had occurred there. A student from Littleton High School Tweeted that students from Thomas Jefferson High School did not care about the shooting, leading to an argument between students from both schools.
¶ 3 As the argument progressed, R.D., a student at Littleton High School, joined the conversation. R.D. directed multiple Tweets at A.C., a student from Thomas Jefferson High School.2 These Tweets included:
R.D. also Tweeted a picture of a gun with the message
¶ 4 A.C. directed multiple Tweets at R.D. in response. These Tweets included:
¶ 5 The People filed a petition in delinquency charging R.D. with conduct that if committed by an adult would constitute harassment by communication under section 18–9–111(1)(e), C.R.S. 2013.3 At a bench trial, A.C. and another student testified that they believed R.D.'s statements were threats. The district court adjudicated R.D. a juvenile delinquent based on conduct that would constitute harassment if committed by an adult.
¶ 6 R.D. argues that the application of section 18–9–111(1)(e) to his conduct violated his First Amendment right to free speech. The People respond that R.D.'s statements were not protected by the First Amendment because they were true threats and fighting words. We conclude that because R.D.'s statements were neither true threats nor fighting words, the statute as applied violated his right to free speech.
¶ 7 We review the constitutionality of a statute as applied de novo. Hinojos–Mendoza v. People , 169 P.3d 662, 668 (Colo. 2007) ; People v. Stanley , 170 P.3d 782, 787 (Colo. App. 2007). A statute is presumed to be constitutional, and the party challenging the statute has the burden of proving unconstitutionality beyond a reasonable doubt. People v. Janousek , 871 P.2d 1189, 1195 (Colo. 1994). Where a statute is not facially unconstitutional, a challenger must show that the statute is unconstitutional as applied to his or her conduct. People v. Baer , 973 P.2d 1225, 1231 (Colo. 1999).
¶ 8 The First Amendment of the United States Constitution provides that "Congress shall make no law ... abridging the freedom of speech." Colorado's counterpart to the First Amendment, article II, section 10 of the Colorado Constitution, provides that "[n]o law shall be passed impairing the freedom of speech."
¶ 9 While the First Amendment protects the right to free speech, its protection is not absolute. Stanley , 170 P.3d at 786 (citing Virginia v. Black , 538 U.S. 343, 358, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003) ). Some categories of speech, such as true threats and fighting words, are unprotected by the First Amendment and, thus, may be regulated by the government. Id. (citing Black , 538 U.S. at 359, 123 S.Ct. 1536 ); see also People in the Interest of K.W. , 2012 COA 151, ¶ 30, 317 P.3d 1237 (citing Cohen v. California , 403 U.S. 15, 20, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) ). Because R.D. does not assert that he is entitled to greater protection under the Colorado Constitution, we address only the First Amendment.
¶ 10 A threat is a statement of purpose or intent to cause injury or harm to the person, property, or rights of another, by committing an unlawful act. People v. McIntier , 134 P.3d 467, 472 (Colo. App. 2005) (citing People v. Hickman , 988 P.2d 628, 637 (Colo. 1999) ). But the critical inquiry is "whether the statements, viewed in the context in which they were spoken or written, constitute a ‘true threat.’ " Id. (quoting Janousek , 871 P.2d at 1198 (Mullarkey, J., specially concurring)). A true threat is not merely talk or jest, and it is evaluated "by whether those who hear or read the threat reasonably consider that an actual threat has been made." Id. (quoting Janousek , 871 P.2d at 1198 (Mullarkey, J., specially concurring)).
While whether a statement is a true threat is a question of fact to be determined by the fact finder, where First Amendment concerns are implicated, the court has an obligation to make an independent review of the record to assure that the judgment does not impermissibly intrude on the field of free expression.
People v. Chase , 2013 COA 27, ¶ 70, ––– P.3d –––– (citations omitted). In determining this, we first consider the plain import of the words used. Stanley , 170 P.3d at 790 (citing Janousek , 871 P.2d at 1195 ). Then we look to the context in which the statements were made. Id. (citing McIntier , 134 P.3d at 472 ). Among other contextual factors, we may consider (1) to whom the statement is communicated; (2) the manner in which the statement is communicated; and (3) the subjective reaction of the person whom the statement concerns. Id. (citing Watts v. United States , 394 U.S. 705, 708, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969) ).
¶ 11 After independently reviewing the record, we conclude that R.D.'s Tweets did not constitute true threats because they were not "a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." Id. at 786 (quoting Black , 538 U.S. at 359, 123 S.Ct. 1536 ). While 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. (citing McIntier , 134 P.3d at 472 ).
¶ 12 The first contextual factor we consider is to whom the statements were communicated. R.D. Tweeted This Tweet showed that he did not know A.C. personally and did not know where Thomas Jefferson High School was located. See Chase , ¶ 73 ( ). And, R.D. never referred to A.C. by name. He addressed him only by his Twitter username of "iTweetYouShutUp." See id. ( ).
¶ 13 Next we consider the manner in which the statements were communicated. R.D. posted his messages to Twitter, a public forum. While he did use "@" to direct his messages toward A.C., the messages could be viewed on R.D.'s Twitter homepage and were not sent to A.C. in a private message. So, Tweets can be differentiated from e-mails and other social media messages, which are sent directly—and usually privately—to a person or specified group of people. See id. at ¶ 74 ( ).
¶ 14 Finally, we consider the subjective reaction of the person whom the statements concern. When R.D. indicated that he did not know where Thomas Jefferson High School was located, A.C. responded by Tweeting the school's address: A.C. subsequently Tweeted "you are all talk so go the fuck to bed come up to TJ and get slept" and "shoot then pussy." And, when R.D. Tweeted a picture of a gun, A.C. responded "you ain't never shot no one so sit down and get off google images bruh." A.C.'s Tweets demonstrate that he did not appear threatened by R.D.'s Tweets and that he did not take precautionary measures to protect himself from R.D. See id. at ¶ 73 ( ).
¶ 15 While A.C. later testified that he believed R.D.'s Tweets were threats against him, the critical inquiry in true threat analysis is "whether the statements, viewed in the context in which they were spoken or written, constitute a ‘true threat.’ " McIntier , 134 P.3d at 472 (quoting Janousek , 871 P.2d at 1198 (Mullarkey, J., specially concurring)). A.C.'s reaction to R.D.'s Tweets shows that he did not view the statements as true threats when they were received.
¶ 16 In sum, based on the context in which R.D.'s statements were made, we conclude that the Tweets did not constitute true threats.
¶ 17 Fighting words are "personal abusive epithets that when directed to the ordinary citizen are inherently likely to provoke a violent reaction." K.W. , ¶ 30 (citing Cohen , 403 U.S. at 20, 91 S.Ct. 1780 ). In determining whether a statement constitutes fighting words, again we must consider "[t]he context or circumstances in which the language is used." Id. (citing FCC v....
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