What is a “True Threat” Online?–In re. R.D.

This case involves a Twitter war of words between high schoolers shortly after a local school shooting. Some tweets may have been quoted song lyrics, others were typical nonsense teen bluster, and some may have been legally prosecutable threats. The district court held that a conversant was guilty of juvenile delinquency for making threats. The appeals court reversed the conviction. The Colorado Supreme Court, on appeal, articulates a new legal standard for “true threats” that are not protected by the First Amendment. On that basis, it remands the case so the lower courts can look at the case afresh using these new standards.

The court’s legal standard:

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. 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)…

The factors discussed here are not meant to constitute an exhaustive list. Depending on the facts and circumstances, other considerations may be relevant to the overarching goal of examining a statement in all its context to discern whether it is a true threat or protected expression. Relatedly, 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. Finally, in considering each factor, courts may find it helpful to admit expert testimony to help illuminate coded meanings, explain community norms and conventions, or bridge other contextual gaps.

In the explanation, the court gives examples of how each factor can cut either way. In future litigation, these examples give both sides plenty to play with.

In a footnote, the court sidesteps whether the First Amendment requires consideration of the speaker’s subjective intent, because the applicable Colorado statute requires it. With respect to the fifth factor, the court says that the recipient’s subjective viewpoints shouldn’t be dispositve and cautions against overweighting the subjective viewpoints of unintended message recipients “given the vast temporal, geographic, and cultural distance current technology permits speech to travel.”

Overall, this is the kind of legal standard that only appellate courts love. It’s a multi-factor test based on the totality of the circumstances. While the First Amendment requires courts to engage in complex considerations, the court’s approach ensures high adjudication costs–litigants can fight over each of the 5 enumerated favors and more–and reduces outcome predictability. Appellate courts may be OK with that jurisprudential chaos, but lower courts aren’t going to be thrilled about the inevitable and messy food fights.

Though both plaintiffs and defendants will have plenty to argue about, I fear the court’s test will cause other courts to find true threats more frequently than they have in the past. The opinion highlights various negative aspects of Internet exceptionalism:

Words communicated online and without the interpretive aid of body language are easily misconstrued….The chance of meaning being lost in translation is heightened by the potential for online speech to be read far outside its original context….A recipient might retransmit a message to audiences not foreseeable to the original speaker. A message might be recirculated after an intervening event that alters its impact. And online speech transmitted in the heat of the moment—which, if uttered verbally, would not linger beyond the speaker’s apology—might be archived and subjected to scrutiny years after the fact.

These are all true statements, but there are many countervailing considerations about why online speech can be less threatening than offline speech that the court should have equally showcased. Most obviously, with online speech, the speaker and recipient usually aren’t in the same physical space during the conversation, reducing the risk of actual punches being thrown immediately; and both the speaker and listener have easy means of retreating from the (online) confrontation that might be less risky than retreat in physical space. The fact that online speech can strip out facial expressions and body language can also reduce tensions–there may be no menacing facial expressions or vocal inflection to add risk to the words. While the court’s multi-factor test should allow these arguments to be made, the court’s framing of the issue unnecessarily skewed towards the Internet’s negative aspects.

For that reason, the court’s opinion implies that other courts should interpret online words more harshly:

With the click of a button or tap of a screen, a threat made online can inflict fear on a wide audience. Indeed, a single online post can trigger the diversion of significant law enforcement resources….Online communication—in particular, the ability to communicate anonymously—enables unusually disinhibited communication, magnifying the danger and potentially destructive impact of threatening language on victims. In short, technological innovation has provided apparent license and a ready platform to those wishing to provoke terror. (emphasis added)

Again, all of this is true (except for the statement that the Internet provides apparent license to provoke terror–really?), but there are so many countervailing benefits that deserved equal voice. Instead, the opinion takes a glass-half-empty approach without acknowledging the half-full part of the glass. Future courts are likely to notice this skew.

As part of its Internet exceptionalism discussion, the court discusses emojis as one challenge of interpreting non-textual communications online:

Modern replacements for such cues, like emojis and gifs, often lack standard meaning and can be difficult to interpret. Complicating things further, emojis may look different depending on the sender’s or recipient’s operating system. For one example, an emoji that resembles a toy squirt gun in a message sent on one platform may appear as a revolver on a recipient device.

It’s great to see the court acknowledge what I’ve called cross-platform depiction diversity, sometimes called “fragmentation.” The revolver example is a little dated because most platforms have switched to the squirt gun depiction, but the underlying problem remains real. Remember, as court evidence, emoji depictions should always come in pairs (or more)–what the speaker actually saw and what the recipient actually saw. It’s possible, and sometimes probable, that the depictions are not the same.

Case citation: In the Interest of Respondent R.D., 2020 CO 44 (Colo. Sup. Ct. June 1, 2020)