D.C. v. R.R. (182 Cal. App. 4th 1190, 2010)

Court of Appeal of the State of California 2010-03-15

Citations

Full opinion text

Opinion

MALLANO, P. J.

A 15-year-old high school student was pursuing a career in entertainment and maintained a Web site for that purpose. Several of his fellow students posted messages at the Web site, making derogatory comments about his perceived sexual orientation and threatening him with bodily harm.

The aggrieved student and his parents filed this action against the other students and their parents, alleging a statutory claim under California’s hate crimes laws (Civ. Code, §§ 51.7, 52.1) and common law claims for defamation and intentional infliction of emotional distress. In response, one of the student-defendants and his parents filed a special motion to strike, contending that the action was a “strategic lawsuit against public participation” (SLAPP) (Code Civ. Proc., § 425.16; all undesignated section references are to that code unless otherwise indicated). The student-defendant had posted a message stating in part: “. . . I want to rip out your fucking heart and feed it to you. . . . I’ve . . . wanted to kill you. If I ever see you I’m . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you bum in hell.” The trial court denied the anti-SLAPP motion on the ground that the lawsuit did not arise out of a statement made in connection with a “public issue.” (§ 425.16, subds. (b)(1), (e)(3).) Defendants appealed.

We affirm because defendants did not make the requisite showing that plaintiffs’ complaint is subject to the anti-SLAPP statute. In particular, defendants did not demonstrate that the posted message is protected speech. Further, defendants contend the message was intended as “jocular humor.” Assuming the message was a “joke”—played by one teenager on another— it does not concern a “public issue” under the statute. (See § 425.16, subds. (b)(1), (e)(3).)

I

BACKGROUND

The following allegations and evidence are taken from the pleadings and the papers submitted in the trial court with respect to the anti-SLAPP motion.

D.C., the student-plaintiff, attended Harvard-Westlake School (HarvardWestlake), a private educational institution in Los Angeles. D.C. filed this action against several other students through a guardian ad litem, his father. D.C.’s father and mother also pleaded claims in their own right. (We will refer to D.C. and his parents collectively as plaintiffs.) Plaintiffs also named as defendants the parents of each student-defendant; the parents were sued as guardians ad litem and individually for their child’s conduct (see Civ. Code, § 1714.1). (We refer to the student-defendants and their parents collectively as defendants.) Harvard-Westlake, its board of directors, and three school employees were also sued. The claims against them were arbitrated pursuant to an arbitration provision in the school’s enrollment contract. (See D.C. v. Harvard-Westlake School (2009) 176 Cal.App.4th 836 [98 Cal.Rptr.3d 300].)

A. Complaint

Plaintiffs commenced this action on April 25, 2005. A first amended complaint (complaint) was filed on June 8, 2005, and alleged as follows.

While a student, D.C. pursued a career as a singer and an actor. He had a record album with a planned release date, had broadcast a song worldwide via satellite radio, and had played the leading role in a feature film presented at an internationally acclaimed film festival. He had also toured under the auspices of a nationally recognized radio network.

D.C. maintained a Web site to promote his entertainment career. The site allowed any member of the public to post comments in a “guestbook.” Several students at Harvard-Westlake went to the Web site and posted threats against D.C. and made derogatory comments about him. One post read, “Faggot, Pm going to kill you.” Another read, “[You need] a quick and painless death.” One student wrote, “Fuck you in your fucking fuck hole.” Another commented, “Fucking ass clown. Nigga what?” One post announced, “You are now officially wanted dead or alive.” Another threatened, “I will personally unleash my manseed in those golden brown eyes.”

The students who posted the threats sought to destroy D.C.’s life, threatened to murder him, and wanted to drive him out of Harvard-Westlake and the community in which he lived. They were motivated by a misperception of D.C.’s sexual orientation. When D.C.’s father read the threats at the Web site, he immediately informed Harvard-Westlake of the problem, believing that some of its students were responsible. The father also contacted the Los Angeles Police Department (LAPD), which, in turn, notified the Federal Bureau of Investigation.

On the advice of the police, D.C. withdrew from Harvard-Westlake. He and his family moved to Northern California, where he went to a different educational institution. The Harvard-Westlake student newspaper, The Chronicle, ran at least two articles on the matter. One article disclosed D.C.’s new residential location and the name of the school he was attending. The article also disclosed that posts at the Web site had referred to D.C. as a “faggot.” Harvard-Westlake did not suspend or expel any of the students who admitted posting the threats.

As a consequence of defendants’ conduct, plaintiffs suffered personal and emotional injury, loss of income, the payment of medical expenses, the cost of moving, expenses for traveling back and forth from their new residential location to Los Angeles in order to support D.C.’s professional career commitments, and the related cost of housing while staying in Los Angeles.

