The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
So the Michigan Court of Appeals held yesterday, in In re. J.P. (written by Judge Elizabeth L. Gleicher, joined in full by Judge Brock A. Swartzle, who also wrote a brief concurrence, and concurred with by Judge Michael J. Kelly as to everything except the first two paragraphs):
Young teenagers sometimes make poor judgments born of impetuosity, immaturity, and an inability to foresee the painful consequences of their actions. Here, four teenaged girls decided they did not like a 13-year-old boy, and fantasized via group text messages about killing him, his dog, and even his goldfish. The texts are not pretty or clever. They also were not sent to the boy. He learned the content of the hateful messages from his mother, and never actually read them.
The prosecutor charged one of the girls, respondent JP, with a violation of MCL 750.540e(1), which subjects those who send text messages intended to "terrorize, frighten, intimidate, threaten, harass, molest or annoy" another person to criminal punishment. Despite that no evidence supported that respondent intended that the boy would ever see the text messages, a jury adjudicated her as responsible for the violation and the trial court entered a dispositional order. Because no evidence or reasonable inference suggests that the teenagers intended to terrorize, frighten, intimidate, threaten, harass, molest or annoy the teenaged boy discussed in their texts, we vacate the orders of adjudication and disposition….
No evidence supports that respondent intended to harass, terrorize, annoy, or otherwise interfere with S's peace and quiet. Rather, the great weight of the evidence demonstrates precisely the opposite: none of the Snapchat participants intended that S would ever read or see the texts, or would ever feel threatened by their existence…. [E]ven if a recipient does receive a … communication, the "listener's subjective perceptions, without the necessary intent on the part of the caller" do not make out the crime. The focus remains on the intent of the sender.
The prosecution asserts that respondent's "[m]alice is apparent from the graphic nature of the threats and the attempt to build consensus on hating [S] with whoever else was in the group chat." This argument disregards the language of the statute, which requires that the maker of a threat intend that the threat disturb or otherwise negatively affect "another person." The nature of the language, standing alone, does not make out the crime, nor does the fact that violence was discussed…. MCL 750.540e survives constitutional scrutiny precisely because it pairs speech with a speaker's malicious intent that the content of the speech be communicated to a listener, and some form of follow-through on that intent.