Monday, February 29, 2016

The Tweets, the “Microblog” and True Threats

This post examines an opinion from the Court of Appeals ofWashington (Division 1):  State v. Kohonen, 2016 WL 492651 (2016). The court began by explaining that
J.K. was adjudicated guilty, in juvenile court, of cyberstalking based on two tweets that she sent from her personal Twitter account. She now appeals, contending both that insufficient evidence was adduced to establish that she acted with the intent to `harass, intimidate, torment, or embarrass’ another person and that insufficient evidence was presented that her tweets constituted `true threats.’

Because we agree that insufficient evidence was presented that J.K.'s tweets constituted a true threat, we reverse the conviction and remand for the cause to be dismissed with prejudice.
State v. Kohonen, supra.
The court went on to explain that the
brief filed on behalf of J.K. in her appeal outlines the facts that led to her being charged with cyberstalking (from her perspective):

When J.K. was in eighth grade, a classmate, S.G., informed a teacher that a student (not J.K.) was behaving oddly. . . . As a result, J.K. and the other student were suspended from school. . . . The two girls have had no other interaction with each other until this incident. . . .

Two years later, J.K. and S.G. were in the same class as sophomores in high school. . . . One day in November 2013, J.K. saw S.G. in class and was reminded of the incident two years before. . . . She quickly posted two short messages known as tweets via the website Twitter. The first read, `Tbh still want to punch you in the throat even tho it was 2 years ago.’ The second read, `[S.G.]mustdie.’ . . .  

J.K. explained that she posts tweets frequently and uses the site almost like a journal, posting her thoughts, reactions, sometimes jokes. . . . She testified she sent the messages quickly and without thinking, as a fleeting expression of her agitation at the memory. . . . Although she is aware the posts are public, and she has around 100 people who follow her, she testified she did not consider the potential impact on S.G. . . .
For nearly a full day after these tweets, there was no reaction. None of J.K.'s Twitter followers mentioned them to her or responded to them in any way. . . . S.G. was unaware of the tweets. The next day, however, another student, I.R., who follows J.K. on Twitter noticed the tweets and showed them to S.G. . . .

I.R. explained that, on the Twitter website, a person can search for J.K.'s page and see anything she has posted that is not specifically blocked. . . .The only reason she became aware of J.K.'s tweets was that she follows J.K. on Twitter, which means that anything J.K. posts automatically appears on I.R.'s Twitter page. . . .

S.G. testified she felt angry and embarrassed because she knew others would see the tweets. . . . She was not frightened; she did not really think J.K. would hurt her. . . . She showed the tweets to the dean of students, who, after consulting with other administrators, called the police. . . .

J.K. immediately admitted she had posted the tweets and explained she never intended to harm S.G. . . . Well before she learned of any criminal charges, she also wrote a letter apologizing to S.G. for the upset that she caused by her thoughtless conduct. . . .
Brief of Appellant, State v. J.K., 2015 WL 5432030 (Washington Court of Appeals – Division 1).
The opinion goes on to explain that J.K. was
taken from class to the administration office, where Lockhart and Brown confronted her with the tweets. J.K. immediately admitted that she had written and posted the tweets but stated that she had not intended for her actions to harm S.G. . . .

J.K. was charged with one count of cyberstalking. After trial, the commissioner adjudicated J.K. guilty as charged, finding J.K. had acted with the intent to embarrass, harass, and torment S.G. and that she was not credible on the question of whether she had considered the effect the tweets could have before posting them. The court also concluded that the tweets constituted a true threat. J.K. was sentenced to six months of probation and 30 hours of community service.
State v. Kohonen, supra.  Nicole Lockhart was the Dean of Students at J.K.’s school and George Brown was an officer with the Bellingham Police Department.  State v. Kohonen, supra.  
As noted above, J.K. appealed the conviction and sentence.  The Court of Appeals began its analysis of J.K.’s argument on appeal by explaining that
J.K. contends that insufficient evidence was presented that the tweets in question constituted `true threats,’ as required by the federal and state constitutions. This is so, she asserts, because a reasonable person in her position would not have foreseen that the tweets would be interpreted as serious threats to inflict harm. We agree.
State v. Kohonen, supra.
The Court of Appeals began its analysis of the issue in the case by explaining that
[t]he due process clauses of the federal and state constitutions require that the government prove every element of a crime beyond a reasonable doubt. Apprendi v. New Jersey, 530U.S. 466 (2000); U.S. Const. amend. XIV; WASH. CONST. art. I, § 3. `[T]he critical inquiry on review of the sufficiency of the evidence to support a criminal conviction must be . . . to determine whether the record evidence could reasonably support a finding of guilt beyond a reasonable doubt.’ Jacksonv. Virginia, 443 U.S. 307 (1979). `[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ Jackson v. Virginia, supra.

