The Michigan Court of Appeals has reversed an earlier ruling and held the state’s terroristic threats law does not violate the First Amendment.
Defendant Michael Kvasnicka was charged based on a social media message sent to a student saying he would attack her school. The case background cited in an earlier decision said Kvasnicka sent a message to a young girl that she was “not gonna be laughing once I come to your school and shoot it up or blow it up like [C]olumbine.”
Kvasnicka was charged in Wayne County of making a terroristic threat and using a computer to commit a crime. He challenged the terrorism charge as impinging on free speech rights. The appeals court agreed with Kvasnicka in a previous decision but reconsidered after the Michigan Supreme Court raised questions.
The appeals court panel unanimously upheld the law and cleared the way for the case to go to trial. Special Assistant Wayne County Prosecutor Timothy Baughman, who argued the case before the appeals court and the Supreme Court, said it makes no difference whether Kvasnicka intended to carry out the threat.
“What you have to do is explain to the jury that a person has to have at least what’s called reckless intent, that they have to understand that the person they are saying the language could take it as a threat and they go ahead and say it anyway,” he told Michigan Public Radio. “You have to find that they said these words knowing a reasonable person could take them as a threat and went ahead and did it anyway.”
Baughman said the key is how a “reasonable person” would perceive the comments.
“If I’m making a joke, if it is hyperbole or a political statement, we all understand there are many statements where words like ‘kill’ can be used and they’re not threats because that intent isn’t there,” he said. “But if I know you can take it that way and I go ahead, then the First Amendment doesn’t protect what I’ve said.”
In a footnote to the opinion, the appeals court suggested the Legislature revisit the terroristic threats law to make the language more specific.
An attorney for Kvasnicka could not be reached for comment, including on plans for next steps. The defense could decide to file other challenges to the state’s case before a trial is scheduled.