The complaint contained five causes of action against defendants, only three of which are relevant here. First, plaintiffs alleged that defendants had violated their right under the state hate crimes laws to be free from “threat[s] of violence” motivated by perceived sexual orientation. (Civ. Code, § 51.7, subd. (a); see id., 52.1.) Second, in a defamation claim, plaintiffs asserted that defendants had libeled D.C. by calling him a homosexual. Third, plaintiffs alleged a claim for intentional infliction of emotional distress, contending that defendants’ conduct was outrageous and had caused plaintiffs to suffer severe emotional distress. All three of these causes of action were based on the posted threats and their effect on plaintiffs.

Plaintiffs named as defendants six students and their parents. Among those sued were R.R., a student, and his parents (collectively the R.’s).

B. Anti-SLAPP Motion

On July 20, 2005, the R.’s filed an anti-SLAPP motion, contending that R.R.’s posted message was protected speech or, more specifically, a written statement or writing made in a public forum in connection with an issue of public interest. (See § 425.16, subd. (e)(3).) The motion was supported by several declarations, including ones from R.R. and his father. In opposing the motion, plaintiffs relied primarily on a declaration from D.C.’s father. Both sides submitted declarations from law enforcement personnel.

R.R. had posted the following message on D.C.’s Web site: “Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I’ve . . . wanted to kill you. If I ever see you I’m . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you bum in hell.”

Posts by other students included: (1) “I hate fags. . . . diefags@ yahoo.com. . . . gays are evil.com. . . . Hey fucker. . . . You are real gay”; (2) “Faggot, I’m going to kill you”; (3) “You are an oversized faggot. ... I just want to hit you in the neck—hard. . . . [G]o to the 405 [freeway] bridge and jump”; (4) “I hate fags. . . . You need to be stopped”; (5) “I am looking forward to your death”; and (6) “Not only are you a massive fagmo, but must absolutely quit showing your face at my school. You are now officially wanted dead or alive.”

1. Declaration of D.C.’s Father

By way of background, D.C.’s father explained: “[D.C.], without exception, uses the pseudonym ‘Danny Alexander’ in his entertainment career.

“. . . Nowhere on the subject website . . . nor in any publicity material, album packaging, or on film credits has [D.C.] been identified by his legal name.

“. . . Like many other aspiring entertainers, [D.C.] deliberately chose to use a stage name precisely so he could enjoy a ‘dual life,’ one which afforded him the luxury of anonymity outside the entertainment industry. [f] . . . [][]

“. . . Of the thirty-four (34) outrageously offensive original postings made on [D.C.’s Web site] that are the subject of this lawsuit, twenty-three (23) falsely identify [D.C.] as a homosexual.

“. . . I am informed, believe, and thereon allege that those twenty-three (23) postings regarding sexual preference originated from no less than ten (10) distinct computer systems.

“. . . The website . . . was permanently removed from the Internet... the same day the postings were discovered, [f] . . . [j[]

“. . . The LAPD disagreed with [a school administrator’s] ‘intuition’ that the school posed no danger to [D.C.] and therefore advised me to have [D.C.] stay home from school until a thorough investigation had been completed. [D.C.] did attend a PSAT exam at the school with great trepidation and only after I discussed the matter with the administration and stayed on site to watch him throughout the testing without causing any disturbance to students sitting for the college entrance examination. Other than that one examination, [D.C.] did not return to the school due to fear for his life. If the threats were nullified, it would have been our preference to have him continue to attend Harvard-Westlake and remain in Beverly Hills.

“. . . We waited ... for an outcome to the investigation through the school and the authorities, but without obtaining the information necessary to insure our son’s safety we were compelled to enroll [D.C.] ... at another school in order to salvage what was left of his first semester of his critical junior year. Despite this enrollment we would have sought to have him return if we had been assured that he was safe from the vicious threats of violence and taunting as shown in the posts. I had to commute to Los Angeles from [Northern California] during the week and be away from my family which was incredibly stressful for the entire family and caused additional stress on . . . my wife over the concern for [D.C.] and his safety while I was gone.

“. . . Of the thirty-four (34) offensive postings originally posted, six (6) were perceived [as] death threats by me and my family. These included the one[] admitted to by [R.R.] . ... HD ... HD

“. . . [R.R.’s message] in particular was the most evil and malicious of the postings and looked to come from a parent rather than a student. My family was terrified and made physically nauseous from the threat. We feared for the life of our fifteen year old child. The fact that others wanted to ‘one-up’ each other as [R.R.] asserts in his declaration furthers our belief that the boys worked in concert to terrify my family like a gang of thugs driving us to pull our son from school and move. There was nothing ‘playful’ in the post, and the fact that [R.R.] still believes this is alarming and renews our concerns for persons that offend him by sexual orientation or otherwise, [f] . . . [f]

“. . . Because [D.C.] was uprooted mid-semester in his junior year of high school, and because of the threat of death, its impact on his family, and continued stress, his school life and career were adversely affected. Further, due to the threats and gay vulgar lies posted [D.C.] started to suffer from frequent and severe panic attacks which required medical attention, and from which he still suffers occasionally to this date. For the first time in his life after the postings people approached [D.C.] to discuss what was posted and asked him about being gay. It was clear that others that read the posts believed the comments about his sexual orientation and felt concern for him and his safety. This also added to [D.C.’s] embarrassment and to his distress.

