A charge of harassment can punish speech, raising First Amendment issues. When the state charges a person with harassment under Washington criminal law, it has to prove the defendant’s statements were not protected speech. One way to do this is to show that the words constituted a “true threat.” A true threat is not hyperbole or a joke, but a serious threat. Courts do not consider what the speaker intended. Instead, they look at whether a reasonable person would foresee the statement being interpreted as intent to physically harm someone. The court considers this question in the context of the actual intended audience. Courts may consider whether there was a specific plan to harm, the tone of the message, and whether it was repeated to multiple audiences.
In a recent case, a 17-year-old defendant successfully challenged her adjudication of guilt on a harassment charge. During an argument with her mother, the defendant texted her friends. In one text, she stated “Bet imma get her killed [. . .]” She texted another friend, “Imma [expletive] kill this [expletive].”
The mother subsequently looked in the phone and found the texts. She also found violent comments the defendant made about another person. The mother changed the locks on the house and slept with a knife. She showed screen shots of the messages to the police.
The defendant was charged with harassment in juvenile court. She testified she did not intend for anyone other than her friends to see her messages and that she did not mean for them to be taken seriously. She said exaggerated and violent language was common in texts between her and her friends, but it was not meant to be taken literally. She said she was just venting. She had used emojis and “LOLs” in the messages.
The juvenile court found her guilty of harassment, finding the messages were true threats because the defendant’s mother and one of the friends took them seriously. She was sentenced to 13 days’ confinement and 12 months’ community supervision.
The defendant appealed, arguing the evidence was insufficient to support the guilty adjudication. She argued the state had not shown there was a true threat.
The appeals court noted the defendant’s mother was not the intended audience. The defendant had intended the messages to be seen only by her friends. The issue, then, was not how the mother interpreted the texts. The question was how a reasonable person would believe her friends would interpret them.
The court pointed out it would be helpful to hear from the intended audience, but neither of the defendant’s friends testified. Knowing how the friends actually reacted would help the court assess whether the defendant could reasonably believe her friends would take the texts as hyperbole or jokes. Testimony could also help the court interpret the emojis in the text messages.
The defendant’s friend “Joshua” use violent language first by texting, “Haha beat her ass.” When the defendant responded, “imma get her killed,” Joshua replied, “Woh chill just beat her ass that’s it lol.” The appeals court found Joshua maintained a joking tone with the use of “Haha” and “lol.” The appeals court found the record did not support a finding Joshua interpreted the text as a true threat. Additionally, the defendant included a laughing emoji in her next text. The appeals court found a reasonable person would not foresee the statement being interpreted as a serious threat when she used that emoji following Joshua’s use of “Haha” and “lol.”
The appeals court noted the state did not provide context for the second exchange, with Lexy. The defendant had included a “face with tears of joy” emoji before stating, “Imma [expletive] kill this [expletive].” She also indicated she was upset that her mother wanted to send her to live with her father, a typical “teenage frustration,” according to the appeals court. The appeals court found this statement could not reasonably be interpreted as a true threat.
The appeals court found the previous text conversation supported the defendant’s claim she was just using exaggerated language. That message thread also included emojis and “Lmfao” with statements about hurting or killing a person. The appeals court found the use of emojis and initialisms like “Lmfao” “conveyed an unmistakable message of sarcasm…”
The appeals court found the fact the defendant made similar statements to two people did not make them serious threats, since both recipients were her friends and peers.
The appeals court reversed the adjudication of guilt and disposition.
A criminal conviction or adjudication of guilt can have lifelong effects on a young person. If your child is facing criminal charges, a skilled Washington juvenile criminal defense attorney can fight to protect your child’s rights. Call Blair & Kim, PLLC, at (206) 622-6562 to schedule an appointment.