Skull, wink emojis a threat? PBSC students litigate in U.S. program

The case is about a college student and self-styled rapper who suffers a difficult break-up with his girlfriend. In social media posts, he said she will “regret this day” and learn a new meaning of “unconscious.” One post ended with a series of skulls and winking emojis.

Free speech or prosecutable threat?

A simulated court hearing involving Palm Beach State College students is slated to become a video to help train judges nationwide in a program that aims to promote civil discourse in an era not always so civil.

PBSC is the first college to host the national initiative launched last year by U.S. District Court Judge Robin L. Rosenberg of West Palm Beach and U.S. District Judge Beth Bloom of Miami. At PBSC, Rosenberg worked with associate professor Phillip Mancusi, who teaches political science and American government.

Rosenberg presided over the 3.5 hour trial this week in a replica of a courtroom at the school’s Lake Worth campus, built to support its efforts to train students for public-safety and law-enforcement work.

“Nobody attacked each other personally or got out of hand,” Rosenberg noted at the end of the trial, addressing nearly 40 participants. “In fact, the students engaged each other using the civil discourse skills highlighted throughout the day. It was heartening to watch.”

Federal judges in the Southern District of Florida and lawyers from local chapters of the Federal Bar Association and county bar associations kicked off the initiative with high school students in courtrooms in West Palm Beach, Fort Pierce, Fort Lauderdale and Miami. Federal courts are offering the program to students across the country.

The fictional case probed issues in a real 2015 U.S. Supreme Court case, Elonis vs. U.S. Aspiring rapper Anthony Elonis argued what prosecutors called threats against his ex-wife and others were merely a form of artistic expression, sometimes parodying other videos. He was sentenced to 44 months in prison, but the U.S. Supreme Court reversed lower courts and sent the case back.

The case involves standards of what constitutes a true threat: Is it what a “reasonable person” would find threatening, or should it require proof the defendant meant what he said literally?

Symbols including winking emojis “clearly mean the threat was not meant to be taken seriously,” argued one of the PBSC students playing the role of defense attorney in Lake Worth, Hunter Schulz.

Just look at those skulls, said Elle Firpo, another student playing a government lawyer: “If reasonable people construe a statement as a threat, then it may be prosecuted as a threat.”

Other students served as a jury. Their verdict? Evenly split. One female juror said she uses skull emojis frequently to express things that are not intended as a threat or reference to literal death. A common meaning, according to online compilers of such things: This hangover makes me feel like death.

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