`The purpose of this standard of review is to ensure that the trial court fact finder “rationally appl[ied]” the constitutional standard required by the due process clause of the Fourteenth Amendment, which allows for conviction of a criminal offense only upon proof beyond a reasonable doubt.’ State v. Rattana Keo Phuong, 174 Wash.App. 494, 299 P.3d 37 (Washington Court of Appeals 2013) (quoting Jackson v. Virginia, supra). . . . This standard of review is also designed to ensure that the fact finder at trial reached the `subjective state of near certitude of the guilt of the accused,’ as required by the Fourteenth Amendment's proof beyond a reasonable doubt standard. Jackson v. Virginia, supra.

`A claim of insufficiency admits the truth of the State's evidence and all inferences that reasonably can be drawn therefrom.’ State v. Salinas, 119 Wash.2d 192, 829 P.2d 1068 (Washington Supreme Court 1992). Circumstantial evidence and direct evidence carry equal weight when reviewed by an appellate court. State v. Goodman, 150 Wash.2d 774, 83 P.3d 410 (Washington Supreme Court 2004). Finally, we defer to the fact finder on issues of conflicting testimony, witness credibility, and persuasiveness of the evidence. State v. Rodriquez, 187 Wash.App. 922, 352 P.3d 200, review denied, 184 Wash.2d 1011, 360 P.3d 817 (Washington Supreme Court 2015).
State v. Kohonen, supra.
The court then began the process of applying the above standards to the facts in this case, noting, initially, that
J.K. was charged with misdemeanor cyberstalking contrary to [Revised Code of Washington] 9.61.260, which provides, in pertinent part:

(1) A person is guilty of cyberstalking if he or she, with intent  to harass, intimidate, torment, or embarrass any other person,. . .  makes an electronic communication to such other person or a third party:
. . .

(c) Threatening to inflict injury on the person or property of the person called or any member of his or her family or household.
State v. Kohonen, supra.
It went on to apply the above standards to the issues in this case, noting, initially, that
[t]hus, to convict J.K. of the crime of cyberstalking, the State was required to prove, in pertinent part, each of the following elements beyond a reasonable doubt: (1) that J.K. made an electronic communication to another person, (2) that, at the time J.K. made the electronic communication, she specifically intended to harass, intimidate, torment, or embarrass another person, and (3) that J.K. threatened to inflict injury on the person to whom the electronic communication was made. See 11 WASHINGTON PATTERN JURY INSTRUCTIONS: CRIMINAL 36.82 (3d ed. Supp.2014).
State v. Kohonen, supra.
The Court of Appeals then noted that
J.K. contends that insufficient evidence was presented to support a finding that her tweets constituted `true threats.’

Where a threat to commit bodily harm is an element of a crime, the State must prove that the alleged threat was a `true threat.’ State v. Kilburn, 151 Wash.2d 36, 84 P.3d 1215 (Washington Supreme Court 2004). This is because of the danger that the criminal statute will be used to criminalize pure speech and impinge on First Amendment rights. True threats are not protected speech because of the `fear of harm aroused in the person threatened and the disruption that may occur as a result of that fear.’ State v. Kilburn, supra.
State v. Kohonen, supra.
The Court of Appeals went on to explain that
[t]he test for determining a `true threat' is an objective test that focuses on the speaker. State v. Kilburn, supra. The question is whether a reasonable person in the speaker's position would foresee that the threat would be interpreted as a serious expression of intention to inflict the harm threatened. State v. Allen,  176 Wash.2d 611, 294 P.3d 679 (Washington Supreme Court 2013); accord State v. Kilburn, supra.

