2020 CO 44
Colo.2020Background
- Days after a fatal Arapahoe High School shooting, a heated multi-student Twitter exchange occurred among students from neighboring schools; R.D. sent multiple violent tweets (including racial epithets) and posted a photo of a handgun with ammunition directed at another student.
- Colorado charged the juvenile R.D. under Colo. Rev. Stat. § 18-9-111(1)(e) (harassment by electronic communication intended to threaten bodily injury); the juvenile court found him delinquent, emphasizing the handgun photo.
- The court of appeals reversed, concluding R.D.’s tweets were not “true threats” when read in context (public tweets, recipient responses suggesting they were not seriously threatened, lack of personal knowledge of the target).
- The People petitioned for certiorari; the Colorado Supreme Court granted review to decide whether the tweets were protected speech and to clarify the true-threats framework for online communications.
- The Supreme Court refined Colorado’s true-threat test for online statements, enumerated contextual factors courts must consider, held the State must prove subjective intent to threaten under the statute at issue (while not deciding whether the First Amendment always requires subjective intent), reversed the court of appeals, and remanded for reconsideration under the new framework.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether R.D.’s tweets were “true threats” and thus unprotected | Tweets (including gun photo) were serious threats given timing after a school shooting and caused recipients fear | Tweets were hyperbole/hot‑headed online insults; recipients did not take them seriously; protected speech | Court set refined true-threat definition and remanded for juvenile court to reevaluate whether tweets meet that test |
| Whether the State must prove the speaker’s subjective intent to threaten | State maintained statutory element requires intent to threaten; enforcement justified to protect safety | Defense argued objective reasonable‑recipient test should govern First Amendment analysis | Court agreed the State must prove subjective intent for this statutory prosecution but did not decide if the Constitution always requires it |
| How to evaluate alleged threats made online (contextual factors) | Court should consider the heightened risk online posts pose and context supporting a threat finding | Defense emphasized online conventions, audience, and responses undermining threat perception | Court provided a non‑exhaustive list of online‑specific factors (see Key Points) that courts must consider |
| Remedy after erroneous appellate ruling | People sought reversal of court of appeals and remand | R.D. sought dismissal/vacatur of adjudication | Court reversed court of appeals and remanded to juvenile court to apply the refined framework |
Key Cases Cited
- Watts v. United States, 394 U.S. 705 (1969) (context and listeners’ reaction can show political hyperbole is not a true threat)
- Virginia v. Black, 538 U.S. 343 (2003) (defines true threat as serious expression of intent to commit unlawful violence; protects against fear and disruption)
- Elonis v. United States, 135 S. Ct. 2001 (2015) (addressed social‑media threats; resolved on statutory mens rea grounds and left doctrinal intent question unsettled)
- Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) (recognizes narrowly defined unprotected categories of speech like fighting words)
- R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) (discussion of constitutionally proscribable content and limits)
- People v. Baer, 973 P.2d 1225 (Colo. 1999) (prior Colorado treatment suggesting a reasonable‑person foreseeability inquiry)
- People v. Janousek, 871 P.2d 1189 (Colo. 1994) (special concurrence articulating a reasonable‑listener focus)
(Selected contextual factors the Court highlighted for online threats: role in a broader exchange and surrounding events; platform conventions and architecture; manner of communication—public/private or anonymous; relationship between speaker and recipients; and recipients’ subjective reactions.)