MySpace, WhoseSpace? The Impact of Semi-Private

Transcription

MySpace, WhoseSpace? The Impact of
Semi-Private Social Media on Threats and
the First Amendment
Melissa A. Whitehead*
ABSTRACT
The evolution of social networking and the Internet has made it
effortless to communicate to a global audience. This advancement has
presented new challenges to the court and appears to infringe on First
Amendment rights, as exemplified in Holcomb v. Commonwealth. The
Virginia Court of Appeals held that Holcomb knowingly communicated a
written threat directed to his ex-girlfriend, in violation of Virginia Code
section 18.2-60(A)(1), when he posted rap lyrics onto his MySpace page.
This holding conflicts with the fundamental principle that prohibits any law
leading to self-censorship, even if the communication is disruptive,
offensive, vulgar, or insulting. A successful democracy and the promotion
of an informed citizenry are too much to sacrifice in exchange for any
benefits of the criminalization of a potentially innocent lyrical posting.
Candidate for Juris Doctor, New England Law I Boston (2013). B.A., Geology,
Middlebury College (2008). 1 would like to thank the editors and associates of Volumes 38
and 39 of New England Journal on Criminal and Civil Confinement for their diligent
assistance throughout this process. I would also like to thank my family and friends for all
their support.
CRIMINAL AND CIVIL CONFINEMENT
Vol. 39:193
I. INTRODUCTION
The proliferation of social networking interfaces on the Internet has
revolutionized the way society communicates. Popular websites like
Facebook, MySpace, and YouTube have virtually opened the doors into the
private lives of individuals for a global audience. Users can effortlessly
post their thoughts, photos, and music; join groups;
play games; and
2
develop relationships all with the click of a mouse.
Social media and its expanding prominence have required the law to
evolve and have presented new challenges to the court, 3 particularly in the
disciplines of employment law, family law, and education law. While
these advancements have been largely beneficial, a side effect has been a
blurring of the line distinguishing protected speech and speech that can be
regulated.5 As a result, a host of new constitutional questions have emerged
concerning the privacy and protection of speech that fall within the First
Amendment. Some of these concerns are presented in Holcomb v.
Commonwealth.6
In Holcomb, John Andrew-Collins Holcomb was charged with
"knowingly communicating a written threat in violation of Virginia Code
[section] 18.2-60(A)(1). ''7 Prior to his arrest, Holcomb was involved in a
custody battle with the victim, Miranda Rollman. 8 During the custody
dispute, Holcomb posted detailed "incendiary messages" on his MySpace
profile, for which he was ultimately arrested. 9 Rollman explained that she
thought these messages were directed at her because they referenced her
maiden name and specific incidents that occurred during the course of her
relationship with Holcomb. 10 She stated that she took the posts seriously
and was scared that she would be killed and her daughter taken away from
her."' However, on cross-examination, Rollman admitted that Holcomb
1.
See Laurie L. Baughman, Friend Request or Foe? Confirming the Misuse of
Internet and Social Networking Sites by Domestic Violence Perpetrators,19 WIDENER J.
PuB. L. 933, 933-34 (2010).
2.
Id.at 934.
3. Id. at 956 (discussing the legal challenges presented by social media in cases of
domestic abuse and harassment).
4.
See infra Part IV.
5.
See, e.g., infra Part V.
6.
See Holcomb v. Commonwealth, 709 S.E.2d 711, 711 (Va. Ct. App. 2011)
(addressing the difficulties in proving the elements of "knowingly communicating a written
threat" in the context of social media).
7. Id. at 712.
8. Id.
9.
Id.at 712-13.
10.
Id. at 713.
11.
Id.
2013
MYSPA CE, WHOSESPA CE?
described himself as a lyricist of rap music and speculated that he
considered his posts as "one long song." 12 Additionally, she conceded that
Holcomb's MySpace page contained many different things other than these
posts. 13
Holcomb testified that he meant the words to be a form of art and
characterized them as "songs" or "clever limericks." 14 He testified that he
had been writing songs since he was eleven years old and posted them on
his MySpace profile because he considered it a medium to express
himself.' Although he posted the lyrics "for the express purpose of it being
seen by other people," he denied ever intending or inviting Rollman or her
family to read his posts. 16 He also testified that he attempted to block
Rollman from accessing his17profile, but after failing to block her, he
deleted his profile altogether.
The district court held that Holcomb violated Virginia Code section
18.2-60(A)(1); thus, he was guilty of a Class 6 felony. 18 The court reasoned
that the posts constituted "very veiled threats" because there was a
sufficient nexus between the posts and the "individual situation" of
Holcomb and Rollman. 19 The Virginia Court of Appeals upheld the district
court's decision, stating that the statutory requirement was satisfied
because there was sufficient evidence that Holcomb intended to make and
communicate the alleged threat, and that the alleged threat was made and
communicated. 20 The court agreed there was a sufficient nexus between
Holcomb's posts and the victim because they expressed his violent desires
with specific details about Rollman and her family. 2' Although Holcomb's
past messages were of a similar style, the court reasoned that the messages
did not contain the same content as the ones at issue.22 Moreover, the posts
placed the victim in "reasonable apprehension of death or bodily injury"
because of the threatening nature of the messages. 23 Neither Holcomb nor
the court addressed whether
his MySpace postings were protected under
the First Amendment. 24
12.
Id.
13.
14.
15.
Id.
Id.
Id.
16.
17.
Id. at 713-14.
Id. at 714.
18.
Id. (internal quotation marks omitted); VA. CODE § 18.2-60(A)(1) (2002).
19.
Holcomb, 709 S.E.2d at 714 (internal quotation marks omitted).
20.
Id. at 715-17.
21.
Id. at 716.
22.
23.
24.
Id.
Id. at 716-17.
See id. at 712.
Vol. 39:193
The Holcomb decision ignored essential components of the "true threat"
test, failing to afford Holcomb First Amendment protections solely because
his postings were unpleasant and publically available. Part II gives an
overview of Virginia Code section 18.2-60(A)(1) and explains what
constitutes a sufficiently communicated threat under the Code. Part III
offers a brief overview of the First Amendment. Part IV describes the
evolution of technology and its impact in family law, school speech, and
artistic expression. Part V explains the "true threat" factors enumerated by
the Supreme Court and the subsequent tests adopted by the circuit courts.
Additionally, the facts of Holcomb are applied to determine whether his
statements would be considered "true threats" under each of these specified
provisions. Part VI analyzes the strength of asserting First Amendment
protections of Holcomb's statements under the Supremacy Clause and
suggests potential reasons why Holcomb did not attempt to raise a First
Amendment argument. Part VII criticizes the Holcomb decision and
highlights potential problems resulting from the holding.
