The U.S. Supreme Court has long acknowledged that “true threats” are not protected speech under the First Amendment. But the question of what constitutes a true threat, especially in the age of social media, has sparked a split of judicial opinion. First Amendment scholars expected the Supreme Court to resolve this question in the Elonis case. However, the Court decided that it was “not necessary to consider any First Amendment issues.”
The Colorado Supreme Court has tried to fill that void with its decision in People v. R.D. The case involved a Twitter exchange between two teens who did not know each other’s names or even where each other lived or went to school.
The conversation featured such memorable phrases as “kill you” and “body bag” and one Tweet featured a picture of gun. The trial court reasoned that the picture of the gun was similar to showing a real gun in a face-to-face confrontation and ruled that the exchange was not protected by the First Amendment. (This led to an interesting, but slightly off-topic discussion of how gun emojis might appear to be real guns on some operating systems and water pistols on others.)
The First Amendment does not protect true threats solely because of the possibility that real violence will occur. The doctrine also recognizes the social interest in protecting the targets of the threat from intimidation and fear. Thus, the Supreme Court has ruled that it is irrelevant that the speaker did not intend to carry out the threat. Still, it must be a real threat and not simply “political hyperbole.” The question left unanswered by Elonis is whether the speaker must intend to cause fear in the recipient.
The Colorado Supreme Court ruled that the objective tests used in the past were not sufficient to distinguish between constitutionally protected speech and a true threat. Instead, the court articulated five “contextual factors” that must be considered by the trier of fact: 1) “the statement’s role in the broader exchange”; 2) the “medium” through which the statement was communicated; 3) whether the statement was anonymous and whether it was private or public; 4) any relationship between speaker and recipient; and 5) the subjective reaction of the “intended or foreseeable recipient(s).”
The court noted that these factors were not an exhaustive list but are intended as tools to help the fact finder put the statements into context. The court further stated that trial court had discretion on how to weigh the various factors and even suggested that it might be necessary to resort to experts “to help illuminate coded meanings, explain community norms and conventions, or bridge other contextual gaps.”
The true test of appellate decisions such as this is whether they give the trial court sufficient guidance on how to judge a particular case. In Colorado, the trial court’s balancing of the five factors is not determinative. Whether a statement constitutes a true threat is “a matter subject to independent review” on appeal.
Social media continues to evolve, as do social norms for how we communicate with each other. Indeed, as the Twitter conversation in this case and our own experiences demonstrate, social media seems to bring out the worst in people and coarsen the public dialogue—even as it makes that dialogue easier. As social media makes it easier to communicate and the coarseness of modern culture encourages hyperbolic statements, courts will need to carefully consider the context and mode of communication to distinguish between protected speech and a true threat. The Colorado Supreme Court has started the conversation on how courts should make that distinction.
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 Elonis v. United States, 135 S. Ct. 2001, 2024 (2015) (Thomas, J., dissenting) (“‘From 1791 to the present, . . . our society . . . has permitted restrictions upon the content of speech in a few limited areas,’ true threats being one of them.) (citing R.A.V. v. St. Paul, 505 U.S. 377, 382-83 (1992)).
 Elonis, 135 S. Ct. at 2018 (Thomas, J., dissenting).
 Id. at 2012.
 People v. R.D., 464 P.3d 717 (2020).
 Id. at 724.
 Id. at 730.
 Virginia v. Black, 538 U.S. 343, 360 (2003).
 Watts v. United States, 394 U.S. 705, 708 (1969).
 R.D., 464 P.3d at 731.
 Id. at 734.
 Glenn Harlan Reynolds, I deleted my Twitter account. It’s a breeding ground for thoughtlessness and contempt. USA Today, Dec. 3, 2018 (https://www.usatoday.com/story/opinion/2018/12/03/twitter-facebook-social-media-bias-political-poison-blogosphere-instapundit-column/2183648002/).