A true threat is a serious threat, not one said in jest, idle talk, or political argument. State v. Kilburn, supra (citing U.S. v. Howell, 719 F.2d 1258 (U.S. Court of Appeals for the 5th Circuit 1983)). Stated another way, communications that `bear the wording of threats but which are in fact merely jokes, idle talk, or hyperbole’ are not true threats. State v. Schaler, 169 Wash.2d 274, 236 P.3d 858 (Washington Supreme Court 2010). The nature of a threat `depends on all the facts and circumstances, and it is not proper to limit the inquiry to a literal translation of the words spoken.’ State v. C.G., 150 Wash.2d 604, 611, 80 P.3d 594 (Washington Supreme Court 2003).

Statements may `connote something they do not literally say. . . .’ Planned Parenthood of Columbia/Willamette, Inc, v. Am. Coal, of Life Activists. 290 F.3d 1058 (U.S. Court of Appeals for the 9th Circuit 2002). Consistently with this recognition, our court has held that `[w]hether a statement is a true threat or a joke is determined in light of the entire context’ and `that a person can indirectly threaten to harm or kill another.’ State v. Kilburn, supra.  Further, `[t]he speaker of a ‘true threat’ need not actually intend to carry it out. It is enough that a reasonable speaker would foresee that the threat would be considered serious.’ State v. Schaler, 169 Wash.2d 274, 236 P.3d 858 (Washington Supreme Court 2010). . . .

State v. Locke, 175 Wash. App. 7779, 790, 307 P.3d 771 (Washington Court of Appeals 2013), review denied, 179 Wn.2d 1021 (2014).
State v. Kohonen, supra.
The Court of Appeals then explained that “[a]pplying the foregoing principles of law to the facts herein, the relevant question is whether a reasonable person in J.K.'s position would have foreseen that the tweets would be interpreted as a serious expression of an intent to physically harm S.G.”  State v. Kohonen, supra. It then undertook that analysis, noting that
[w]e focus first on the exact language of the tweets. In this regard, a description of the threats at issue in Locke is useful.

Locke concerned a series of Internet threats made against former Governor Christine Gregoire over approximately five minutes. In Locke's first email to the governor, the author identified his city as `Gregoiremustdie’ and stated his desire for her to witness a family member `raped and murdered by a sexual predator. State v. Locke, supra. The e-mail also stated that the governor had `put this state in the toilet’ and requested that she `pull the lever to send us down before you leave Olympia.’ State v. Locke, supra. The court concluded that the various messages in the e-mail did not constitute a true threat because the messages were `more in the nature of hyperbolic political speech, predicting threatening personal consequences from the State's policies.’ State v. Locke, supra.

Locke's second e-mail again identified his city as `Gregoiremustdie.’ In this e-mail, he addressed the governor with an emphatic, gender-specific epithet and expressed his opinion that she should be `burned at the stake like any heretic.’ State v. Locke, supra. While noting that `[the e-mail's] message, expressed twice, [was] that the governor should be killed,’ the court concluded that, because of its `passive and impersonal phrasing,’ this email also did not constitute a true threat. State v. Locke, supra. The author's message, it explained, `[was] that someone should kill the governor, not that he intends to.’ State v. Locke, supra.
State v. Kohonen, supra.
Next, the Court of Appeals noted that the
final threat [in Locke] was submitted through the governor's website on a form entitled, `Invite Governor Gregoire to an Event.’ Using this form, the author, who again identified his organization as `Gregoire Must D[i]e,’ requested that an event be held at the Governor's mansion. He stated that the event's subject would be `Gregoire's public execution’ and that the governor's role would be `Honoree.’ State v. Locke, supra. He also noted that the event would last 15 minutes, the media would be invited, and the audience's size would be greater than 150. State v. Locke, supra.

