Politics

Harassment charge reinstated for threat on Anchorage Assemblyman Traini's Facebook page

A dismissed harassment charge against a 23-year-old man accused of threatening Anchorage Assemblyman Dick Traini on Facebook in 2013 was reinstated last week by the Alaska Court of Appeals in a case highlighting the balance between freedom of speech on social media and a public figure's right to feel safe.

The opinion from Chief Judge David Mannheimer ruled that Shane Kidd Borowski's Facebook post was not automatically protected by the First Amendment, reversing a district court ruling. Mannheimer also wrote that the government didn't have to prove that Borowski actually intended to carry out the threat he was accused of making in the post.

The post, which in texting English said, "your going to be assassinated," appeared under the name "Shane Bro Ski" on Traini's re-election Facebook page in 2013.

Traini called police, and Borowski, then 20, was arrested on a charge of terroristic threatening. Borowski told authorities he was only joking and didn't mean to do any harm.

The case hasn't gone to trial. In August 2013, District Court Judge Pamela Washington dismissed the criminal complaint on the grounds that Borowski's post was protected under the First Amendment.

Washington's opinion said the Facebook post didn't seriously suggest Borowski intended to harm Traini because the words "conveyed no explicit or implicit threat … that he himself would assassinate Traini," according to the appeals court opinion. The judge characterized the post as a political statement to the public rather than a direct threat.

Borowski's defense attorney had argued that his communication was "political hyperbole, and not a 'true threat.' "

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The ruling by the Alaska Court of Appeals reversing Washington was issued Friday. In the court's written opinion, Chief Judge David Mannheimer wrote that her ruling disregarded many prior court decisions that the government does not need to prove the speaker intended to carry out the threat for criminal law to apply.

"Rather, it is sufficient if the speaker utters or transmits a communication with knowledge that the communication will be viewed as a threat," Mannheimer wrote.

State law for years has punished threatening communications without proof that the speaker intended to carry out the threat, Mannheimer wrote. For instance, it's a crime to falsely report a bomb was planted in a building or public area, he said.

Mannheimer cited a case in Pennsylvania in saying that the law intends to prevent the psychological distress that follows a threat, not the threat itself.

Traini said in a phone interview Monday that he was glad to hear of the reversal.

"The argument that he was just exercising his First Amendment rights is not a valid argument in today's day and age, where people make threats and actually carry them out," Traini said.

He said he didn't personally feel afraid when he saw the post, but he said his wife and children were "extremely upset and worried about it."

A message left with Anchorage public defender Quinlan Scanlon, who represented Borowski in the district court case, was not immediately returned.  

The case has now been sent back to district court.

Devin Kelly

Devin Kelly was an ADN staff reporter.

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