December 29, 2016
The People of the State of Colorado, Petitioner-Appellee, In the Interest of R.D., Juvenile-Appellant.
County District Court No. 13JD868 Honorable Theresa Slade,
REVERSED AND CASE REMANDED WITH DIRECTIONS.
Cynthia H. Coffman, Attorney General, Joseph G. Michaels,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Elizabeth
Porter-Merrill, Deputy State Public Defender, Denver,
Colorado, for Juvenile-Appellant.
1 R.D., a juvenile, appeals the district court's
adjudication of delinquency. We reverse and remand with
directions to vacate the adjudication of juvenile delinquency
and dismiss the proceeding.
2 This case arises out of an argument between students from
Littleton High School and Thomas Jefferson High School on the
social networking website Twitter. The argument began after a
student from Thomas Jefferson High School posted a Tweet
expressing support for Arapahoe High School after a shooting
had occurred there. A student from Littleton High School
Tweeted that students from Thomas Jefferson High School did
not care about the shooting, leading to an argument between
students from both schools.
3 As the argument progressed, R.D., a student at Littleton
High School, joined the conversation. R.D. directed multiple
Tweets at A.C., a student from Thomas Jefferson High
School. These Tweets included:
• "[i]f I see your bitch ass outside of school you
catching a bullet bitch";
• "you a bitch, ill come to Tgay and kill you
• "all you fuck niggas will get your ass beat real
• "you think this shit a game, I'm not
also Tweeted a picture of a gun with the message "this
all I'm saying. We don't want another incident like
Arapahoe. My 9 never on vacation."
4 A.C. directed multiple Tweets at R.D. in response. These
• "I'll see u tomorrow fuck boy";
• "you are all talk so go the fuck to bed come up
to TJ and get slept";
• "shoot then pussy"; and
• "you ain't never shot no one so sit down and
get off google images bruh."
5 The People filed a petition in delinquency charging R.D.
with conduct that if committed by an adult would constitute
harassment by communication under section 18-9-111(1)(e),
C.R.S. 2013. At a bench trial, A.C. and another student
testified that they believed R.D.'s statements were
threats. The district court adjudicated R.D. a juvenile
delinquent based on conduct that would constitute harassment
if committed by an adult.
As-Applied Constitutional Challenge
6 R.D. argues that the application of section 18-9-111(1)(e)
to his conduct violated his First Amendment right to free
speech. The People respond that R.D.'s statements were
not protected by the First Amendment because they were true
threats and fighting words. We conclude that because
R.D.'s statements were neither true threats nor fighting
words, the statute as applied violated his right to free
Standard of Review
7 We review the constitutionality of a statute as applied de
novo. Hinojos-Mendoza v. People, 169 P.3d 662, 668
(Colo. 2007); People v. Stanley, 170 P.3d 782, 787
(Colo.App. 2007). A statute is presumed to be constitutional,
and the party challenging the statute has the burden of
proving unconstitutionality beyond a reasonable doubt.
People v. Janousek, 871 P.2d 1189, 1195 (Colo.
1994). Where a statute is not facially unconstitutional, a
challenger must show that the statute is unconstitutional as
applied to his or her conduct. People v. Baer, 973
P.2d 1225, 1231 (Colo. 1999).
8 The First Amendment of the United States Constitution
provides that "Congress shall make no law . . .
abridging the freedom of speech." Colorado's
counterpart to the First Amendment, article II, section 10 of
the Colorado Constitution, provides that "[n]o law shall
be passed impairing the freedom of speech."
9 While the First Amendment protects the right to free
speech, its protection is not absolute. Stanley, 170
P.3d at 786 (citing Virginia v. Black, 538 U.S. 343,
358 (2003)). Some categories of speech, such as true threats
and fighting words, are unprotected by the First Amendment
and, thus, may be regulated by the government. Id.
(citing Black, 538 U.S. at 359); see also People
in the Interest of K.W., 2012 COA 151, ¶ 30 (citing
Cohen v. California, 403 U.S. 15, 20 (1971)).
Because R.D. does not assert that he is entitled to greater
protection under the Colorado Constitution, we address only
the First Amendment.
