School Murder Post on Snapchat Meets Threat Barrier, Court Says

A student with White supremacist writings in his notebook and school shooting tutorials in his browser history leaped beyond the protections of free speech when he posted a “joke” Snapchat picture of himself holding an airsoft gun, a Florida appeals court ruled Wednesday.

A juvenile’s conviction for “written threats to kill or do bodily harm” over social media didn’t violate his First Amendment protections because fellow students were reasonably concerned for their safety when they saw his picture with the caption, “Don’t go to school tomorrow,” the Florida Fourth District Court of Appeal ruled.

“While the ‘threat’ burden of proof has evolved as times and laws have changed, the evidence here supported the trial court’s finding of guilt,” said Judge Melanie G. May, writing for a unanimous panel.

The case is a Florida appellate court’s first application of a recent US Supreme Court opinion, Counterman v. Colorado, in which the justices narrowed the test for what speech should be considered a “true threat” and outside of First Amendment protections. In that June opinion, the justices said Colorado’s prosecution of a musician’s cyber-stalker wasn’t lawful because the evidence didn’t show some subjective understanding that the statements the stalker made were threatening, and didn’t show his recklessness that could cause bodily harm.

Around school the student carried a black notebook with a kill list, thoughts on racial minorities, and notes on the Columbine school shooting. When police reviewed his browser history, it revealed searches for Nazis, school shooters, and terrorism.

The juvenile on trial in Florida asked the court to find the state’s online threats law, beefed up following the 2018 school shooting in Parkland, Fla., to be unconstitutionally overbroad. The appeals court disagreed, because the state statute targets unprotected “true threats” that fit within the new US Supreme Court test.

“This is because section 836.10 has a limited objective—to punish ‘threats’ of violence sent through electronic social media,” May said. “Because section 836.10 deals only with ‘threats’ to commit a violent act, it does not violate the juvenile’s First Amendment rights.”

And the evidence was sufficient to bring this case from legal transgressive internet behavior to a true threat, the court said.

“One thing is certain, regardless of the test employed, the evidence in this case was sufficient to satisfy the tests,” laid down by the US Supreme Court.

The case is B.W.B v. Florida, Fla. Dist. Ct. App., 4th Dist., No. 4D2022-1121, 11/15/23.