by Douglas Ankney

The Supreme Court of Colorado announced the framework for distinguishing a true threat from constitutionally protected speech.

A few days after a shooting at Arapahoe High School, students from Littleton High School (“LHS”) got into an argument on Twitter with students from Thomas Jefferson High School (“TJHS”).

R.D., an LHS student, posted messages to J.W. and A.C., stating he would come to TJHS and kill A.C. and referred to A.C. as a “bitch” who would be “catching a bullet.” Along with his statements, R.D. posted a photograph of a handgun lying beside approximately 50 cartridges of ammunition.

Based on these tweets, the People filed a petition in delinquency charging R.D. with harassment under Colorado Revised Statute (“C.R.S.”) § 18-9-111(1)(e) (2013). R.D. moved to dismiss the charge on the ground that his statements were protected by the First Amendment of the U.S. Constitution and article II, § 10 of the Colorado Constitution.

The trial court denied R.D.’s motion to dismiss, finding that the tweets were a “type of speech not protected under the First Amendment.” At the ensuing bench trial, the juvenile court adjudicated R.D. delinquent in violation of § 18-9-111(1)(e). R.D. appealed, arguing that application of the statute to his speech on Twitter violated the First Amendment. The court of appeals agreed with R.D. and reversed. The Colorado Supreme Court granted the People’s petition for certiorari.

The Court observed that the First Amendment prohibits Congress from passing laws that abridge freedom of speech. However, there are well-defined, narrowly limited categories of unprotected speech that may be regulated and punished without offending the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). One such category is a “true threat.” Watts v. United States, 394 U.S. 705 (1969). The U.S. Supreme Court defined “true threat” as “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.” Virginia v. Black, 538 U.S. 343 (2003).

States may regulate speech that constitutes a true threat without violating the First Amendment. Id. But there was a split among the U.S. Circuit Courts of Appeals as to interpretation of the definition, with some holding that a true threat requires only proof that the person intended to make the statement that a reasonable person would interpret as a threat, but other jurisdictions interpreted it to mean that the person must have intended to communicate a threat. Compare United States v. Clemens, 738 F.3d 1 (1st Cir. 2013), with United States v. Heineman, 767 F.3d 970 (10th Cir. 2014).

The Colorado Supreme Court sought to strike a balance between the two interpretations. To begin with, First Amendment problems must be examined in light of the circumstances. People v. Weeks, 591 P.2d 91 (Colo. 1979). Because words communicated online do not have the interpretive aid of body language and can travel around the globe where the words can have differing meanings, the Court held 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.”

The Court provided the following guidance: When the alleged threat is communicated online, courts should consider (1) the statement’s role in a broader exchange, (2) the medium or platform through which the statement was communicated and any distinctive features thereof, (3) whether the statement was made publicly, privately, anonymously, etc., (4) the relationship between the parties, and (5) the subjective reaction of the recipients. The Court explained that the foregoing factors “are not meant to constitute an exhaustive list.” Additionally, “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,” the Court instructed.

Courts should start with the words of the statement, along with any accompanying images or other cues to the words’ meaning as well as any specific, accurate details to heighten the threat’s credibility. Elonis v. United States, 135 S. Ct. 2001 (2015). But courts should also consider anything said or done to undermine the threat’s credibility. Watts. The Colorado Supreme Court cautioned that, while the recipients’ subjective reactions should be considered, it should not be dispositive because how a particular individual reacts to particular words would not give sufficient “breathing space” for freedom of speech. Chaplinsky.

The Court agreed with the parties that the People must “prove that R.D. had the subjective intent to threaten.”  However, it cautioned, “We need not decide today whether the First Amendment requires that showing in every threats prosecution.”

Accordingly, since the courts below did not have the benefit of the newly announced framework, the Court reversed the judgment of the court of appeals and remanded with instructions to return the case to juvenile court to “reconsider the adjudication applying this refined test.” See: People ex rel. R.D., 464 P.3d 717 (Colo. 2020).

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