II. OVERVIEW OF VIRGINIA CODE SECTION 18.2-60(A)(1)
A.
Sufficient Communication Under Section 18.2-60(A)(1)
Section 18.2-60(A)(1) of the Virginia code is the relevant section
applied in Holcomb and prohibits threats of death or bodily injury to a
25
person.
It states:
Any person who knowingly communicates, in a writing, including an
electronically transmitted communication producing a visual or
electronic message, a threat to kill or do bodily injury to a person,
regarding that person or any member of his family, and the threat places
such person in reasonable apprehension of death or bodily
26 injury to
himself or his family member, is guilty of a Class 6 felony.
When interpreting statutes that protect against threats of death or bodily
injury like section 18.2-60(A)(1), the meaning of threat and what
sufficiently communicates a threat has been the subject of much debate
27
with the recent surge of social media.
Holcomb asserted that because he published his song lyrics on MySpace,
a public domain that could potentially be viewed by anyone, he did not
sufficiently communicate the threat because he did not specifically send the
25.
26.
27.
VA. CODE § 18.2-60(A)(1) (2002).
Id.
See Baughman, supranote 1, at 956-63.
2013
posts to Rollman or direct her to view the posts. 2 8 The court rejected his
argument, stating that the statutory requirement is satisfied when there is
evidence that the defendant "intended to make and communicate the...
threat and that the ... threat was made and communicated., 29 The court
also relied on the Fifth Circuit's interpretation of the federal code.3 ° The
Fifth Circuit noted that "communication of a threat" is a general intent
crime because the specific intent to threaten a particular person is not
required to sufficiently communicate a threat. 3 1 The "character and context
of the [alleged] threat" communicated is more significant than the intent of
32
the speaker.
In Summerlin v. Commonwealth, the Virginia Court of Appeals stated
that a threat is sufficiently established if the communication "reasonably
cause[s] the receiver to believe that the speaker will act according to his
expression of intent[,]" through words or conduct. 33 The receiver of the
threat does not have to be the intended victim for the court to decide that
the threat was successfully communicated.34 For example, communications
that have been intercepted before reaching the intended victim can still be
considered a sufficient threat, satisfying the statutory requirement. 35 "The
statute is concerned with neither the mode of communication nor the
number of recipients of the alleged threatening communication." 3 6 The
Fifth Circuit notes that the character and context of the threat
37
communicated is more significant than the intent of the speaker.
B.
Sufficiency of a Threat Under Section 18.2-60(A)(1)
The Holcomb court defined "a threat, in the criminal context, . . [as] a
38
communication avowing an intent to injure another's person or property."
28.
Holcomb, 709 S.E.2d at 714.
29.
Id.(quoting Summerlin v. Commonwealth, 557 S.E.2d 731, 736 (Va. Ct. App.
2002) (internal quotation marks omitted).
30.
See id. at 714-15 (citing United States v. Morales, 272 F.3d 284, 287 (5th Cir.
2001)).
31.
Morales, 272 F.3d at 287 (quoting United States v. Myers, 104 F.3d 76, 81 (5th
Cir. 1974)).
32.
Id.at 288.
33.
See Summerlin, 557 S.E.2d at 736 (quoting Perkins v. Commonwealth, 402 S.E.2d
229, 234 (Va. Ct. App. 1991)).
34.
See Holocomb, 709 S.E.2d at 715.
35.
Id at 714-15 (citing Keyes v. Commonwealth, 572 S.E.2d 512, 516 (Va. Ct. App.
2002)).
36.
Id.at 714.
37.
Morales, 272 F.3d at 287.
38.
Holcomb, 709 S.E.2d at 715 (quoting Perkins v. Commonwealth, 402 S.E.2d 229,
234 (1991)).
Vol. 39:193
The Code also requires that "the threat place[] such person in reasonable
39
apprehension of death or bodily injury to himself or his family member."
Similarly, the Fifth Circuit defines a "true threat" as a statement made
knowingly and intentionally, that "in its context[,] would have a reasonable
tendency to create apprehension that its originator will act according to its
tenor." "A threat is knowingly made if the [speaker] ...comprehends the
meaning of the words [spoken]." 4 1
To determine whether a threat was communicated, the fact-finder
reviews the totality of the circumstances. 4 2 The threat does not need to be
direct but can be in the form of a "'veiled statement' [that] impl[ies]
injury.' 43 "The Supreme Court... held that 'a statute... which makes
criminal a form of pure speech, must be interpreted with the commands of
must be distinguished
the First Amendment clearly in mind .... [A] threat
44
speech."
protected
constitutionally
from what is
1II.
BRIEF OVERVIEW OF THE FIRST AMENDMENT
The First Amendment states: "Congress shall make no law.., abridging
the freedom of speech... ."4 In 1997, the Supreme Court extended the
full protections of the First Amendment to Internet speech in Reno v.
American Civil Liberties Union.4 6 There is a firm conviction "embodied" in
American democracy that with a fully informed citizenry "wisdom and
justice are most likely to prevail. 47 Therefore, there is a compelling
interest to T8rohibit self-censorship and encourage the free flow of
information. In fact, "courts have not hesitated to remove the occasional
boulders that obstruct this flow' 4 9 and have "remain[ed] profoundly
VA. CODE § 18.2-60(A)(1) (2002).
Morales, 272 F.3d at 287 (quoting United States v. Myers, 104 F.3d 76, 79 (5th
40.
Cir. 1974)).
Id. (quoting United States v. Pilkington, 583 F.2d 746, 747 (5th Cir. 1978))
41.
39.
(internal quotation marks omitted).
42.
43.
44.
(1969)).
45.
46.
47.
1979).
48.
Dimaio v. Commonwealth, 621 S.E.2d 696, 702 (Va. Ct. App. 2005).
Id. (quoting Keyes, 572 S.E.2d at 516).
Morales, 272 F.3d at 287 (quoting Watts v. United States, 394 U.S. 705, 707
U.S. CONST. amend. I.
Reno v. ACLU, 521 U.S. 844, 849, 862 (1997).
Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1047 (2d Cir.
Id.
49.
Id. (citing Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964); Edwards v. Nat'l
Audubon Soc'y, Inc., 556 F.2d 113, 115 (2d Cir. 1977)).
2013
skeptical of government claims" that the state can restrict this fundamental
constitutional protection.
