A college student was properly charged with making a threat of terrorism after posting a photo on social media of his semi-automatic rifle with a bayonet attached, along with a statement that some students perceived as threatening, the Michigan Court of Appeals has ruled.

The defendant in People v Gerhard (Docket No. 354369) was a student at Lake Superior State University. He was charged with violating the Michigan Anti-Terrorism Act - specifically MCL 750.543m - after posting a photo on Snapchat of his AR-15 semi-automatic rifle with a bayonet attached, and the following statement: “Takin this bad boy up, this outta make the snowflakes melt, aye? And I mean snowflakes as in snow [winky face emoji].”

The Chippewa County District Court bound over the defendant for trial, finding the elements of MCL 750.543m were satisfied. That statute says: “1) A person is guilty of making a terrorist threat or of making a false report of terrorism if the person does either of the following:  (a) Threatens to commit an act of terrorism and communicates the threat to any other person. (b) Knowingly makes a false report of an act of terrorism and communicates the false report to any other person, knowing the report is false.”

The defendant filed a motion to quash, asserting: 1) the First Amendment protected his speech; 2) MCL 750.543m was vague and overbroad; and 3) MCL 750.543m did not apply because the Snapchat post was not a “true threat” of terrorism. The Chippewa County Circuit Court denied the defendant’s motion to quash.

The Court of Appeals affirmed in a published and binding opinion. “To the extent defendant argues that MCL 750.543m is unconstitutional, we disagree,” the Court of Appeals wrote. “To the extent defendant argues that the facts failed to establish that he made a true threat for purposes of whether the speech in his Snapchat post was protected by the First Amendment, we again disagree, but his arguments are appropriate for consideration by the jury. The district court properly bound defendant over for trial.”

Judge Amy Ronayne Krause wrote the opinion, joined by Judge Kathleen Jansen and Judge Michael J. Kelly.

Background

The defendant attended Lake Superior State University in the Upper Peninsula, which reportedly has a “unique policy” of letting students bring weapons on campus if the weapons are registered and stored with the school’s public safety office.

After the defendant Snapchatted the photo at issue, several students became concerned for their safety and reported the post to the public safety office. One student indicated the post made her believe the defendant “intended to use the gun and shoot liberal students.”

The defendant took down the photo when he realized it was being interpreted by some as threatening and he checked in his AR-15 rifle with the school’s public safety office. He was also questioned by the police in his dorm room. Thereafter, he was arrested and charged with making a threat of terrorism.

When the defendant’s attempts to have the charges dropped were unsuccessful, he appealed.

A ‘True Threat’?

In its opinion, the Court of Appeals first noted the issue in this case is not whether the defendant actually made a threat of terrorism, which would be a question for the jury. “Rather, the issue is whether, on these facts, defendant can be charged at all. The issue before us turns on whether a social media post made by defendant can constitute a ‘true threat.’”

The Court of Appeals then turned to the defendant’s assertion that MCL 750.543m was vague and overbroad. “We disagree,” the appeals court said. “Defendant properly recognizes that this Court has already held MCL 750.543m to be constitutional, albeit with some clarification. In People v Osantowski … (Osantowski I), … this Court explained that the Legislature’s use of the word ‘threat’ was meant as a reference to what the United States Supreme Court has defined as ‘true threats,’ which are not constitutionally protected speech.” 

In particular, the defendant claimed that Osantowski I was wrongly decided and was “an exercise in judicial legislation.” The Court of Appeals disagreed. “We decline to revisit Osantowski I. … Our clarification in Osantowski I … that MCL 750.543m applies only to ‘true threats’ was a reasonable and supported interpretation of the existing language of the statute that rendered it consistent with the First Amendment and with MCL 750.543z.”

Next, the defendant argued the First Amendment protected his speech. “We agree in part,” the Court of Appeals said. “There is no doubt that defendant’s charge arises out of ‘speech’ that defendant made, so the First Amendment applies to this matter. Nevertheless, … the First Amendment’s protections are not infinite. The First Amendment permits some content-based restrictions in a handful of categories of speech, including ‘advocacy intended, and likely, to incite imminent lawless action; obscenity; defamation; speech integral to criminal conduct; so-called “fighting words;” child pornography; fraud; true threats; and speech presenting some grave and imminent threat the government has the power to prevent, although a restriction under the last category is most difficult to sustain.’” Thus, while the First Amendment applies to this case, “its protections may not extend to the specific speech at issue.”

The defendant further contended that even if MCL 750.543m is constitutional, the First Amendment, Osantowski I and MCL 750.543z required the district court to first make a determination that a “true threat” was indeed made. “We agree in part,” the Court of Appeals said, noting the defendant also argued the lower courts erred by concluding that he was properly bound over for trial.

The defendant was correct “insofar as the district court was required to make a preliminary finding that there was some evidence that defendant intended to communicate a true threat when he made his Snapchat post,” the Court of Appeals explained. “However, defendant overlooks that whether his speech constituted a true threat is itself a question of fact; and if the trier of fact were to conclude that defendant did not make a true threat, it is already established as a matter of law that he could not be guilty of making a threat of terrorism. Instead, defendant would put the cart before the horse and eliminate the protection of a jury evaluating whether particular speech constituted a true threat.”

Accordingly, “[t]he clear conclusion is that the preliminary examination for a charge of making a terrorist threat under MCL 750.543m should include consideration by the district court of whether the speech at issue could not possibly be considered a true threat,” the Court of Appeals wrote. “However, defendant is incorrect in asserting that the district court should decide as a matter of law whether it actually is a true threat. The district court properly carried out its duty by determining that the Snapchat post could constitute a true threat. The circuit court likewise properly concluded that although defendant had several ‘very good arguments’ for why a jury should find him not guilty at trial, the bindover was proper because the post could be a true threat.”

Lastly, the defendant maintained the district court wrongly found probable cause to bind him over for trial and the circuit court erred in failing to quash the charge. “We disagree,” the Court of Appeals said. “Defendant appears to tacitly concede that his post was antisocial and ill-conceived, but argues that it was merely a reference to his expectation that bringing his gun to campus would cause the minds of ‘snowflakes’ to ‘melt.’ As the circuit court observed, a jury could choose to believe that argument, and nothing in this opinion should be taken as foreclosing defendant from making such an argument at trial. However, at the preliminary examination stage of proceedings, the question is whether it is impossible for a statement to constitute a true threat, not whether it is possible for the trier of fact to deem it not a true threat. We conclude that the lower courts both properly found the matter to be a question for the jury.”

When the record is considered “together and in context,” the Court of Appeals said, there was “ample basis for the district court to find probable cause that defendant knew, at the time he made his Snapchat post, that recipients who fell into the category of persons he considered ‘snowflakes’ would receive and feel threatened by the post.”

Therefore, the defendant was properly bound over for trial, the Court of Appeals concluded.