People v. Of

Citation464 P.3d 717
Decision Date01 June 2020
Docket NumberSupreme Court Case No. 17SC116
Parties The PEOPLE of the State of Colorado, Petitioner, IN the INTEREST OF Respondent: R.D.
CourtSupreme Court of Colorado

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

En Banc

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.

¶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).

¶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.

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 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.

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

¶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, 123 S.Ct. 1536, 155 L.Ed.2d 535 (2003), and Watts v. United States , 394 U.S. 705, 89 S.Ct. 1399, 22 L.Ed.2d 664 (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."

¶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 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.

¶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....

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