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Defense win: Social media posts mixing photos of guns and a crowded theatre was protected speech, not a “true threat”

Town of Brookfield v. Martin M. Gonzalez, 2021AP218, District 2, 10/27/21 (one-judge decision; ineligible for publication); case activity (including briefs)

Gonzalez posted some photos on Instagram as a “story,” a series of shorter, more casual, less permanent images or posts than standard posts on a user’s Instagram feed (so we’re told). The first photo showed a ticket to an upcoming movie at a Brookfield cinema. The second showed loose bullets and a hand holding a loaded magazine. The third showed the inside of a darkened movie theater. (¶3). This “story” led to Gonzalez being convicted for violating the municipality’s disorderly conduct ordinance, a conviction the court of appeals now vacates.

As it happens, Bartelt, an acquaintance of Gonzalez and one of Gonzalez’s 300 social media followers, was in the very theater Gonzalez was. Shortly before the movie started, he saw Gonzalez’s Instagram story and realized he and the friends with him were visible in the photo of the theater. He then looked at Gonzalez’s Snapchat account and saw a recently posted photo of a hand holding a handgun with a loaded magazine nearby. While he didn’t believe Gonzalez was directing the posts at him or even knew he was in the theater, Bartelt was “troubled” and alerted security, who called police. Gonzalez was surprised when they arrived and arrested him. He had no weapon with him. (¶¶4-7).

Gonzalez’s social media posting is protected by the First Amendment unless it amounts to some species of unprotected speech—for instance, a “true threat,” which is a statement that, considered under all the circumstances, a speaker would reasonably foresee a listener interpreting as a serious expression of a purpose to inflict harm, rather than as, for instance, hyperbole, jest, innocuous talk, or expressions of political views. State v. Douglas D., 2001 WI 47, ¶34, 243 Wis. 2d 204, 626 N.W.2d 725; State v. Perkins, 2001 WI 46, ¶29, 243 Wis. 2d 141, 626 N.W.2d 762. The relevant factors for deciding whether a communication is a true threat include how the recipient and other listeners reacted to the alleged threat, whether it was conditional, whether it was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim on other occasions, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence. Douglas D., 243 Wis. 2d 204, ¶34.

The court of appeals concludes Gonzalez’s posts were not a true threat when viewed in light of these factors. None of Gonzalez’s other followers saw the posts as a threat, and Bartelt’s concern arose from the coincidence that he was in the theater and also checked Gonzalez’s Snapchat account, which is separate from Instagram and effectively not part of the “story.” (¶¶13, 18). The posts were not directed at or communicated to any victim, as Bartelt was clear that he did not see the posts as being directed at him. (¶15). There’s no evidence Gonzalez has made similar posts in the past, and no reason to believe Gonzalez has a propensity to engage in violence. (¶¶16-17).

Gonzalez’s case was tried to a jury. He didn’t raise any issues about the instruction the court gave on what constitutes a true threat, but the court on its own says the instruction “raises questions” because it changed some of the language in the case law defining true threat, failed to tell the jury it must find the posts were in fact true threats to find Gonzalez guilty, and omits the various relevant factors the case law lists for assessing whether a communication is a true threat. (¶12 n.3). We mention this because the instruction in this case was evidently copied from the standard criminal jury instructions addressing true threats. If you have a criminal case where that is a possible defense, you should review the court’s critique of the instruction in this case, as it could be useful to support a request to modify the standard criminal instruction.

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