State v. Kilburn
151 Wash. 2d 36, 84 P.3d 1215 (2004)
Premium Feature
Subscribe to Lexplug to listen to the Case Podcast.
Rule of Law:
A statement constitutes a 'true threat' unprotected by the First Amendment only if a reasonable person in the speaker's position would foresee that the statement would be interpreted as a serious expression of intent to inflict bodily harm. The speaker's subjective intent to actually carry out the threat is not required, but the entire context, including a joking demeanor, is critical to the analysis.
Facts:
- Martin Kilburn, an eighth-grade student, was sitting next to his classmate, K.J., in an accelerated reading class at Mount Baker Middle School.
- Kilburn and K.J. had known each other for two years, had a friendly relationship with no prior conflicts, and were chatting and giggling at the end of class.
- While discussing a book that had military men and guns on its cover, Kilburn said to K.J., “I’m going to bring a gun to school tomorrow and shoot everyone and start with you.”
- Kilburn then added, “maybe not you first,” while half-smiling, giggling, or laughing.
- K.J. initially responded with “yeah right,” thinking Kilburn might be joking but was not sure.
- Later that evening, after reflecting on the statement in the context of recent school shootings, K.J. became increasingly afraid that Kilburn was serious.
- K.J. told her parents about the statement, and her mother called 911.
Procedural Posture:
- The State charged Martin Kilburn with felony harassment in King County juvenile court, which served as the court of first instance.
- Following a bench trial, the trial court adjudicated Kilburn guilty.
- Kilburn (appellant) appealed the conviction to the Washington Court of Appeals, an intermediate appellate court.
- The Court of Appeals affirmed the trial court's judgment in an unpublished opinion.
- The Washington Supreme Court granted Kilburn's (petitioner's) petition for discretionary review.
Premium Content
Subscribe to Lexplug to view the complete brief
You're viewing a preview with Rule of Law, Facts, and Procedural Posture
Issue:
Does a statement made in a joking context, where a reasonable person in the speaker's position would not foresee it being taken seriously, constitute a 'true threat' unprotected by the First Amendment for the purposes of a felony harassment conviction?
Opinions:
Majority - Madsen, J.
No. A statement made under circumstances where a reasonable person in the speaker's position would not foresee it being taken as a serious expression of intent to inflict harm does not constitute a 'true threat' and is protected speech under the First Amendment. The court affirmed that the test for a 'true threat' is an objective one, focusing on what a reasonable speaker would foresee, and does not require proof that the speaker actually intended to carry out the threat. However, to protect First Amendment rights, appellate courts must conduct an independent review of the 'crucial facts' to determine if speech is unprotected. In this case, the context—including Kilburn's friendly relationship with K.J., his joking demeanor, his laughter, and the conversational setting—demonstrates that a reasonable person in Kilburn's position would not have foreseen the statement being interpreted as a serious threat. Therefore, the evidence was insufficient to establish a 'true threat,' and the felony harassment conviction must be reversed.
Dissenting - Owens, J.
Yes. The statement constituted a 'true threat' because a reasonable person in the speaker's position would have foreseen that it would be interpreted as a serious threat. While agreeing with the majority's articulation of the objective legal standard, the dissent disagrees with its application to the facts. Given the school policy against such statements and the prevailing societal fear of school shootings, a reasonable person in Kilburn's position would foresee that a threat to 'shoot everyone,' even if made while 'kind of giggling,' would be perceived by a listener as a serious threat. K.J.’s subsequent fear was a reasonable and foreseeable reaction. Therefore, the statement was a 'true threat' unprotected by the First Amendment, and the evidence was sufficient to uphold the conviction.
Analysis:
This decision solidifies Washington's adoption of the objective, reasonable-speaker standard for determining a 'true threat,' clarifying that the speaker's intent to carry out the threat is irrelevant. More significantly, it establishes a heightened standard of appellate review for 'true threat' cases, requiring an 'independent review of crucial facts' to safeguard First Amendment protections. This makes it more difficult for the state to secure convictions for ambiguous or contextual statements, as courts must now look beyond the listener's subjective fear and closely scrutinize the entire context in which the words were spoken. The ruling emphasizes that context, including a joking demeanor, can prevent a statement from being legally classified as a criminal threat.