Despite the rationale of the First Amendment and the larger principles it
serves to protect, courts have recognized that not all expression
"enlightens" the citizenry-some expression presents tangible danger
without adding to intellectual or political life. 5 1 Thus, the Supreme Court
has "defined narrow categories of [speech] that a state may punish,"
52
removing these statements from the immunity of the First Amendment.
These categories include libel, obscenity, incitement, 53 "true threats,"
"fighting words," and child pornography. 54 Although the Court
distinguished these categories from protected speech, courts have taken
grave precautions to prevent the chilling of speech, even granting
questionable speech First Amendment protection. The Court56 considers
First Amendment rights to be fundamental to American society.
IV.
THE EVOLUTION OF TECHNOLOGY AND ITS IMPACT ON THE FIRST
AMENDMENT IN DIFFERENT AREAS OF LAW
A. Family Law
The increasing prominence of social media has inevitably impacted
family law cases, especially concerning divorce, custody, and protective
orders, and caused the courts to alter their approach when addressing these
issues. 57 The ease of submitting personal information about a client or an
adversary on social networking websites like Facebook, MySpace, and
Twitter necessitates that attorneys consider these avenues as a routine
evidentiary tool during the discovery process. 58 Such evidence can be used
to demonstrate the use of the Internet to send threats, stalk, or harass
victims. 59 Additionally, because the private lives of individuals are so
relevant in determining the outcome of family law cases, courts
50.
Id.at 1047.
51.
Id.
52.
Id. at 1047-48 (citing Chaplinksy v. New Hampshire, 315 U.S. 568, 572 (1942);
Gertz v. Robert Welch, Inc., 418 U.S. 323, 340 (1974)).
53.
Id.at 1048 (citing New York Times Co. v. Sullivan, 376 U.S. 254, 269 (1964);
Miller v. California, 413 U.S. 15, 15 (1973)).
54.
Jennifer E. Rothman, Freedom of Speech and True Threats, 25 HARV. J. L. & PUB.
POL'Y 283, 287-88 (2001) (internal quotation marks omitted).
55.
Thomas v. Bd. of Educ., Granville Cent. Sch. Dist., 607 F.2d 1043, 1048 (2d Cir.
1979).
56.
57.
See id (citations omitted).
Baughman, supra note 1 at 945.
58.
59.
See id at 956.
See, e.g., id at 958-59.
Vol. 39:193
increasingly accept this information after subjecting it to a high level of
scrutiny. 0 This type of evidence speaks to the fear instilled in victims
through the misuse of the Internet; however, family courts have yet to settle
extends to this type of
the question of whether First Amendment protection
61
speech on public or semi-public Internet forums.
B. Education Law and School Speech
Unlike the area of family law, where the courts have not addressed the
constitutionality of protecting Internet speech, the courts have addressed
and continue to address whether school officials have the authority to
regulate student speech in the area of education law and school speech.62
The Supreme Court has addressed school speech in four cases; 63 however,
they have yet to examine whether off-campus Internet student speech is
immune from the protection afforded by the First Amendment.
Alternatively, this issue has recently plagued the 64lower courts, and each
circuit seems to tackle the issue slightly differently.
60.
Id.at 945-46.
61.
Id. at 963-64.
62.
See, e.g., Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 574, 577 (4th Cir. 2011)
(holding that a school official may regulate student speech if the "speech interfered with the
work and discipline of the school" and "where such speech has a sufficient nexus with the
school."); Wisniewski v. Bd. of Educ. of the Weedsport Cent. Sch. Dist., 494 F.3d 34, 40
(2d Cir. 2007) (stating "foreseeability of both communication to school authorities ... and
the risk of substantial disruption is not only reasonable, but clear. These consequences
permit school discipline ....");J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d
847, 850 (Pa. 2002) (holding the school's "disciplinary action . . . did not violate [the
student's] First Amendment right to freedom.").
63.
See Morse v. Frederick, 551 U.S. 393, 397 (2007) (stating a restricted holding that
school officials can regulate student speech if it advocates illegal drug use); Hazelwood Sch.
Dist. v. Kuhlmeier, 484 U.S. 260, 272-73 (1988) (holding that school officials are entitled to
exercise greater control over student speech that bears the imprimatur of the school); Bethel
Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986) (holding that the school can regulate "lewd"
speech); Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 513 (1969) (holding
that school officials can regulate student speech if it "materially" and "substantially"
disrupts "the requirements of appropriate discipline in the operation of the school" and
"[invades] the rights of others.") (citations omitted).
64.
See, e.g., Kowalski, 652 F.3d at 574 (holding that "the school was authorized to
discipline [the student] because her [off-campus] speech interfered with the work and
discipline of the school."); Doninger v. Niehoff, 527 F.3d 41, 43-44, 53 (2d Cir. 2008)
(affirming the denial of a preliminary injunction against the school's disciplinary actions
because the off-campus student speech "created a foreseeable risk of substantial disruption
to the work and discipline of the school."); Wisniewski, 494 F.3d at 40 (stating
"foreseeability of both communication to school authorities . . . and the risk of substantial
disruption is not only reasonable, but clear. These consequences permit school discipline."); JS.
ex rel. H.S., 807 A.2d at 855-56, 858 (holding the school's "disciplinary action ... did not
2013
The Second Circuit held that a school is authorized to regulate student
speech if it is reasonably foreseeable that the speech would cause a material
and substantial disruption to the school.65 The Third Circuit concluded that
school authorities are not permitted to "punish students for off-campus
speech that is not school sponsored" and which did not cause a "substantial
disruption at school.",66 The Fourth Circuit held that a school can regulate
off-campus student speech if a sufficient nexus exists between the targeted
attack and the school, that results in a "foreseeable" material and
67
substantial disruption to the school's operation and the rights of others.
The Fifth Circuit stated that a school is not authorized to regulate student
speech generated off-campus where the student lacked the specific intent or
actively brought the speech on the premises because it was not a "true
threat." 68 The Seventh Circuit concluded that off-campus speech that is
disseminated on school premises can be regulated if it is foreseeable that
the speech would create a material and substantial disruption in the
operation of the school.6 9
violate [the student's] First Amendment right to freedom.").
65.
See Doninger, 527 F.3d at 50 (affirming the denial of a preliminary injunction
because school authorities can regulate the off-campus speech because it was reasonably
foreseeable that the speech would come to the attention of the school and cause a
"substantial disruption"); see also Wisniewski, 494 F.3d at 38-39 (dismissing Wisniewski's
civil rights claim because it found the school was authorized to regulate the off-campus
Internet-generated student speech when it was reasonably foreseeable that the speech would
come to the attention of the school authorities, whether or not the student intended to
communicate it to school authorities).
