Tweets, Terroristic Threats and “True Threats” – Susan Brenner

8 03 2015

AutothermosFor reasons we will get to in a moment, the State of Missouri charged Robert Metzinger with “making a terroristic threat under [Missouri Revised Statutes] § 574.115(4).”  State v. Metzinger, 2015 WL 790463 (Missouri Court of Appeals 2015). Section 574.115(4) makes it a “class A misdemeanor” to

communicate[] a threat to cause an incident or condition involving danger to life, communicates a knowingly false report of an incident or condition involving danger to life, or knowingly causes a false belief or fear that an incident has occurred or that a condition exists involving danger to life: . . . [w]ith criminal negligence with regard to the risk of causing the evacuation, quarantine or closure of any portion of a building, inhabitable structure, place of assembly or facility of transportation.

The charge against Metzinger was based on four tweets he sent via Twitter:

  • October 21, 2013: Going to be tailgating with a # PressureCooker during games 3–4–5 in # STL during # WorldSeries. # STLStrong # GoCards # postseason from Springfield, MO.
  • October 22, 2013: Putting my loft up for ridiculous `Boston-only’ rate on @airbnb for the # WorldSeries. Pressure cooker sold separately.
  • October 22, 2013: The # WorldSeries will be another finish line not crossed by # Boston.
  • October 25, 2013: Listening to the Offspring’s `Bad Habit’ and the lyrics just ring true of what will go down very soon.

After being charged, Metzinger filed a motion to dismiss the information pursuant to

Rule 24.04(b)(2). In his motion, Metzinger claimed

that `the information does not, and cannot, allege all essential elements of § 574.115’ because [his] `sarcastic posts on Twitter did not constitute “true threats” as a matter of law and cannot be punished by the State.’

 More specifically, [he] argued that the information was insufficient because it failed to: `identify which tweets the State intends to argue were threatening’; allege that [he] communicated a `true threat’; and allege that [his] speech `created a substantial and unjustifiable risk of the evacuation of Busch Stadium.’ [Metzinger] stressed that his tweets `express[ed] insensitive sarcasm, competition, and overt trash talking’ in the excitement surrounding the Major League Baseball World Series, but did not communicate `any threat, let alone a “true threat.”’ (emphasis in original).

The prosecution filed a response, “in which it identified the `four specific tweets that are relevant to this case’ and asserted that the information alleged `all essential elements of § 574.115.’”

On February 28, 2014, the trial judge held a hearing on Metzinger’s motion to dismiss. At the hearing, Metzinger argued, among other things, that

the tweets failed to constitute a `true threat’ and argued that [he] was `protected by the 1st Amendment because it’s not a threat.’ The State responded, among other things: `. . . the context of a tweet with Boston coming to the World Series, and mentioning pressure cooker, the same explosive device that was used, and saying the finish line won’t be crossed, which is where the bomb was placed at the Boston Marathon, that makes this in the context a threat.’ Finally, the State advised the trial court that: `You can’t joke about setting off a pressure cooker bomb after the Boston Marathon.’

After hearing arguments from both sides, the trial judge said

I do not find any of the tweets, in totality, even if you throw the music lyrics on top of it, rising even remotely to the level of a true threat or an implied threat. . . .

These are untimely ramblings, that upon his inner circle advising him of the ridiculousness of them, he sought to pull them off prior to any intervention from any outside source. Therefore, I don’t believe they’re true threats or implied threats.

The judge therefore dismissed the charges with prejudice, which meant the case was over.

In State v Metzinger (Judgment of 24 February 2015) the Court of Appeals began its analysis of the issues in this appeal by noting that, because the judge dismissed the case before a trial had started, “jeopardy” under the 5th Amendment’s prohibition on double jeopardy had not attached, so the judge’s ruling was appealable

The court went on to address the prosecution’s argument that the judge erred in dismissing the prosecution because the information

charged the essential elements of the offense and apprised [Metzinger] of the facts constituting the offense. . . . [He] contends in response that: `[t]his case is not—and never has been—about whether the charging document the State submitted mechanically recites the elements of the crime charged.’

The 6th Amendment of the United States Constitution and article I, section 18(a) of the Missouri Constitution guarantee a defendant the right `to be informed of the nature and cause of the accusation. . . .’ [Missouri Rule of Criminal Procedure] 23.01 provides that the indictment or information shall `[s]tate plainly, concisely, and definitely the essential facts constituting the elements of the offense charged. . . .’ Rule 23.01(b)(2). `Measured by these standards, the test of the sufficiency of an indictment is whether it contains all the essential elements of the offense as set out in the statute and clearly apprises defendant of the facts constituting the offense in order to enable him to meet the charge and to bar further prosecution.’ State v. Reese, 697 S.W.2d 635 (Missouri Court of Appeals 1985). . . . 

Generally, an information or indictment is sufficient if it contains all essential elements of the offense as set out in the statute creating the offense. . . . However, where `the statute uses generic terms in defining the offense, it is necessary to recite sufficiently the conduct constituting the offense in order to accomplish the purpose of the indictment or information.”  In addition, an . . . information is generally sufficient `if it is substantially consistent with the forms of indictments or informations which have been approved by the Missouri Supreme Court.’” Griffin v. State, 185 S.W.3d 763 (Missouri Court of Appeals 2006). . . .     