10 A threat is a statement of purpose or intent to cause
injury or harm to the person, property, or rights of another,
by committing an unlawful act. People v. McIntier,
134 P.3d 467, 472 (Colo.App. 2005) (citing People v.
Hickman, 988 P.2d 628, 637 (Colo. 1999)). But the
critical inquiry is "whether the statements, viewed in
the context in which they were spoken or written, constitute
a 'true threat.'" Id. (quoting
Janousek, 871 P.2d at 1198 (Mullarkey, J., specially
concurring)). A true threat is not merely talk or jest, and
it is evaluated "by whether those who hear or read the
threat reasonably consider that an actual threat has been
made." Id. (quoting Janousek, 871 P.2d
at 1198 (Mullarkey, J., specially concurring)).
While whether a statement is a true threat is a question of
fact to be determined by the fact finder, where First
Amendment concerns are implicated, the court has an
obligation to make an independent review of the record to
assure that the judgment does not impermissibly intrude on
the field of free expression.
People v. Chase, 2013 COA 27, ¶ 70 (citations
omitted). In determining this, we first consider the plain
import of the words used. Stanley, 170 P.3d at 790
(citing Janousek, 871 P.2d at 1195). Then we look to
the context in which the statements were made. Id.
(citing McIntier, 134 P.3d at 472). Among other
contextual factors, we may consider (1) to whom the statement
is communicated; (2) the manner in which the statement is
communicated; and (3) the subjective reaction of the person
whom the statement concerns. Id. (citing Watts
v. United States, 394 U.S. 705, 708 (1969)).
11 After independently reviewing the record, we conclude that
R.D.'s Tweets did not constitute true threats because
they were not "a serious expression of an intent to
commit an act of unlawful violence to a particular individual
or group of individuals." Id. at 786 (quoting
Black, 538 U.S. at 359). While the language of
R.D.'s Tweets was violent and explicit, the context in
which the statements were made mitigated their tone in three
ways. Id. (citing McIntier, 134 P.3d at
12 The first contextual factor we consider is to whom the
statements were communicated. R.D. Tweeted "you
don't even know me. Mf I don't even know were tf your
lame bitch ass school is." This Tweet showed that he did
not know A.C. personally and did not know where Thomas
Jefferson High School was located. See Chase, ¶
73 (stating that defendant personally knowing the victims and
knowing where they lived supported the conclusion that his
e-mails were true threats). And, R.D. never referred to A.C.
by name. He addressed him only by his Twitter username of
"iTweetYouShutUp." See id. (finding that
defendant expressly referred to the named victims in his
e-mails supported the conclusion that the e-mails were true
13 Next we consider the manner in which the statements were
communicated. R.D. posted his messages to Twitter, a public
forum. While he did use "@" to direct his messages
toward A.C., the messages could be viewed on R.D.'s
Twitter homepage and were not sent to A.C. in a private
message. So, Tweets can be differentiated from e-mails and
other social media messages, which are sent directly - and
usually privately - to a person or specified group of people.
See id. at ¶ 74 (e-mails sent to named victims
can constitute a true threat).
14 Finally, we consider the subjective reaction of the person
whom the statements concern. When R.D. indicated that he did
not know where Thomas Jefferson High School was located, A.C.
responded by Tweeting the school's address: "3950 S.
Holly street. I'll see u tomorrow fuck boy." A.C.
subsequently Tweeted "you are all talk so go the fuck to
bed come up to TJ and get slept" and "shoot then
pussy." And, when R.D. Tweeted a picture of a gun, A.C.
responded "you ain't never shot no one so sit down
and get off google images bruh." A.C.'s Tweets
demonstrate that he did not appear threatened by R.D.'s
Tweets and that he did not take precautionary measures to
protect himself from R.D. See id. at ¶ 73
(stating that victims having taken specific precautionary
measures to protect themselves from defendant supported the
conclusion that his e-mails were true threats).
15 While A.C. later testified that he believed R.D.'s
Tweets were threats against him, the critical inquiry in true
threat analysis is "whether the statements, viewed in
the context in which they were spoken or written, constitute
a 'true threat.'" McIntier, 134 P.3d at
472 (quoting Janousek, 871 P.2d at 1198 (Mullarkey,
J., specially concurring)). A.C.'s reaction to R.D.'s
Tweets shows that he did not view the statements as true
threats when they were received.