66.
J.S. ex rel. Snyder v. Blue Mountain Sch. Dist., 650 F.3d 915, 920, 933 (3d Cir.
2011) (holding that the school officials violated the student's "First Amendment free speech
rights" when "[the student] was suspended from school for [off-campus] speech [not related
to a school sponsored event] that indisputably caused no substantial disruption in school and
that could not reasonably have lead school officials to forecast substantial disruption in
school."), cert. denied, 132 S. Ct. 1097 (2012).
Kowalski, 652 F.3d at 577 ("[W]here such speech has a sufficient nexus with the
67.
school, the Constitution is not written to hinder school administrators' good faith efforts to
address the problem.").
68.
Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 617-18 (5th Cir. 2004)
(holding that school officials cannot regulate the student's speech because it was not
considered a threat since he did not take any action to bring his drawing on school premises,
instead it was "unwittingly" brought on campus by his brother).
69.
Boucher v. Sch. Bd. of Sch. Dist. of Greenfield, 134 F.3d. 821, 828-29 (7th Cir.
1998) (holding that the school can regulate speech of a student who advocated hacking into
the school's computer system because it was reasonably foreseeable that this would create a
material and substantial disruption and because the speech was distributed on school
premises).
C.
Vol. 39:193
Artistic Expression
The Supreme Court has long considered artistic expression protected
speech under the Constitution 70 and remains extremely reluctant to limit
speech that is considered serious literature, art, political speech, or has
scientific value. 71 The "expressive character" of artistic speech is fully
protected by the First Amendment because "'cultural life,' just like our
native politics, 'rest[s] upon [the] ideal' of governmental viewpoint
72
neutrality."
Perhaps the most notable attempt to restrict artistic expression on the
Internet occurred when the Supreme Court decided Ashcroft v. American
Civil Liberties Union.73 This case involved the second attempt by Congress
to criminalize certain Internet speech through the vehicle of the Child
Online Protection Act (COPA),7 4 which prohibited pictures, images,
recordings, writings, or any other material that would be considered
obscene from publication on the Internet. 75 The Court stated that when the
challenge is to restrict content-based speech, the Government's burden is to
prove that less restrictive alternatives are not as effective as the challenged
statute.76 It concluded that the government failed to show that the proposed
regulations of COPA are more effective than the less restrictive
77
alternatives.
V. WHAT CONSTITUTES A "TRUE THREAT"
A. The Supreme Court's Analysis of a "True Threat"
The "proliferation of... Internet speech has presented a broad spectrum
78
of scenarios concerning statements that may be considered a "true threat."
The Supreme Court first addressed "true threats" in Watts v. United
States, raising several factors for consideration in determining such
70.
See Nat'l Endowment for the Arts v. Finley, 524 U.S. 569, 602 (1998) (Souter, J.,
dissenting) (citations omitted).
71.
See United States v. Alvarez, 132 S. Ct. 2537, 2552 (2012) ("Laws restricting
false statements about philosophy, religion, history, the social sciences, the arts, and the like
raise such concerns, and in many contexts have called for strict scrutiny.").
72. Finley, 524 U.S. at 602-03 (Souter, J., dissenting) (alteration in original) (quoting
Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994)).
73.
Ashcroft v. ACLU, 542 U.S. 656, 661 (2004).
74. Child Online Protection Act, 47 U.S.C. § 231 (2006).
75.
Ashcroft, 542 U.S. at 661-62.
76.
77.
Id. at 666.
Id. at 673 (noting that blocking and filtering software are less restrictive
alternatives that provide the same purpose set out in COPA).
78.
79.
Rothman, supra note 54, at 286.
See Watts v. United States, 394 U.S. 705 (1969); Amy E. McCann, Are Courts
2013
threats including: "(1) whether the speech constitutes political hyperbole;
(2) the overall context in which the statement is made; (3) the reaction of
the listeners; and (4) whether or not the statement was conditional,
to occur. 8 °
especially if it was conditional on an event that was unlikely
The Court applied these factors in National Association for the
81
Advancement of Colored People v. Claiborne Hardware, where it held
that statements made during a rally were not considered "true threats"
because: (1) the speech was rhetorical hyperbole; (2) "the audience ... was
not the primary target of the alleged threat"; (3) there was little evidence
that the audience was threatened by the speech; and (4) there was no
82
Although the Court
suggestion that the threats would be acted on.
provided factors to aid in the determination of what is considered a "true
threat," 83 it never established a definition to avoid the possibility of
84
infringing on the fundamental rights provided by the First Amendment.
As a result, lower courts have developed their own tests.
B.
Circuit Court Tests to Determine Whether a Statement is a "True
Threat"
The lower courts use an "objective" reasonable person test to determine
whether a threat is a "true threat." 85 This legal standard varies slightly
among the circuits. 8 6 Most courts hold that the communication of a threat is
a general intent 87crime and do not require a specific intent to carry out the
proposed threat.
The First, Third, Sixth, Seventh, and Ninth Circuits all apply the
"reasonable speaker" test. 88 The First Circuit defined "[t]he appropriate
standard under which a defendant may be convicted for making a threat is
whether he should have reasonably foreseen that the statement he uttered
Taking Internet Threats Seriously Enough? An Analysis of True Threats Transmitted Over
the Internet, as Interpreted in United States v. Carmichael, 26 PACE L. REv. 523, 526
(2006).
80.
81.
82.
886).
83.
84.
85.
NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982).
Rothman, supra note 54, at 301 (summarizing Claiborne Hardware Co., 458 U.S.
McCann, supra note 79, at 526.
G. Robert Blakey & Brian J. Murray,
Threats, Free Speech, and the
Jurisprudenceof the Federal CriminalLaw, 2002 BYU L. REv 829, 938 (2002).
86.
87.
Circuits"
88.
Id.
Rothman, supra note 54, at 302 (stating "[s]ome judges on the Ninth and Fourth
think that the intent of the speaker should sometimes be considered).
Id. at 302-05.
Vol. 39:193
would be taken as a threat by those to whom it is made." 89 The standard is
objective, taking into account the "factual context in which the statement
was made" and not "the unique sensitivity of the recipient." 90 The Sixth
Circuit also requires 9that
the purpose of the threat is to achieve some goal
1
through intimidation.