The court concluded that, in this instance, taken in context, the communication constituted a `true threat.’ In the context of the author's threats, there had been a `rapid progression of [his] communications from expressing his displeasure with her to his blunt desire for her death.’ State v. Locke, supra. In particular, the specificity of the final communication `thr[e]w the threat into higher relief and translate[d] it from the realm of the abstract to that of the practical.’ State v. Locke, supra. In the broader context, as Locke was aware, there had recently been a shooting of an elected official in another state. Furthermore, all of the witnesses from the governor's office testified that they took Locke's communications to be serious threats. Finally, Locke himself told police that he understood that his threats would be taken seriously.
State v. Kohonen, supra.
The Court of Appeals then returned to the issue of whether the tweets in the Kohonen case were “true threats:”
A comparison of the text of the threats at issue herein with those analyzed in Locke suggest that—in terms of the words alone—the tweets do not constitute true threats. First, the similarity between Locke's `Gregoiremustdie’ statement and J.K .'s `# [S.G.]mustdie’ tweet is striking. Apart from the person named, the difference between the text of J.K.'s tweet and this part of Locke's e-mails is the hashtag. This difference is immaterial. The hashtag does not elevate the tweet to a true threat but, rather, is indicative of the social media context in which it was published. As summarized above, these statements were deemed not to constitute true threats in Locke.
There are also commonalities between J.K.'s second tweet and the threats analyzed in Locke. In particular, similar to the threats regarding violence against the governor or members of her family included in Locke's first two e-mails, J.K.'s second tweet expressed a desire to harm S.G., not an intention to do so. Again, the court in Locke held that the comparable statements—those expressing a desire for, or prediction of, violence—did not constitute true threats.

However, in true threat cases, it is not just the words and phrasing of the alleged threat that matter, but also the larger context in which the words were uttered, including the identity of the speaker, the composition of the audience, the medium used to communicate the alleged threat, and the greater environment in which the alleged threat was made. Herein, the combined high school and social media context in which the alleged threats were made further supports the conclusion that J.K.'s tweets did not constitute true threats.

The author of the alleged threats was J.K., an adolescent high school student. The intended audience was J.K.'s Twitter followers, approximately 100 of her friends and acquaintances—in short, members of her peer group. The alleged threats were disseminated via Twitter, a popular social media platform. Testimony established that J.K. and her peers used Twitter to `tweet their feelings, things that are going on, funny pictures, just pictures in general’ and to `post [their] thoughts, [their] reactions to things, [their] feelings, things that happen to [them] on a daily basis[, and] inside jokes with friends.’
State v. Kohonen, supra.
The Court of Appeals went on to explain that, among other things, the “Commissioner” who acted as the fact-finder in the disciplinary proceeding against J.K. heard testimony from several students, including S.G., the alleged victim of J.K’s tweets.  State v. Kohonen, supra. It also explained that in her testimony, S.G.
recounted not only her own response, but also the overheard response of another student. According to S.G., she heard another student at school talking about `how funny’ the tweets were. Regarding her own response, S.G. repeatedly recalled feeling `upset,’ `angry,’ and `embarrassed’ upon learning of the tweets. By contrast, S.G. repeatedly denied that she felt scared or afraid as a result of the tweets. Consistent with her stated lack of fear, after leaving the school administration building, S.G. returned directly to class. Thus, even S.G., who did not know J.K. well and who knew that J.K. might resent her because of the incident two years earlier, did not view these tweets as expressing an actual intent to cause physical harm. Indeed, not one of the people in J.K.'s intended audience who testified perceived the tweets to be serious threats.
State v. Kohonen, supra.
The Court of Appeals therefore found that
J.K.'s tweets bear the signs of—admittedly mean-spirited—hyperbolic expressions of frustration, and that is precisely how they were received. A reasonable person in J.K.'s position would not have anticipated a different reception. Therefore, insufficient evidence was presented that the tweets constituted true threats. Because Lockhart and Brown were not part of J.K.'s peer group and were unfamiliar with Twitter, their reactions to J.K.'s tweets are a poor measure of the reaction that a reasonable person in J.K.'s position would have anticipated from her peers.
State v. Kohonen, supra.

The Court of Appeals therefore reversed her conviction and remanded the case to the trial court “for the cause to be dismissed with prejudice.”  State v. Kohonen, supra.

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