The Alaska Court of Appeals reinstated Friday the charges of a man who threatened Anchorage Assemblyman Dick Traini on his Facebook page during Traini’s 2013 re-election campaign.
Shane Kidd Borowski was charged with second-degree harassment after posting, “Your going to get assassinated,” [sic] to Traini’s campaign page.
District Court Judge Pamela Washington dismissed the charge on a pre-trial motion from Borowski, concluding that his speech was a “[political] statement … to [the] public” protected under the First Amendment and did not constitute a true threat.
“[Borowski’s] choice of venue [for his speech] does not indicate [an] intent to personally threaten Traini[,] nor does it indicate [that Borowski] had the sole intent to harass or annoy,” she said.
Washington declared that speech constitutes a true threat if “the [person] means to communicate a serious expression of [their] intent to commit an act of unlawful violence to a particular individual or group”.
“As we explain in this opinion, the law is to the contrary: a person can be prosecuted for communicating a threat of harm to another person even if the speaker does not seriously intend to carry out the threat, so long as the speaker is aware that people would reasonably interpret the words as a real threat of harm,” the Court of Appeals wrote Friday.
The Court of Appeals referenced Virginia v Black, a 2003 U.S. Supreme Court decision dealing with the burning of crosses with intent to intimidate.
“‘True 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 Supreme Court wrote, clearly influencing Washington’s ruling.
But the Supreme Court went on to say,
The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.” Intimidation in the constitutionally proscribable 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.
Accordingly, Alaska’s second-degree harassment “statute does not penalize the intent to inflict physical injury or non-consensual sexual contact,” the Court of Appeals noted Friday. “Rather, it penalizes the act of communicating with another person in a way that the speaker knows will be understood as a threat to inflict these harms, if the speaker’s intent in making this communication is to harass or annoy another person.” (emphasis in original)
The Court of Appeals said Washington also erred by making pre-trial findings of fact and for not considering facts in the light most favorable to the State after Borowski filed his motion to dismiss.
The case is back in district court.