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The Colorado Supreme Court on Monday established a five-part test for determining whether a communication is protected speech under the First Amendment or a threat, stemming from a bellicose exchange between teenagers on Twitter.

“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,” wrote Justice Monica M. Márquez for the court.

The determination of a threat will now depend upon the context of a communication, including outside events happening before or while the statement is delivered. The medium, the private or public nature of the statement, and the relationship between the correspondents are also key factors, as is the recipient’s response to the alleged threat.

The case arose after a 2013 shooting at Arapahoe High School, which resulted in the deaths of one victim and the gunman. A student at Thomas Jefferson High School in Denver tweeted a graphic in solidarity, to which another student at Littleton High School responded, casting doubt on the original author’s sincerity. Before long, other students of both schools began tweeting at each other. 

One Littleton student, R.D., targeted Thomas Jefferson student A.C. with several incendiary and threatening messages.

“[Y]ou a bitch, ill come to Tgay and kill you nigga,” R.D. wrote. “You f—k with the wrong person leave you (sic) ass in a body bag.”

R.D. also tweeted a picture of a handgun, warning A.C., “We don’t want another incident like Arapahoe. My 9 never on vacation.”

The exchange continued with both juveniles ramping up the threat. R.D. warned that he would come to Thomas Jefferson the next day, and A.C. countered that he should “come up to TJ and "get slept,” meaning to get beaten up. R.D. said that A.C. was a “dead man,” and A.C. replied by tweeting the address of the school.

Prosecutors brought charges against R.D., alleging that he was threatening bodily injury and that due to the recent shooting, the context of the tweets indicated a real danger. R.D. countered that his statements were free speech that the state and federal constitutions protected. 

At trial, the court found that the First Amendment did not protect R.D.’s belligerent tweets. A.C. testified that he did not feel threatened — and in fact tweeted at R.D. to “get off google images,” an admission that he felt the handgun photo was not R.D.’s own. Nevertheless, the court concluded that the recipient of the image did not actually have to feel threatened for the speech to be threatening. 

On appeal, the Colorado Court of Appeals sided with R.D., saying that a threat “is not merely talk or jest," but that what makes it threatening is “the context in which [it was] spoken or written.” The appellate court concluded that the reaction of the recipient should play into the threat assessment, and for that reason R.D.’s tweets did not fall into that category.

The legal establishment of a “true threat” occurred in the 1969 U.S. Supreme Court case of Watts v. United States. The defendant was prosecuted for jokingly threatening to kill the president, but the court found that the statement was not truly an indication the president’s life was in danger and was protected speech.

Márquez noted that since then, there have been competing schools of thought about whether to adjudicate threats based on how a reasonable person would interpret the statement, or to instead look at the intent of the person communicating the alleged threat.

A 2015 case, Elonis v. United States, in which a man threatened his ex-wife and a federal agent on Facebook, resulted in a determination from the U.S. Supreme Court that under federal anti-threat law, a defendant has to show intent to cause harm. However, the justices did not rule more broadly on threatening speech under the First Amendment, nor did they decide what level of awareness a defendant needed to demonstrate for his words to be deemed threatening.

“The risk of mistaking protected speech for a true threat is high. But so are the stakes of leaving true threats unregulated,” Márquez wrote. Given that online speech has changed the nature of threats, the court was moved to establish new guidance for delineating non-protected speech. Context will now be key, even going so far as to include “prevailing norms in a particular genre or even internet subforum.”

Márquez concluded the court’s opinion by warning that the five-factor test was not meant to limit threat determinations, but the justices did intend to narrow assessments of threats to generally exclude third parties who happen to see an exchange.

“We are mindful that someone who stumbles upon a message he perceives as threatening may experience sincere fear and anxiety,” she wrote, but to “protect every passive internet user” is not the goal of the test.

Because the state Supreme Court was unclear what standard the trial court applied in R.D.’s case, the justices returned the matter to the lower court with instructions to apply the five-part test and to also instruct prosecutors to prove that R.D. had the intent to threaten.

The case is People in Interest of R.D.

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