The Second, Fourth, Fifth, Eighth, Tenth, Eleventh, and D.C. Circuits
apply the "reasonable recipient" test. 92 The "reasonable recipient" test as
utilized by the Fourth Circuit states that a defendant may be convicted for
communicating a threat if "an ordinary reasonable recipient who is familiar
with the context ... would interpret [the statement] as a threat." 93 The
Second Circuit requires that the listener believe the threat would be carried
out imminently in order for the defendant to be convicted. 94 In United
States v. Viejhaus, Viefhaus was convicted of communicating a threat when
he said that "fifteen cities would be bombed" in one of the messages
disseminated by his hotline for his white supremacy organization.9 5 The
court stated that it was not necessary that the defendant intended to carry
out the threat but rather those who heard the message reasonably believe
that an actual threat was made. 9 6 "It is the making of the threat ... that
97
violates the law."
Although the tests applied by the circuits vary considerably, the different
formulations rarely produce materially variable results. 98 The distinct tests
tend to affect the characterization of the jury instructions rather than the
type of evidence admitted. 9 9 Circuits that apply the "reasonable speaker"
test still admit evidence of the listeners' reaction but place less weight on
89.
Blakey & Murray, supra note 85, at 945 (quoting United States v. Fulmer, 108
F.3d 1486, 1491 (1st Cir. 1997)).
90.
Fulmer, 108 F.3d at 1491.
91.
Rothman, supra note 48, at 309 (citing United States v. Alkhabaz, 104 F.3d 1492,
1495-96 (6th Cir. 1997); see infra Part V.E.
92.
Rothman, supra note 54, at 304-06.
93.
Id. (referencing United States v. Roberts, 915 F.2d 889, 891 (4th Cir. 1990)).
94.
Rothman, supra note 54, at 306. In United States v. Francis,the Second Circuit
reversed the trial court's dismissal of an indictment against the defendant for transmitting
threats to kill the victim over the telephone when he stated that he was going to "blow[] the
victim's head off' and "slit the victim's throat." United States v. Francis, 164 F.3d 120, 121
(2d Cir. 1999). The court held that if the threat on its face, and in the context which it is
made, is so immediate as to convey an imminent prospect of execution, the defendant may
be convicted of communicating a threat. Id. at 123.
95.
United States v. Viefhaus, 168 F.3d 392 (10th Cir. 1999).
96.
97.
98.
99.
Id. at 395-96.
Id. at 396 (citation omitted).
Blakey & Murray, supra note 85, at 938.
Id.
2013
this type of evidence.10 0 In United States v. Fulmer, Fulmer was convicted
of threatening a federal agent when he left a telephone message for FBI
agent Egan regarding information about his father-in-law and brother's
involvement in a pension fraud scandal.' 0 ' The court ruled that no rational
jury could have found beyond a reasonable doubt that Fulmer's use of the
phrase "the silver bullets are coming" did not constitute a threat even
though Fulmer provided testimony that the phrase meant "a clear cut
simple violation of the law."' 1 2 The court noted that when determining
whether a threat was communicated, the recipient's interpretation and
reaction to the speech are relevant to the inquiry of the context of the
speech.10 3 Conversely, circuits that apply the "reasonable recipient" test
influence the jury by placing more weight on the listeners' reaction.104
C. Holcomb Analyzed Under the Supreme Court's "True Threat"
Factors
In Holcomb, the court stated that the "graphic and violent imagery" of
the postings "indicate[d] the threatening nature of the [posts]"; the specific
references to the couple's tumultuous history established that the posts
referred to Rollman. 105 However, under the factors identified by the
Supreme Court, Holcomb's lyrical posts may not be considered a "true
threat."
First, the lyrics on Holcomb's MySpace profile can be considered
hyperbole rather than intentional force because they were expressed out of
frustration stemming from the custody battle with Rollman. His selfdescribed status as a lyricist and established history of posting lyrics on
MySpace illustrate his propensity to exhibit his songs on his profile, as
opposed to the publication of a threat. 10 6 Additionally, Holcomb testified
that he did not have the express intention to make Rollman feel
07
threatened. 1
Second, the audience viewing the MySpace page was not the primary
target of the "threats." 10 8 Holcomb testified that he placed the material on
10 9
his profile "for the express purpose of it being seen by other people."'
100.
101.
102.
103.
104.
105.
106.
107.
108.
109.
Id.; see also United States v.Voneida, 337 F.App'x 246 (3d Cir. 2009).
United States v. Fulmer, 108 F.3d 1486, 1490 (1st Cir. 1997).
Id. at 1490, 1492.
Id.at 1500.
See Blakey & Murray, supra note 85, at 938-39.
Holcomb v. Commonwealth, 709 S.E.2d 711, 716 (Va. Ct. App. 2011).
Id.at 713-14.
Id.at 714.
See id at 713-14.
Id.at 714 (emphasis added).
Vol. 39:193
The audience to which he referred was the collective viewership of his
110
MySpace profile and not specifically Rollman or her family.
Additionally, he denied ever intending for Rollman to read his posts and
attempted to block her access to his profile."' Moreover, Rollman admitted
that the lyrics were "all on the front page for the world to see," suggesting
that she knew that Holcomb's target audience did not only consist
of her or
12
her family, but rather of other viewers of his MySpace page.1
Third, there is no indication that any other person who viewed
Holcomb's lyrics, besides Rollman and her parents, considered the content
of the posts threatening. 113 Finally, there is no evidence to suggest that
Holcomb acted on his communicated statements. 114 He denied ever
intending for his posts to be considered real, but rather considered them
"clever limericks." 115 There is nothing in the record indicating that he took
any steps to fulfill his violent posted desires. Instead, he deleted his
MySpace profile. 116 The fact that Rollman and her family assumed the
lyrics were real and took steps to avoid becoming "victims" was purely
based on their own speculation." 7 This evidence, viewed in the context of
the Supreme Court factors established in Watts, suggests the statements
made by Holcomb should not be considered "true threats."
D. Holcomb Analyzed Under the Varying Circuit Courts' "True
Threat" Theories
In Holcomb, the Virginia Court of Appeals applied the "reasonable
recipient" test specific to Rollman. 118 The court determined that it was
reasonable for Rollman to believe Holcomb's statements constituted a
sufficiently communicated threat. 119 However, under the objective
"reasonable recipient" test, the court should have placed more weight on
the context of the speech and the totality of circumstances. 2 0 With this
focus clearly in mind, Holcomb can assert that an objective, reasonable
recipient would not consider the posts threatening because the structure is
clearly presented in a lyrical format, indicative of artistic expression rather
110.
1Il.
112.
113.
114.
115.
116.
