Online threat case puts state statutes to test

David Joseph Lenio told authorities that he employed some tact when he tweeted about school shootings and made hateful remarks about Jews.

“I thought I was careful to make it so I didn’t threaten anybody and break any laws,” he said in a recorded interview with police and FBI investigators.

Lenio is charged with felony counts of intimidation and criminal defamation for a string of Twitter remarks. Parts of the police interview were shown in a suppression hearing in his case on Monday in Flathead District Court.

In February, he tweeted messages such as “I bet I’d take out at least a whole #classroom & score 30+ if I put my mind to it...”

With nearly two dozen similarly violent tweets, prosecutors moved to charge him.

Now as the trial term nears, the case of the 29-year-old Kalispell man has started to wade into free speech battles that could set examples for prosecuting perceived threats on social media.

Defense attorney Brent Getty has called for dismissal of the case on the grounds that Lenio’s tweets weren’t directed at a specific person or school. He argued in court briefs that the prosecution doesn’t have evidence that Kalispell schools were in danger.

“The State does not specify in any manner which law enforcement or which schools,” Getty wrote in a June 10 brief. “Rather it seems to be any law enforcement and any school.”

In an amended charging document, more messages from Lenio were revealed from the Twitter account that has since been deactivated.

One of the messages, according to court documents, said “So let’s see how long I can express desire to see a shooting spree in kalispell Montana school b4 I get attention.” There were several similar posts from 2014 that named Kalispell schools.

Prosecuting attorney Stacy Boman wrote in her own court brief that these messages establish probable cause that a real threat was present.

“This is sufficient evidence to find a probability that Lenio communicated the threats with requisite purpose,” Boman wrote.

These arguments pertained to the first count of felony intimidation. The second count of criminal defamation may raise a separate debate.

This charge mostly focuses on a string of anti-Semitic tweets allegedly posted by Lenio. The examples provided in court documents involve references to shooting Jews.

In his brief, Getty called the state criminal defamation statute “facially unconstitutional.”

At least one free speech expert agrees.

In a June 4 column for the Washington Post, UCLA law professor Eugene Volokh wrote that Lenio’s comments against Jews should be protected as opinions, although egregious ones.

He also argued that prosecuting statements about large groups such as Jews — rather than individuals — could hinder the ability for other criticisms of large groups such as professionals or political parties.

In an email to the Daily Inter Lake, he elaborated that libel law has usually applied to smaller groups, such as a few employees of a business.

“That’s a reasonable interpretation of the statute,” Volokh said. “But I don’t think the statute can be reasonably interpreted as covering vast groups of millions of people who share a religion, race, ethnicity, sex, sexual orientation, political affiliation, profession or what have you.”

He added that Boman’s interpretation of Montana’s criminal defamation statute is “extremely unusual.”

Boman wrote in a court brief that the statute indeed does cover “a group, class or association” that applies to more than an individual.

The Montana statute does contain that definition of potential victims.

“State has a substantial interest in protecting society from threatening speech while the benefits derived from such speech are minuscule,” Boman wrote.

What’s left out of these court arguments are allegations that Lenio had allegedly gathered weapons just prior to his arrest.

According to court documents, Lenio’s roommate told police that Lenio moved a rifle from a storage unit and brought it home. Authorities found two rifles in his home and a handgun with various calibers of ammunition in his vehicle.

Kalispell police initially learned of the tweets from an anti-gun-violence activist in Washington, D.C., who had talked to Lenio online. Police reportedly learned about the guns later and moved to arrest Lenio.

He has been in Flathead County Detention Center since February.

Flathead County District Judge Heidi Ulbricht has yet to rule on any of the defense’s motions. Getty indicated on Monday that he hopes to stay on schedule for an early August trial unless other court actions intervene.

Reporter Matt Hudson may be reached at 758-4459 or by email at mhudson@dailyinterlake.com.