from the District Court, Third Judicial District, Anchorage,
Trial Court No. 3AN-13-3567 CR Pamela Scott Washington,
B. Frasco, Assistant District Attorney, Anchorage, and
Michael C. Geraghty, Attorney General, Juneau, for the
Catherine Boruff, Assistant Public Defender, and Quinlan
Steiner, Public Defender, Anchorage, for the Appellee.
Before: Mannheimer, Chief Judge, and Allard, Judge.
Anchorage Assemblyman Dick Traini's run for re-election
in 2013, Shane Kidd Borowski posted a message on Traini's
election Facebook page. The message read, "Your going to
get assassinated." [sic]
on this conduct, Borowski was charged with the crime of
second-degree harassment as defined in AS 11.61.120(a)(4).
This statute prohibits a person from making "[an]
electronic communication that threatens physical
injury", if the person makes that communication
"with intent to harass or annoy another person".
district court dismissed this charge before trial, ruling
that Borowski's Facebook post was protected speech under
the First Amendment.
conclude that the district court's ruling was mistaken in
in making this ruling, the district court improperly made
several findings of fact - even though, as yet, no evidence
has been presented in Borowski's case. And in each of
these findings, the court interpreted the circumstances in
the light most favorable to Borowski.
the district court's ruling was based on the mistaken
legal premise that Borowski could not be prosecuted for his
Facebook post unless Borowski seriously intended to harm
Traini. As we explain in this opinion, the law is to the
contrary: a person can be prosecuted for communicating a
threat of harm to another person even if the speaker does not
seriously intend to carry out the threat, so long as the
speaker is aware that people would reasonably interpret the
words as a real threat of harm.
these reasons, we reverse the district court's ruling and
reinstate the charge against Borowski.
hi story of this case, and details of the district
Borowski was charged with second-degree harassment for his
Facebook post, Borowski's attorney moved to dismiss this
charge, arguing that Borowski could not be prosecuted because
his Facebook post was protected speech under the First
Amendment to the federal constitution. The defense attorney
argued that ...