117.
118.
119.
120.
Seeid. at713-14.
Id.
Id.at 713 (internal quotation marks omitted).
Id.at 716.
See id.
at 713-14.
Id.
Id.at 714.
See id.
at 716.
See id.
at 715-16.
Id.at 716-17.
See supra Part V.B.
2013
3MYSPA CE, WHOSESPA CE?
than threatening personal correspondence. 12 1 Additionally, Rollman's
awareness of Holcomb's reputation as a lyricist and established history of
posting lyrics on his MySpace profile suggests that Rollman should have
known that Holcomb was not communicating a threat. In this context, a
reasonable recipient would not consider Holcomb's statements to be a "true
threat" punishable by criminal conviction.
Alternatively, the "reasonable speaker" test focuses on the factual
context of the statement rather than the "sensitivity of the recipient."' 1 22 The
Fourth and Ninth Circuits require that a "speaker intended to threaten the
target." 123 Under this theory, Holcomb would be convicted if he had
124
reasonably foreseen that Rollman would consider the posts threatening.
Rollman testified that she knew Holcomb considered himself to be a
lyricist and knew he posted lyrics to his MySpace profile for others to
see. 125 Therefore, it is quite reasonable that Holcomb would not have
foreseen that Rollman would perceive these posts as a communicated
threat. Furthermore, although Holcomb admitted that the posts would be
very threatening if real, he testified that he did not intend to threaten
Rollman or her family, leaving the requirements under the Ninth and
1 26
Fourth Circuits unsatisfied.
E.
The Application of "True Threat" Analysis to Speech Generated
on Social Media Websites in Other Jurisdictions
The circuit courts developed the "reasonable person" tests described
above as late as the early nineties, prior to the proliferation of the
Internet. 127 In 1997, the courts were first faced with one of the most
popular Internet related threat cases in United States v. Alkhabaz. 128 In
Alkhabaz, the defendant, Abraham Jacob Alkhabaz, using the name Jake
Baker, posted a number of fictional stories on a group website and
exchanged e-mails with Arthur Gonda, "express[ing] an interest in sexual
violence against women and [young] girls" in both forums. 12 9 The Court of
Appeals for the Sixth Circuit applied the "reasonable person" test to
Baker's speech, stating that a defendant would be found guilty if "a
reasonable person (1) would take the statement as a serious expression of
121.
See Holcomb, 709 S.E.2d at 713.
122.
123.
124.
125.
126.
127.
128.
129.
United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997).
See supra Part V.B.
Holcomb, 709 S.E.2d at 713.
Id.at 714.
See Rothman, supranote 54, at 302-05.
See United States v. Alkhabaz, 104 F.3d 1492,1493 (6th Cir. 1997).
Id.
Vol. 39:193
an intention to inflict bodily harm (the mens rea), and (2) would perceive
such expression as being communicated to effect some change or achieve
some goal through intimidation (the actus reus).,' 130 Applying this
interpretation, the court concluded that the communications between Baker
and Gonda did not constitute a threat, but rather was an attempt to "foster a
friendship."' 13' It stated that even if a reasonable person considered the
communications as a threat, no reasonable person would perceive Baker's
communications
to "effect some change or achieve some goal through
' 132
intimidation."
Subsequent to the Alkhabaz holding, recent Internet speech cases have
considered speech published on social media websites like Facebook,
MySpace, and YouTube. In United States v. Jeffries, the Sixth Circuit was
presented with a defendant who posted a music video on YouTube entitled
"Daughter's Love."' 133 In this video, the defendant expressed his
dissatisfaction with Chancellor Moyers, the judge presiding over his
custody trial (although he never mentions the judge by name). 134 The court
used the reasonable person standard applied in Alkhabaz and convicted the
defendant, holding that a reasonable person would consider the video as an
attempt to intimidate Chancellor Moyers and
influence his future rulings
35
regarding the defendant's custody dispute. 1
In United States v. Voneida, the defendant posted violent statements on
his MySpace profile, threatening acts of violence on the Virginia Tech
campus shortly after the Virginia Tech Massacre of 2007.136 The court
applied the reasonable person test and convicted Voneida, stating that a
rational jury could reasonably construe that the statements made only two
137
days after the Virginia Tech shootings were a "true threat."'
In United States v. Clemens, the defendant sent "two e-mails to two
separate recipients ...
containing a threat to injure the respective
recipient."'138 The e-mails contained statements like "Pow! Bang! Spat! I
really, truly and sincerely wish you were dead," and "Oh, how I wish a 10
ton I-beam would fall on you ...!,,139 The court applied the "reasonable
130.
Id. at 1495.
131.
Id. at 1496.
132.
Id.
133.
United States v. Jeffries, No. 3:10-CR-100, 2010 WL 4923335, at *1 (Tenn. E.
Dist. Ct. Oct. 22, 2010).
134.
135.
Id. at *1-2.
Id. at *9.
United States v. Voneida, 337 F. App'x 246, 248 (3d Cir. 2009).
137.
Id. at 248-49.
138.
United States v. Clemens, No., 2011 WL 1540150, at *1-2 (Mass. Dist. Ct. Apr.
22, 2011).
139.
Id. at *2.
136.
2013
speaker" test and held that there was sufficient evidence to conclude that140a
reasonable jury could find that the statements constituted a threat.
Therefore, although some have argued that the inconsistencies must be
resolved in response to the proliferation of the Internet, 14 1 the courts have
not modified the application of these tests with consideration for new
technologies.
VI.
ASSERTION OF THE FIRST AMENDMENT DEFENSE
A. General Provisions of the Supremacy Clause
The basic premise of the Supremacy Clause is that "when state law
conflicts, or is incompatible, with federal law, federal law preempts the
state legislation." 14 2 Preemption can occur in three ways: (1) Congress
expressly preempts state law; (2) federal legislation is so comprehensive
and encompasses the entire field of law, "field143preemption"; and (3) federal
and state law conflict, "conflict preemption."
There is a presumption that state and local regulations "coexist with
federal regulations." 1 4 If a party alleges field preemption or conflict
preemption, the party asserting the allegation must present evidence to
overcome this presumption. 14 J The presiding court will examine the
language of the regulation to determine whether there is an express conflict
between federal and state or local law. 146 The court will also decide if the
state law "stands as an obstacle to the accomplishment and execution of the
full purposes and objectives of Congress"'147 or whether it would be
"impossible for... a party to comply with both state and federal law." 148 If
the presiding court affirmatively decides that ' any
of the provisions apply,
149
"the federal law preempts the state legislation."
