Tweeting Death Threats Isn’t Juvenile Delinquency–In re R.D.

Teens and Twitter–what could go wrong? A tweetstorm broke out among Colorado high schoolers related to the Arapahoe High School shooting. R.D. joined the fray, tweeting A.C. (at his Twitter alias @iTweetYouShutUp) messages including:

• “[i]f I see your bitch ass outside of school you catching a bullet bitch”;
• “you a bitch, ill come to Tgay and kill you nigga”;
• “all you fuck niggas will get your ass beat real shit”; and
• “you think this shit a game, I’m not playing.”
• “this all I’m saying. We don’t want another incident like Arapahoe. My 9 never on vacation” with a photo of a gun. [Note: “9 never on vacation” may be quoting Kendrick Lamar’s “Backseat Freestyle” (NSFW IMO). Ordinarily I’d hope you’d be dazzled by my encyclopedic knowledge of hip-hop, but truthfully I learned about this lyrical association only because of a Google search.]

R.D.’s “9” may not take a vacation, but R.D. probably needs a vacation from Twitter.

A.C. poured fuel on R.D.’s fire by tweeting:

• “I’ll see u tomorrow fuck boy”;
• “you are all talk so go the fuck to bed come up to TJ and get slept”; [note: taking a nap actually sounds refreshing, at least to me, but Urban Dictionary tells me “get slept” means “to be knocked out”]
• “shoot then pussy”; and
• “you ain’t never shot no one so sit down and get off google images bruh.”

The state prosecuted R.D. for juvenile delinquency based on the tweets, and A.C. and a second student testified at trial that they believed R.D.’s tweets were threats. The lower court adjudged R.D. a juvenile delinquent. The appellate court reversed because R.D.’s tweets weren’t true threats or fighting words.

True Threats. The court says R.D.’s tweets were “violent and explicit” but not threatening in context because:

* R.D. didn’t refer to A.C.’s name, only his Twitter alias
* R.D. sent public tweets (what we might call “@ replies”) instead of private messages, and “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”
* “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.”

The first two points seem dubious. If R.D. only knew A.C.’s Twitter alias and high school location, R.D. may not have been able to locate A.C. in person, in which case any threats would be vacuous and abstract. But if R.D. could actually locate A.C., the fact R.D. communicated the threats via public “@ reply” tweets instead of email or another private medium should be irrelevant. Furthermore, R.D. even declared that “you think this shit a game, I’m not playing,” though that could reinforce the blustering nature of the exchange (doth protest too much, etc.). I think the court’s third point is the strongest, especially because A.C.’s putdown “get off google images bruh” effectively denigrated R.D.’s posturing.

Fighting Words. The court says “Fighting words, by their definition, can occur only when the speaker is in close physical proximity to the recipient,” which implies that tweets can almost never be fighting words. See also the uncited cases State v. Smith and State v. Drahota.

The court doesn’t explicitly acknowledge the context of talk among teens, but this aspect seemingly looms large. Teens can make rash decisions, but they are also generate avoidable drama and rhetorical hyperbole, both of which seemed to be present here. Had this exchange taken place between adults, the court may not have been as forgiving.

This ruling provides a nice contrast to the epic saga of DC v. RR, a decade-long lawsuit over one classmate’s death threats left on another classmate’s website guestbook. Although they were completely out-of-bounds and socially unacceptable, it was also virtually impossible to interpret RR’s “threats” as serious in context, yet that lawsuit went on and on…and on… Here, the court says there are no criminal consequences for tweeting “ill come to Tgay and kill you nigga.” Perhaps the results would be different if A.C. brought a civil lawsuit; or perhaps this ruling moves us closer to allowing teens to do and say stupid and ill-advised things online without imposing adult-level consequences on those juvenile indiscretions.

In the Interest of R.D., 2016 WL 7473807 (Colo. Ct. App. Dec. 29, 2016)

On a personal note: Happy new year! I hope 2017 is a better year than 2016!