16 In sum, based on the context in which R.D.'s
statements were made, we conclude that the Tweets did not
constitute true threats.
17 Fighting words are "personal abusive epithets that
when directed to the ordinary citizen are inherently likely
to provoke a violent reaction." K.W., ¶ 30
(citing Cohen, 403 U.S. at 20). In determining
whether a statement constitutes fighting words, again we must
consider "[t]he context or circumstances in which the
language is used." Id. (citing FCC v.
Pacifica Found., 438 U.S. 726, 745 (1978)).
18 After independently reviewing the record, we conclude that
R.D.'s Tweets did not constitute fighting words. Fighting
words, by their definition, can occur only when the speaker
is in close physical proximity to the recipient. Statements
that are made from a distance cannot "incite an
immediate breach of the peace" because a remote
recipient would necessarily have a cooling off period before
he or she could confront the speaker. Chaplinsky v. New
Hampshire, 315 U.S. 568, 572 (1942). Even a brief
cooling off period ensures that statements will not
"incite an immediate breach of the peace."
Id. (emphasis added).
19 While this issue has not been specifically addressed in
Colorado, a number of states have concluded that "[t]he
potential to elicit an immediate violent response exists only
where the communication occurs face-to-face or in close
physical proximity." City of Billings v.
Nelson, 322 P.3d 1039, 1045 (Mont. 2014); see also
Citizen Publ'g Co. v. Miller, 115 P.3d 107, 113
(Ariz. 2005) ("This case does not fall within the
fighting words exception to the First Amendment. The
statements at issue were made in a letter to the editor, not
in a face-to-face confrontation with the target of the
remarks."); State v. Drahota, 788 N.W.2d 796,
804 (Neb. 2010) ("[E]ven if a fact finder could conclude
that in a face-to-face confrontation, [defendant's]
speech would have provoked an immediate retaliation, [the
recipient] could not have immediately retaliated. [He] did
not know who sent the e-mails, let alone where to find the
author."); but see Davidson v. Seneca Crossing
Section II Homeowner's Ass'n, 979 A.2d 260, 283
(Md. Ct. Spec. App. 2009) (upholding a permanent injunction
prohibiting the sending of e-mails and letters based on the
fighting words doctrine, where the enjoined party also
engaged in verbal attacks and made vulgar gestures in the
presence of the parties requesting the injunction).
20 We consider these cases well reasoned and follow them
here. So, because R.D. was not in close physical proximity to
A.C. at the time of the incident, his Tweets could not have
constituted fighting words.
21 Because we have concluded that R.D.'s Tweets were not
true threats or fighting words, applying section
18-9-111(1)(e), C.R.S. 2013, to R.D.'s conduct violated
his First Amendment rights. For these reasons, we further
conclude that the statute is unconstitutional as applied.
22 We reverse the district court's judgment and remand
with directions to vacate the adjudication of juvenile
delinquency and dismiss the proceeding.
WEBB and JUDGE NAVARRO concur.
 When a user posts a Tweet, it can be
viewed on the user's Twitter homepage. A user can mention
another person in a Tweet by using "@" followed by
the person's username. The person is then notified that
he or she has been mentioned in a Tweet. Posting a Tweet that
mentions another person is different from sending a direct
message on Twitter. A Tweet that mentions another person can
be viewed on the sender's Twitter homepage, while a
direct message can only be seen by the recipient. Using
Twitter, Twitter, https://perma.cc/KW8C-V49K.
 R.D. mentioned A.C. by beginning his
Tweets with ""iTweetYouShutUp" (A.C.'s
 Section 18-9-111(1)(e), C.R.S. 2013,
which has since been amended, stated that
[a] person commits harassment if, with intent to
harass, annoy, or alarm another person, he or she . . .
[i]nitiates communication with a person, anonymously or
otherwise, by telephone, telephone network, data network,
text message, instant message, computer, computer network, or
computer system in a manner intended to harass or threaten
bodily injury or property damage, or makes any comment,
request, suggestion, or proposal by telephone, computer,
computer network, or computer system that is obscene.