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People in Interest of R.D.

2020 CO 44. No. 17SC116. First Amendment—True Threats— Social Media.

June 1, 2020

The Supreme Court reviewed whether the Court of Appeals erred in determining that threatening messages the juvenile defendant posted on Twitter were protected speech under the First Amendment. In so doing, the Court refined its earlier statements of the general framework for distinguishing a true threat from constitutionally protected speech and offered specific guidance for applying that test to statements communicated online.

The Court held 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 Court of Appeals’ judgment was reversed and the case was remanded with instructions to return the case to the juvenile court to reconsider the adjudication under the refined framework.

Official Colorado Supreme Court proceedings can be found at the Colorado Supreme Court website.

Related Topics

First Amendment, True Threats, Social Media.

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