We’ll let you figure this one out

State v. Harwood, 2020 VT 65

By Elizabeth Kruska

This is “The One Where The Supreme Court Defines Emojis In a Footnote And Also Why Context Matters.” Two things about this. First, I really liked the Rocky and Bullwinkle cartoons, and how they always had alternate titles. Second, regular readers know I love a good footnote in a judicial opinion. This one is easily in my top five favorite footnotes. That I have a mental list of favorite judicial opinion footnotes suggests perhaps I ought to get out more. Ah, well, I’m writing this in the time of COVID-19 so I can’t go anywhere. Footnotes it is.

The court took this opportunity to share the definition of emoji from the Oxford English Dictionary as “a small digital image or icon used to express an idea, emotion, etc., in electronic communications.” Some emojis are obvious in what they are. A client texted me to share some good news. I sent back a smiley face. She knew that meant I was happy for her.

This particular case really doesn’t have much at all to do with emojis, but they are important and help with context. The defendant was arrested for aggravated domestic assault and disturbing the peace by phone. Defendant encountered his ex-girlfriend and asked for a short ride. She took him where he needed to go, and instead of getting out at the destination he brandished a knife and said he would hurt her if she did not drive him somewhere else. Then he sent her a bunch of threatening messages via Facebook Messenger, including a bunch of gun emojis.

This seems like a good example of emojis in context. The little picture by itself may not be especially threatening, depending on who sends it to whom and why. I have a friend who enjoys sport shooting. If I ask what she’s doing on Saturday, she might text back a gun emoji. I understand that to mean she’s going target shooting. That’s very different than a series of verbal threats and gun emojis between people who have relationship tension, and where there’s already been a weapon-involved incident in the day or so prior.

I’ll share that my favorite emoji is the potato. I text the potato emoji to my husband if he has gone to the gym and I have gone for a run while he’s at the gym. If I’m done running before he’s done at the gym, I text him a potato from the parking lot to let him know I’m ready to go. There’s a very specific context for the potato emoji within this particular relationship. It would not mean the same thing to someone else. (Editor’s Note: Huh?)

As an aside, I find language and how we all use language to be very interesting. Emojis are becoming part of how we communicate, and courts are starting to deal with their meanings. Maybe I’ll write a law review article about this. I’ll put that on my list of things to do.

Anyway, in this case the defendant was arrested and subsequently pled guilty to the assault charge. It appears the disturbing the peace charges were dismissed as part of the plea agreement. He received a sentence involving some jail time and also some probation. For a sentence like this the probation conditions apply while the person is in jail and also while they’re out of jail.

One of the conditions he received was the infamous Condition N, which prohibits violent or threatening behavior. People have a love-hate relationship with this condition because on one hand, it makes perfect sense that a probationer shouldn’t make threats and be violent. On the other hand, what does “violent or threatening” actually mean? Go back up to the emoji discussion above; is it obvious on its face? Or maybe context is necessary to know what violent or threatening actually means?

While Defendant was in jail he got into a verbal back-and-forth with a corrections officer (CO). The CO reminded him that his behavior could end up being a probation violation if he didn’t stop. The defendant then yelled some profanities and then said he would stab someone if he was held past his release date, and also threatened to have his gang go to the CO’s house. He also commented that it would be easy to do, because COs put their full names on their staff reports, so it would be easy to figure out where they live. He said he would follow through on his threat when he got out.

As predicted, this interaction led to the filing of a probation violation based on Condition N’s “no violent or threatening behavior” language. The defendant had a hearing and the judge found a violation. The defendant appeals, and SCOV affirms.

As a quick review, a probation violation involves a review of both law and fact. SCOV reviews to determine whether the factual findings are based on credible evidence. If so, SCOV will uphold the findings so long as they’re supported and do not contain an error of law.

Here, everyone agrees the statements were made. The disagreement is about what the law means.

For starters, the defendant argues that the trial court erred in finding a violation based only on verbal statements. His argument is that statements can’t rise to the level of threatening behavior, and that he was not on notice that his statements could be considered threatening behavior.