140.
141.
Analysis
751, 781
Id.
Jeremy C. Martin, Deconstructing "Constructive Threats": Classification and
of Threatening Speech After Watts and Planned Parenthood, 31 ST. MARY'S L.J.
(2000).
142.
143.
144.
145.
White v. Baker, 696 F. Supp. 2d 1289, 1296-97 (N.D. Ga. 2010).
Id. at 1297 (internal quotation marks omitted).
Id.
Id. (citing Hillsborough Cnty. v. Automated Med. Labs., Inc., 471 U.S. 707, 716
(1985)).
146.
See id
147.
Id. at 1298 (quoting Fid. Fed. Say. & Loan Ass'n v. de la Cuesta, 458 U.S. 141,
152-53 (1982) (internal quotation marks omitted)).
148.
Id. (alteration in original) (quoting Fid. Fed Sav. & Loan Ass'n, 458 U.S. at 15253).
149.
Id.at 1295-97.
Vol. 39:193
B. Holcomb's Claim that His First Amendment Right Preempts
Section 18.2-60(A)(1)
There are three possible arguments why Holcomb should have asserted
that his First Amendment right preempts section 18.2-60(A)(1). Holcomb's
most compelling argument is that the federal law preempts section 18.260(A)(1) because section 18.2-60(A)(1) conflicts with his fully protected
constitutional right to free artistic expression under the First Amendment.
150
Courts remain cautious to censor speech, including artistic expression,
because controversial ideas and provocative debate communicate ideas
and
1 51
democracy.
a
enriching
to
critical
are
which
interest,
social
generate
Prior to the alleged threat, both Holcomb and Rollman considered
Holcomb a lyricist of rap music, 152 and both were aware of Holcomb's
established history of posting song lyrics on his MySpace profile. 153 The
fact that the most recent lyrics contained violent content and unpleasant
imagery do not remove them from the protection of the First
Amendment. 154 Furthermore, the Supreme Court noted that "esthetic and
moral judgments about art and literature ... are for the individual to make,
and not for the Government to decree."' 155 By censoring the aesthetic
judgment of the artist, cultural life is censored and the growth of
democracy is thwarted. Therefore, section 18.2-60(A)(1) conflicts with
Holcomb's First Amendment right to free artistic expression.
Second, the First Amendment is so comprehensively regulated that there
is no need for further statutory legislation. Holcomb can assert that the
broad language of the First Amendment expressly restricts the government
from censoring speech, and that case law implicitly defines the narrow
categories of seech that do not benefit from the protection of the First
Amendment. 15 Therefore, although section 18.2-60(A)(1) addresses the
criminal sanction of threats, it is an improper supplement to the First
Amendment.
Third, Holcomb can assert that the First Amendment expressly preempts
section 18.2-60(A)(1). The First Amendment states, "Congress shall make
150.
See Miller v. California, 413 U.S. 15, 23-24 (1973) (citing Interstate Circuit, Inc.
v. Dallas, 390 U.S. 676, 682 (1968)).
151.
152.
See Brown v. Entm't Merchs. Ass'n, 131 S.Ct. 2729, 2733 (2011).
Holcomb v. Commonwealth, 709 S.E.2d 711, 713 (Va. App. 2011).
153.
Id.
154.
See Brown, 131 S. Ct. at 2733 (quoting Ashcroft v. A.C.L.U., 535 U.S. 564, 573
(2002)); see Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 281 (1988).
155. Brown, 131 S. Ct. at 2733 (internal quotation marks omitted) (quoting United
States v. Playboy Entm't Group, 529 U.S. 803, 818 (2000)).
156.
See, e.g., White v. Baker, 696 F. Supp. 2d 1289, 1297 (N.D. Ga. 2010).
2013
no law... abridging the freedom of speech."' 157 The fundamental principle
reiterated by the Supreme Court is that "[the] government has no power to
restrict expression because of its message, its ideas, its subject matter, or
content."' 158 Under the objective reasonable person test, because Holcomb
can assert that his postings were not considered a threat in the context in
which they were made, 159 the speech still retains the protection of the First
Amendment and cannot be restricted. Therefore, the First Amendment
expressly preempts section 18.2-60(A)( 1).
C. Potential Reasons Why Holcomb Did Not Raise a First
Amendment Defense
There are several potential reasons why Holcomb failed to assert a First
Amendment defense. The Fourth Circuit applies the reasonable recipient
test to determine whether a statement is considered a "true threat."'160 The
application of the facts, weight of the evidence, and subsequent ruling by
the court remain within the subjective determination of the trier of fact.
Additionally, other jurisdictions that have been presented with very similar
facts and issues have
also failed to address the First Amendment
16 1
constitutional issue.
Moreover, in other areas of the law, there is a circuit split when dealing
with "threatening" speech on social media sites, most notably in school
speech cases. 162 The rise of social networking media has raised the issue of
whether school officials have the authority to regulate school speech
generated on the Internet. Students have used social networking sites like
Facebook and MySpace to post derogatory and distasteful messages,
videos, and drawings targeting other students, teachers, and
administrators. 163 The circuit courts differ in the applicable tests used to
157.
158.
U.S. CONST. amend. I.
Ashcroft, 535 U.S. at 573 (internal quotation marks omitted) (quoting Bolger v.
Youngs Drug Products Corp., 463 U.S. 60, 65 (1983)).
159.
Holcomb v. Commonwealth, 709 S.E.2d 711, 713 (Va. Ct. App. 2011) (examining
Holcomb's argument that because his speech was in the form of lyrics, it should be
considered artistic expression rather than a "true threat").
160.
161.
See, e.g., Rios v. Fergusan, 978 A.2d 592, 592, 595 (Conn. Super. Ct. 2008)
(discussing the personal jurisdiction of the court when issuing a restraining order against the
father of the applicant's child who posted a threatening video on YouTube).
162.
See, e.g., Kowalski v. Berkeley Cnty. Sch., 652 F.3d 565, 573-74, 577 (4th Cir.
2011) (holding that school authorities could regulate speech where there was an established
nexus between the speech and the school that "materially and substantially interfere[d]"
with the operation of the school and "the rights of others").
163.
See, e.g., Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34,
36 (2d Cir. 2007) (stating student [instant messaging] icon was a small drawing of a pistol
Vol. 39:193
determine whether evidence is sufficient to justify the regulation of student
speech.1 64 The inconsistency and subjectivity surrounding this issue may
have discouraged Holcomb from proposing that his speech was protected
by the First Amendment.