The court then explained that, in this case, the information “purported to charge [Metzinger] with the class A misdemeanor of making a terrorist threat in violation of § 574.115.“ State v. Metzinger, supra. It went on to note that the “Missouri Approved Charge” for this offense states, “in relevant part,” that the

(Grand Jurors) (Circuit Attorney) (Prosecuting Attorney) of the (City) (County) of, State of Missouri, charge(s) that the defendant, in violation of Section 574.115, . . .  committed the (class C felony) (class D felony) (class A misdemeanor) of making a terroristic threat, punishable upon conviction under [ Insert appropriate punishment provision. See Notes on Use 2.], in that (on) (on or about) [ date ], in the (City) (County) of, State of Missouri, the defendant [ Insert one of the following. Omit brackets and number] knowingly communicated to [Identify person, place, organization, etc. to whom threat was communicated. ] a threat to cause [ Describe incident or condition threatened. ], (an incident) (a condition) involving a danger to life, by [ Describe how threat was communicated.], with criminal negligence with regard to the risk of causing the (evacuation) (quarantine) (closure) of (any portion of) [ Describe building or place.], (a building) (an inhabitable structure) (a place of assembly) (a facility of transportation).

The information filed against Metzinger alleged that

on or between October 21, 2013 and October 25, 2013, in the City of St. Louis, State of Missouri, the defendant knowingly communicated to the public a threat to cause an explosion, an incident involving danger to life, by tweeting repeated messages involving the detonation of an explosive device, and the defendant did so with criminal negligence with regard to the risk of causing the closure of any portion of Busch Stadium, a place of assembly.

In his motion to dismiss the information, Metzinger argued,

among other things, that the information was insufficient because the State failed to include the tweets upon which the information was based. More specifically, [he] argued: `Without [the tweets], the information is insufficient in that it does not clearly apprise defendant of the facts constituting the offense so as to enable defendant to prepare a defense to bar future prosecution for the same offense, and to permit the trial court to decide whether sufficient facts are alleged to support a conviction.’ (internal quotation omitted). We need not determine whether the words `tweeting repeated messages involving detonation of an explosive device’ clearly apprised Defendant of the essential facts constituting the charged offense because the State remedied any alleged deficiency by providing the specific language at issue in its response to Defendant’s motion to dismiss.

The court went on to explain that

[n]either the State nor [Metzinger] disputes that [he] tweeted the statements that formed the basis for the charge of making a terrorist threat. The dispute is whether the tweets constituted the type of threatening communication that the legislature intended to and may, consistent with the Missouri and U.S. Constitutions, criminalize. If . . . the tweets did not, as a matter of law, constitute `true threats,’ the information is fatally deficient for failure to allege an essential element of a crime under § 574.115 — `communicates a threat to cause an incident or condition involving danger to life.’ (emphasis added). Point one is denied.

The court then proceeded to address Metzinger’s argument that “the communications were not true threats because the tweets were: (1) facially non-threatening; (2) not directed at an individual or identifiable group; and (3) posted on Twitter, `the modern epitome of a public forum.’”

It began its analysis by explaining that, in Virginia v. Black, 538 U.S. 343 (2002), the U.S. Supreme Court

reaffirmed that the 1st Amendment allows states to ban `true threats.’ . . . However, the Court provided minimal guidance to courts tasked with the challenge of distinguishing `true threats’ from protected speech. . . .

In Black, the Court held that `”[t]rue threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. The speaker need not actually intend to carry out the threat.’ Virginia v. Black, supra. . . . The Court further explained that `[i]ntimidation in the constitutionally prescribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.’ Virginia v. Black, supra.

Following Black, federal courts have held that an indictment sufficiently charges the defendant with the crime of transmitting a `true threat’ in violation of 18 U.S. Code § 875(c) when it alleges that the defendant communicated a statement that `a reasonable jury could find . . .  expressed an intent to injure in the present or future.’ U.S. v. Stock, 728 F.3rd (U.S. Court of Appeals for the 3rd Circuit 2013). See also U.S. v. Martinez, 736 F.3d 981 (U.S. Court of Appeals for the 11th Circuit 2013) (`true threats’ are statements that contain a `serious expression of violent intent’).

The Court of Appeals then took up the issue of whether Metzinger’s tweets were “true threats”, noting that “[n]either the Missouri legislature nor the Missouri Supreme Court has defined the term `threat as it is used in § 574.115.”

But it also noted that another district of the Missouri Court of Appeals addressed this issue in In the Interest of C.G.M., II v. Juvenile Officer, 258 S.W.3d 879 (2008): “In C.G.M., the Western District held that a statement is not a true threat when a listener could not reasonably consider the statement to be a serious expression of an intent to cause injury to another.

This court then held that

[h]ere, as in C.G.M., the language of the tweets at issue demonstrated on their face that they were not serious expressions of an intent to cause injury to another. The parties do not dispute that [Metzinger] published the statements on Twitter during the 2013 World Series. In his tweet of October 21, 2013, [he] referred to `tailgating . . . during games 3–4–5’ and included the following: `# WorldSeries. # STLStrong # GoCards # postseason’ . . .

[His] tweets of October 22, 2013 also contained `# WorldSeries.’ [Metzinger’s] tweets facially reveal that they were made in the context of sports rivalry, an area often subject to impassioned language and hyperbole. While [his] references to pressure cookers and allusions to the Boston Marathon bombing were tasteless and offensive, the context of his tweets was such that a reasonable recipient would not interpret them as serious expressions of an intent to commit violence. . . .

The Court of Appeals therefore held that

the trial court properly considered the language of the four tweets and, under the rather unique circumstances of this case, correctly determined, as a matter of law, that the four tweets did not constitute `true threats’ and, therefore, were improperly criminalized. Accordingly, the information did not charge the offense of making a terrorist threat within the meaning of § 574.115 and the trial court did not err in dismissing the information for insufficiency. Point three is denied.

 It therefore affirmed the trial judge’s ruling. You can, if you are interested, read more about the case in the articles you can find here and here.

This post originally appeared on the Cyb3rCrim3 blog and is reproduced with permission and thanks.


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