The first argument is rooted in a recent SCOV case, State v. Schenk, where SCOV ruled that speech on its own, and without associated behavior, does not rise to the level of “threatening behavior” such that the speech can be criminalized as disorderly conduct. SCOV appreciates the analogy but finds that it doesn’t really work here. Schenk was about a criminal disorderly conduct case. The government can’t criminalize protected speech. The combination of speech and action can become disorderly conduct.

Here, though, we’re talking about a probation condition. And it is fairly well-settled law that a probationer has slightly diminished constitutional rights when it comes to conditions meant for rehabilitation and protection of the public. Also, in Schenk, the issue was one of a public nuisance. The issue in this matter had to do with statements of harm directed at a specific person.

The court now turns again to context. This issue has come up a few times. In one case, a defendant made some statements that sounded like threats. But looking deeper at the situation, it turns out the threats were vague, made toward someone who may not exist, and were made while the defendant may have been suffering a delusion. In another case, a defendant made some threatening-sounding statements toward his landlord. SCOV found that although his comments were inappropriate, it was more like he was venting frustration, and venting shouldn’t be enough to violate probation. SCOV also reviewed a case where a defendant made some pretty nasty statements about his probation officer after leaving a court hearing. This, too, was found not to be threatening because he was making the statements to other people and he had no way of knowing that the probation officer was actually nearby and overheard the statements.

Here’s what emerges from this: statements that are meant to put another person in fear of harm, or which convey a message of an actual intent to cause harm to someone can be threatening. Venting, blowing off steam, and threatening a possibly non-existent person are probably not that. And SCOV acknowledges that it might be different for someone who is a probationer than for someone who isn’t and who is just facing a possible disorderly conduct charge. But again, context matters.

All that having been said, SCOV concludes that the defendant’s statements here were sufficient to be violent or threatening behavior. He specifically told a corrections officer that he would “stab somebody” if he had to serve more time beyond his minimum release date, and also that he could find the CO’s house and send a gang there. And this wasn’t an off-the-cuff remark made while they passed each other in a hallway, it was after the defendant was reprimanded for some behavior, and was reminded that his behavior could become a probation violation.

SCOV then turns to the issue of notice. The defendant argues again that the standard articulated in Schenk—that threatening behavior requires “physical force or physical conduct which is immediately likely to produce the use of such force”—ought to be what defines “threatening behavior.” He points out that this was a verbal back-and-forth with no other underlying conduct. He also points out that the offense for which he was under sentence involved use of a knife, so he understood that threatening needed something more to go along with it than just words.

SCOV agrees that absolutely due process requires a defendant to have notice of what conduct is proscribed so the defendant can avoid that behavior (or not, I suppose). SCOV also reasons that the trial court went over the defendant’s probation conditions with him on the record and that he signed receipt of them, acknowledging that he had read and understood them. Defendant’s position is that he knew the condition said “no violent or threatening behavior” (or whatever the exact language was) but it didn’t say anything specifically about verbal statements falling into this category.

SCOV says that the plain meaning of words is often enough to provide notice. The court cites two prior probation cases where there was a question about what a term actually meant. Just because a particular word might have more than one dictionary definition doesn’t make it vague. The question is whether there’s adequate notice about what would constitute a violation.

SCOV looks at the big picture. The defendant was charged with and convicted of a violent offense involving threatening behavior. He also was charged with disturbing the peace by phone for texting threatening messages including gun emojis. Even though those counts were subsequently dismissed, SCOV finds that he should have known that making statements intimating a future threat of violence toward another person, could be enough to get him into trouble. SCOV further points out that the defendant received a probation sentence, which is generally meant to be rehabilitative in nature. His conditions included programming meant to target issues of violence. It doesn’t make sense that he would have to go to violence reduction classes but still be permitted to make threats at the same time. Lastly, SCOV points out that a corrections employee told him to stop his behavior because it could become a violation.

Taking all these things together, SCOV finds there was an adequate basis for the court to conclude that the defendant had sufficient notice about what kinds of statements would rise to the level of a violation.