from the prepare-to-feel-old[er]! dept
Via the wonderfully entertaining law blog Lowering the Bar comes this interesting First Amendment case involving teens, texting, true threat discussions, and a judicial examination of emojis.
This one started with a pretty normal mother-daughter altercation before escalating into a series of text messages that became the basis for criminal charges. It all began over an argument about appropriate clothing before moving on to involve a doorway. From the decision [PDF]:
The case against 17-year-old D.R.C. began with a mother-daughter dispute over whether D.R.C. violated house rules by possessing gang-colored clothing. The argument took place in D.R.C.’s bedroom, and at some point D.R.C. slammed her door shut. D.R.C.’s mother responded by removing the door from its hinges.
While this dispute continued, D.R.C. texted friends, venting her anger by engaging in some violent, but seemingly hyperbolic, imagery.
[D.R.C.] Imma fucking do whatever tf I want she’s fucking stupid
JOSHUA Haha beat her ass
[D.R.C.] Bet imma get her killed if anything
JOSHUA Woh chill just beat her ass that’s it lol
[D.R.C.] Nah I hope she does Does ?
JOSHUA Damn too wild you are
The helpful footnote attached to “tf” explains:
Another discussion contained this message:
[D.R.C.] Imma fucking kill this bitch She is tryna make me go to my dads
Shortly after this, D.R.C.’s mom confiscated her phone, discovering these texts as well as some older ones discussing the “shanking” of some other person with a “pencil or bald point.” These texts were punctuated with several emojis that gave them the context a dry emoji-less recitation just doesn’t. Her mother reacted by changing the locks to the house, buying a stun gun, and sharing screenshots of the texts with police.
D.R.C. was charged with harassment in juvenile court. D.R.C. claimed the texts were harmless.
D.R.C. testified in her defense. She explained she never intended her messages to be seen by anyone other than her friends. Nor did she intend her texts to be taken seriously. They were instead a form of venting and expressing her emotions. D.R.C. testified she and her friends often used exaggerated language in their texts. Violent language was common but was not intended to be taken literally. According to D.R.C., she and her friends often denoted sarcasm through the use of emojis and initialisms such as LOLs or LMFAOs. D.R.C. did not think any of her friends would have taken the text messages about her mother seriously.
The court disagreed, finding D.R.C. guilty of harassment and her texts “true threats.” D.R.C. challenged her conviction and sentence (13 days confinement and 12 months supervised release).
The court says D.R.C.’s testimony ultimately doesn’t matter all that much. D.R.C. may have had no malicious intent but the court is required to ask whether D.R.C. should have reasonably assumed her texts might be viewed as threats by others not clued in to her subjective intent. And, for that matter, her mother’s reaction to the texts doesn’t matter because she was not the intended recipient. The messages were sent to D.R.C.’s friends, not to her mother.
With these principles in mind, we consider D.R.C.’s case. D.R.C.’s intended audience was not her mother, it was her two friends Joshua and Lexy. Thus, whether D.R.C.’s mother found her daughter’s texts alarming is not our focus. We instead must ask whether a reasonable person in D.R.C.’s position would have foreseen that either Joshua or Lexy would have interpreted D.R.C.’s texts as true threats, as opposed to merely a joke or an expression of emotion.
This might have been over already, but the trial court kind of screwed that up.
Our analysis of the perspective of Joshua and Lexy is hampered by the fact that neither was called as a witness at trial. Unlike prior cases such as Kilburn and Kohonen, we lack testimony here explaining the actual reactions of D.R.C.’s audience to her texts. Such reactions would be important in assessing whether it was reasonable for D.R.C. to believe her statements would have been interpreted as a joke or merely venting. These reactions also would have been helpful in analyzing the meaning of the various emojis D.R.C. sprinkled throughout her texts. Without explicatory testimony, we are left with only our impressions of the text message exchanges.
So, the court goes to the texts on the record. The first text exchange with “Joshua” doesn’t appear to have made the recipient feel D.R.C. was actually going to harm her mother.
Even if Joshua had been troubled by D.R.C.’s comments, the context of the text messages is still not indicative of a true threat. Immediately after Joshua’s “lol” text, D.R.C. reiterated the joking nature of the exchange by accenting her message with an emoji entitled “rolling on the floor laughing.” ? A reasonable person using this emoji in the context of Joshua’s “Haha” and “lol,” would not have foreseen D.R.C.’s statements as conveying a true intent to cause harm.
The same goes with the other exchanges, including the older messages discussing the “shanking” of an acquaintance.
D.R.C.’s past conversation with Lexy supports D.R.C.’s testimony that she tended to use hyperbolic language with her friends. In the prior text between D.R.C. and Lexy, D.R.C. accompanied her statements about harming or killing a mutual acquaintance with ”Lmfao”; the face with tears of joy emoji,?; a shrug emoji, ?; a smiling face with horns emoji, ?; a zany face emoji,?; and a heart emoji,??. Ex. 3. The combination of the initialism and emojis conveyed an unmistakable message of sarcasm, as opposed to a serious intent to cause harm or death.
Following this emoji-heavy discussion, the court says it has seen far more worrying statements from teens and still found them to be protected by the Constitution.
The language used by D.R.C. was distastefully violent, but it was not as disturbing as some of the past statements held to fall within First Amendment protections. In Kilburn, the juvenile defendant said to a classmate, “I’m going to bring a gun to school tomorrow and shoot everyone and start with you . . . maybe not you first.” 151 Wn.2d at 39. Despite the specificity of this statement and the fact the classmate found it troubling, our Supreme Court ruled that, in context, the statement did not constitute a true threat. If Kilburn’s statement was not a true threat, then D.R.C.’s emoji-filled texts certainly were not.
The court orders the juvenile conviction reversed, reminding everyone — including state prosecutors — that not all protected speech is pleasant.
While we rule in D.R.C.’s favor, our disposition should not be interpreted as approval of D.R.C.’s choice of language. We, like the trial court, find nothing funny in the texts. Nevertheless, the First Amendment protects all sorts of speech, even when the sentiment is hurtful or vile.
The First Amendment protects some of the worst speech — and some of the most egregious deployments of emojis. Keep that in mind, parents. Not everything ugly that drips out of your ungrateful offsprings’ mouth is a crime, no matter how much it may feel like it is at the time.