Blog posts that in part got a Massachusetts man convicted of criminal harassment and violating a harassment-prevention order were in fact true threats, a Massachusetts appeals court has ruled.  

Daniel Kim was convicted of criminal harassment, violation of a harassment order, and other crimes by a jury for his repeated communications to a woman he identified in his blog posts as “Ellie.”

For example, Kim blogged the following:

         “Ellie RIP … May my beautiful and beloved Ellie rest in peace;

         “Your actions have consequences, and if you lie about me again, I will have no choice but to take action against you. I love you, but I know that if I do not hold you responsible for your actions, no one will.”

Two of his other blog posts had titles such as “Closing Doors” and “One Last Chance.” While Kim argued that his communications were protected by the First Amendment, a jury found otherwise. On appeal, the Appeals Court of Massachusetts agreed in its Nov. 10, 2022, decision in Commonwealth v. Kim

The appeals court emphasized that the crux of whether speech constitutes a true threat is whether it causes harm and fear in the victim. 

“Given the content of the blog posts and the context in which they were made, there was sufficient evidence for a jury to find that the blog posts contained intentional threats that would place a reasonable person in imminent fear of death or bodily harm,” the appeals court wrote.

Defendant Kim argued that because many of his blogs were public, they were not communicated directly to the victim and, thus, did not constitute true threats.

The appeals court rejected this argument, noting that “[a]lthough the blog posts were publicly accessible, they were specifically directed at the victim.”

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David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech (2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).