Colorado Gives Guidance for When a Tweet Is Threat

The Colorado Supreme Court. (Courthouse News photo/Chris Marshall)

DENVER (CN) — The Colorado Supreme Court on Monday remanded the question of whether a high school student’s 2013 online post of a gun, with comments, constituted a threat or free speech.

After the shooting of 17-year-old Claire Davis at Arapahoe High School in 2013, a few Colorado students from different schools got into a heated argument on Twitter.

One Littleton High School Student, R.D., who was a minor at the time, posted: “If I see your bitch ass outside of school you catching a bullet bitch.” As the conversation escalated, R.D. posted a picture of a handgun and wrote, “we don’t want another incident like Arapahoe. My 9 never on vacation.”

One student retorted that R.D. should “get off Google Images”; another told an adult who called the police.

The trial court perceived the photo of the gun as a clear threat akin to showing a gun in a street fight. R.D. was sentenced to write “an essay demonstrating that he understood the challenges of online communication.” He completed the essay and appealed.

In 2017, the Court of Appeals found the statements “neither true threats nor fighting words” and reversed.

Last year, the state asked the court to review “whether the court of appeals erred in determining that the defendant’s comments, made on Twitter, were protected by the First Amendment.”

Instead, the Colorado Supreme Court found “the proper test for true threats remains an unsolved doctrinal puzzle.” The court refined the framework for determining whether an online statement is a threat, then remanded to the juvenile court for reconsideration.

“The court holds 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,” Associate Justice Monica Marquez wrote in the 38-page opinion.

To put an online statement into context, a court must consider recent events, the larger conversation, the platform, whether the message was public or private, the relationships between the speakers, and how it was taken by its intended recipient.

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