VII. CRITICISMS OF THE HOLCOMB DECISION
A.
Criticisms of the Holcomb Decision
There are several inherent problems with the statutory requirements of
section 18.2-60(A)(1). The absence of a specific intent requirement from
the speaker under the Code can "lead[] to a high probability that speech
will be punished when it should not be."' 16 5 This is especially true when a
third party with no connection to the recipient of the speech or the speaker
is involved. Messages can become lost in translation, increasing the
likelihood that speech will be taken out of context. 16 6 This is especially
relevant with text-based speech, which already suffers from a lack of
auditory and visual context. The court bases its interpretation on what the
potentially uninformed receiving party thought was communicated rather
than what the speaking party intended to communicate. Furthermore, an
Internet audience is a global audience, opening the floodgates to numerous
potentially frivolous lawsuits.
Additionally, without knowing the actual intent of the speaker, section
18.2-60(A)(1) punishes merely negligent speech. 167 While punishing
negligent speech may advance the policies proscribing "true threats," it is
inconsistent with the policies mandated by the First Amendment and
federal criminal law, which requires an individual's culpable state of
mind. 168 The danger with punishing negligent speech is that it can restrict
firing a bullet at a person's head above with dots representing splattered blood. Beneath the
drawing appeared the words 'Kill Mr. VanderMolen."'; Kowalski v. Berkeley Co. Sch., 652
F.3d 565, 573-74, 577 (4th Cir. 2011) (stating student's webpage contained "commentary
posted.., focused on Shay N.," ridiculing comments, and pictures).
164.
Doninger v. Niehoff, 527 F.3d 41, 43-44, 50 (2d Cir. 2008) (affirming the denial
of a preliminary injunction when it was reasonably foreseeable that the speech would cause
a material and substantial interference to the school environment); J.S. ex rel. Snyder v.
Blue Mountain Sch. Dist., 650 F.3d 915, 928-33 (3d Cir. 2011) (concluding that a school
could not regulate student speech when it was not generated or accessed on-campus and did
not cause a material and substantial disruption to the educational environment); Kowalski,
652 F.3d at 573-74, 577 (holding that school authorities could regulate speech where there
was an established nexus between the speech and the school that "materially and
substantially interfere[d]" with the operation of the school and "the rights of others").
165.
166.
See, e.g., id. at 315-16.
167.
168.
Seeid. at 316.
2013
future speech 169 thereby infringing on First Amendment principles. An
individual's right to free speech is personal and should not be defined by
how it affects others. 170 In fact, the impact on society and the resultant
effect is precisely the reason this freedom is so highly valued.17 1
Furthermore, the vague and subjective standard applied under the Code can
result in inconsistent judgments. 172 These inconsistencies indirectly restrict
speech because speakers
may refrain from voicing their thoughts in fear of
3
being convicted. 1'
Moreover, if the speaker uses a forum that he did not think the recipient
would use, the speaker did not necessarily knowingly communicate the
threat. 174 The use of a forum unknown to the recipient circumvents the
principal legal interest of section 18.2-60(A)(1) which is to prohibit the fear
generated from taking a threat seriously and the need to protect oneself 175
The only reason Rollman felt threatened was because she took the initiative
to seek out Holcomb's postings. 176 If Rollman's family did not inform her
of the posted lyrics and allowed her to use their computer to view them, she
would not have known about the lyrics and would not have been fearful of
Holcomb. 177 Holcomb should not be punished because of his merely
unpleasant expressions that he unknowingly communicated to Rollman.
The Holcomb court considered Rollman's reaction when determining
whether Holcomb violated the Code. 178 The consideration of the
hypersensitive recipient undercuts the objectivity of the reasonableness
requirement. 179 Moreover, the court should have looked at the speech in
context by viewing the totality of the circumstances. Under these
restrictions, Rollman should have known that Holcomb might publish
lyrics on his MySpace profile as he had an established history of doing so
prior to the lyrics at issue. I8
Finally, the court should have given sufficient weight to the likelihood
that Holcomb would carry out his threat. Failure to undergo this analysis
169.
170.
171.
172.
173.
(1979).
174.
175.
176.
177.
178.
179.
180.
Id.
See Rothman, supra note 54, at 317.
See Thomas v. Bd. of Educ., Granville Ctr. Sch. Dist., 607 F.2d 1043, 1048
Holcomb v. Commonwealth, 709 S.E.2d 711, 713 (Va. Ct. App. 2011).
See id.
Id. at 716-17.
Holcomb, 709 S.E.2d at 713-14.
Vol. 39:193
can and will result in the restriction of "valuable" speech. 18 1 Some of the
most influential speeches at the heart of the Civil Rights Movement were
construed as violent threats. 182 It is important to give sufficient weight to
the likelihood that the speech would be carried out because speech that
could seem83threatening on its face can be an invaluable tool of
democracy.1
VIII. CONCLUSION
Virginia Code section 18.2-60(A)(1) criminalizes the communication of
threats; 1 84 however, the subjective determinations by the court inevitably
result in both the criminalization of speech that should not be punished and
the unconstitutional restriction of speech.' 85 The application of section
18.2-60(A)(1) in Holcomb v. Commonwealth is an example of this
phenomenon.
In Holcomb, the court's factual analysis under the statutory requirements
resulted in a felony conviction. 186 The court of appeals failed to consider
several factors, including Holcomb's actual specific intent, the likelihood
that Holcomb would carry out his alleged threat, or whether the MySpace
forum used was sufficient to demonstrate that the speaker knowingly
communicated the threat. 187 Alternatively, the court placed too much
consideration on Rollman's subsequent reaction to Holcomb's posts, which
she sought herself. 188 By failing to consider these factors, and charging
Holcomb with knowingly communicating a threat when his specific intent
was to publish his music on a forum where it can be seen, the Code
infringes on Holcomb's First Amendment freedom, a freedom that the
Supreme Court has rightly been overly cautious to restrict.' 8 9 The Holcomb
decision is a step in the wrong direction, contributing to the self-censorship
of Holcomb and others, which is ultimately unconstitutional.
181.
182.
Id. at 321-22.
183.
184.
185.
See id.
VA. CODE ANN. § 18.2-60 (2002).
186.
Compare Holcomb v. Commonwealth, 709 S.E.2d 711, 714 n.2 (Va. Ct. App.
2011), with id at 717.
187.
See id. at 714-15.
188.
189.
1979).
See id. at 715.
Thomas v. Bd. of Educ., Granville Ctr. Sch. Dist., 607 F.2d 1043, 1047 (2d Cir.

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