March 01, 2016

Cyberstalking Conviction Requires that Statements Constitute “True Threat” to Lose Protected Speech Status

Eva Klain

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

State v. Kohonen, 2016 WL 492651 (Wash. Ct. App.). 

Juvenile defendant’s blog posts stating that she still wanted to punch the alleged victim in the throat and containing a hashtag stating that victim “must die” did not constitute a true threat. The posts therefore did not lose their status as protected speech, as required for a cyberstalking conviction. Her conviction was reversed and the case remanded for dismissal with prejudice.

J.K. was adjudicated guilty in juvenile court of cyberstalking based on two tweets she sent from her personal Twitter account. She appealed, arguing the evidence was insufficient to establish she acted with the intent to “harass, intimidate, torment, or embarrass” another person or that her tweets constituted “true threats.” 

When J.K. was in eighth grade, a classmate, S.G., told a teacher another student was behaving oddly. As a result, the other student and J.K. were both suspended from school. J.K. and S.G. had no other interaction until two years later when both were sophomores in high school. When J.K. saw S.G. in class, she was reminded of the incident two years before. She quickly posted two short messages (tweets) using Twitter. The first read, “I still want to punch you in the throat even tho it was 2 years ago,” and the second read, “#[S.G.]mustdie.”

S.G. testified that she felt angry and embarrassed when she learned of the tweets from another student, but she was not frightened because she did not think J.K. would actually hurt her. She did, however, inform school administrators, who involved the school resource officer. 

As a result, charges were brought and J.K. was adjudicated guilty on one count of cyberstalking. The trial court found J.K. acted with the intent to embarrass, harass, and torment S.G. and her account of whether she had considered the potential effect of the tweets was not credible. The court concluded the tweets constituted a true threat. 

When a threat to commit bodily harm is an element of a crime, the prosecution must prove the alleged threat was a true threat, so the criminal statute cannot be used to criminalize pure speech and impinge on First Amendment rights. True threats are not protected speech. Jokes, idle talk, or hyperbole are not true threats even when they are worded as threats.

The test for determining whether a threat is a true threat focuses on the speaker: whether a reasonable person in the speaker’s position would foresee the threat would be interpreted as a serious expression of intent to inflict the harm threatened. The nature of a threat depends on all the facts and circumstances and should not be limited to the literal translation of the communicated words. This analysis includes 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.

In this case, the combined high school and social media context supports the conclusion that J.K.’s tweets did not constitute true threats. Because her tweets were not a true threat, they did not lose their status as protected speech. Although S.G. testified that she felt upset, angry, and embarrassed, she explicitly denied feeling scared. The threats were made on a popular social media platform and were hyperbolic expressions of frustration, which was how they were received.