The Colorado Supreme Court further defined the limits of free speech in social media in an opinion released June 1.
The majority opinion, penned by Justice Monica Márquez, overturned a Court of Appeals opinion, stating that threats made via Twitter can rise to the level of a “true threat” and defining a new test for determining when that happens.
“The First Amendment’s protection of speech is robust, but not absolute: it does not, for example, safeguard the utterance of a ‘true threat,’” Márquez wrote in the opening of the Supreme Court opinion. “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.”
The case “requires us to confront this changed communication landscape and refine the applicable framework for distinguishing a true threat from constitutionally protected speech where that occurs in the cyber arena,” the opinion states.
The case, In the Interest of R.D., dealt with two high school students who entered into an argument over Twitter involving a gun several days after the 2013 Arapahoe High School shooting.
Days after the incident, a student from Thomas Jefferson High School posted a photo of a banner conveying the school’s support for Arapahoe on Twitter. A student from Littleton High School, in the same district as Arapahoe, tweeted in response that kids from the other school district did not care about the shooting since “it happened outside their district,” according to the opinion.
A friend of the original poster got involved because he believed the Littleton student was disrespecting the friend who posted the picture, and as others joined the conversation, it took on a Thomas Jefferson-versus-Littleton character, according to the court documents.
The Littleton student mentioned several users, including R.D., adding them to the exchange. R.D. posted messages using vulgar language and the term “kill you.” The exchange also included racial slurs, discussion of catching bullets, leaving in a body bag and discussion over whether some members of the exchange thought it was a game.
R.D. posted a photograph of a handgun alongside approximately 50 cartridges with the text, [sic], “this all I’m saying[.] We don’t want another incident like Arapahoe. My 9 never on vacation.” According to the opinion, an address was also provided by another user, stating they would see R.D. tomorrow.
Because of these tweets, prosecutors filed a petition in delinquency charging R.D. with harassment. R.D. moved to dismiss the charge and contended the statements were protected by the First Amendment and section 10 of the Colorado Constitution.
At a hearing on the motion, a prosecutor argued that the government may constitutionally regulate speech that constitutes a “true threat,” according to the opinion and that the speech becomes a true threat “when an individual is intending to threaten bodily harm.”
In the case’s passage through the court system, judges have disagreed about whether the fact that the threats were made over electronic communication affects the situation.
R.D. was adjudicated delinquent in a bench ruling. The court found the conversation crossed the line when the student posted the picture of the gun. In its reasoning, the court thought that when a brawl occurs, if broken up it results in “no harm, no foul.” “But when someone in such a face-to-face interaction says they have a gun, the dynamic becomes menacing,” the trial judge said in the ruling. The court found R.D.’s message similar, but noted the tweet was “different” because the students were not face-to-face.
The Colorado Court of Appeals, however, considered the plain import of the words and the context in which the statements were made, including who the statements were communicated to, the manner in which they were communicated and the subjective reactions of those who the statements concerned.
“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,’” the Court of Appeals found, as quoted by the Supreme Court opinion. 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.
In this case R.D. was adjudicated for conduct, if done by an adult, would violate Section 18-9-111(1)(e) of the Colorado Revised Statutes. At the time, the provision stated that a person commits harassment if, with intent to harass, annoy or alarm another person, he or she initiates communication with a person, anonymously or otherwise by text, instant message, computer, computer network or computer system in a manner intended to threaten bodily injury, according to the opinion.
“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,’” the opinion states.
When determining if a statement is a true threat, a court must examine the words used and consider the context in which the statement was made, according to the opinion. In particular, where the alleged threat is communicated online.
According to the Supreme Court, the contextual factors should include, but aren’t limited, to the statement’s role in the broader exchange and any surrounding events; the medium through which the statement is communicated; the manor which the statement was given, “privately or publicly, anonymously or not;” the relationship between speaker and recipient(s) and the subjective reaction of the statement’s intended or foreseeable recipients.
The Supreme Court found it significant for the social context that the statements were made only four days after the school shooting. Further, the opinion stated police officers had contacted students who read the tweets, and “all” said they were afraid. The prosecutor “further observed that such fear made sense given that a student had so recently been shot.”
The court found that protection of free speech “does not vary by medium of expression,” the opinion states. “… 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.”
The judgement was then reversed, after having clarified the test for determining whether the statements constituted true threats, “and remand with instructions to return the case to the juvenile court to reconsider the adjudication applying the framework we adopt today,” the opinion states.
— Avery Martinez