“. . . [0]ur family suffered: emotional distress; anxiety; sleeplessness; physical pain; insecurity; fear; pain and suffering; payment of attorneys’ fees; payment of medical expenses; payment of moving expenses; payment of traveling and housing expenses to and from Los Angeles to support our business endeavors; [and] [D.C.]’s lost income ....

“. . . [D.C.] suffered poor academic performance during his junior year, which compelled our family to hire a tutor and education therapist, and which ultimately resulted in his continued suffering from emotional distress and anxiety, and adversely affecting his self-esteem, school life and earning potential. In fact, the movie ‘Steal Me’ [(Cineville & Picture Entertainment Corp. 2005)] in which [D.C.] had the lead was not released to the public until well after the malicious postings had occurred.

“The LAPD advised my family that [D.C.] should not return to school at [Harvard-Westlake] until a thorough investigation had been completed.”

2. R.R. ’s Declaration

R.R. explained at length why he posted the message: “Prior to my sending of an email posting to [D.C.] . . . , I had no relationship with [him], and, . . . to my knowledge, I had seen him at Harvard Westlake from a distance on several occasions, walking through the halls, but never had verbal or physical contact with him. Prior to the email incident . . . , I attended a PSAT preparatory session which was attended by approximately seven students. I knew [D.C.] was one of these students. We did not interact with each other in any manner during this PSAT session. I had not met [D.C.] before that session; we had never been in the same class; and, to my knowledge, we never participated in the same school activities. Moreover, I had not heard anything about him. I had no knowledge of his acting or singing involvement, did not know his interests or habits, and was unaware of who his friends were at school. Prior to the . . . email incident, I had no opinion about [D.C.] whatsoever. I did not like or dislike him and certainly had no views about his gender identity, sexual orientation, or skills as a singer or actor. Likewise, I had never heard any fellow student convey any opinion about him generally, or with regards to any aspect of his life, including his sexual orientation. I certainly did not harbor any ill will against him or his family, and, in fact, the only reason I knew his name is that our school is very small and I know the name of almost every student in my class. . . .

“. . . Sometime after I first saw [D.C.] at the PSAT session . . . , while I was at Harvard Westlake School, a fellow student suggested that I should ‘check out’ the website of a fellow student, i.e. [D.C.] The student did not tell me the content of the website; did not ask me to post any messages on the website; did not tell me that he was going to post any messages on the website; and did not give me any information about [D.C.] My fellow student, did, however, suggest I look at the site in a tone of voice suggesting that there was something weird, strange, or far out about the website. My fellow student did not invite me to participate in any ‘conspiracy’ and made no suggestion that I do anything but just take a look at the site.

“. . . After that school day, I returned home at my regular time. When I turned on my computer, I received an instant message from the fellow student providing me with an Internet link to the [D.C.] website. The instant message did not suggest that I post messages, or provide any suggestions about how I should respond to the website. In fact, at the time I received this message I was completely unaware that the site provided for the posting of messages. . . .

“. . . Almost immediately after receiving the instant message, I used the link to see [D.C.’s] website because I was curious about what the interest was in the website. When I first entered [D.C.’s] website, I was greeted by a picture of him with music and singing playing in the background. When I surveyed the site with its links, it immediately revealed more pictures, that were very posed, and a biography of [D.C.’s] alleged accomplishments. In the site, [D.C.] describes himself in the way products are advertised. He described his eyes as ‘Golden Brown.’ He describes his hair as ‘Midnight Brown.’ . . . After listing his accomplishments, he is pictured with a shirt that prominently displays the word ‘SUCCESSFUL.’ The site then links the viewer to [D.C.’s] fan mail which to this day includes obsequious fan messages that appear calculated to give the impression that [D.C.] is a person of extraordinary fame and talent. . . . [f] . . . [f]

“. . . The messages refer to [D.C.] as ‘Danny Alexander’ because the website itself uses a pseudo name rather than his real name, making it unclear as to whether the whole site is a spoof.

“. . . My initial response to the site was to be offended and put off by its T am better than you’ attitude and its blatant bragging and self promotion. In the past, I had spent time studying Buddhism, and in light of the Buddhist tradition of quiet understatement, the website’s distinctly narcissistic tone was disturbing. On the other hand, I was a bit entertained by [the] weird, possibly satirical, tone of the site. I certainly appreciated why a fellow student would want me to ‘check this out.’

“. . . [D.C.’s] website also had a link that allowed a viewer to post public messages and to view the posting made to the website. The website invited postings. The postings included messages from admirers writing as if he were a famous movie star and singer. [D.C.] portrayed himself as a public figure. I then began looking at the posted messages. There were many messages, apparently from fellow students, that were hostile and derogatory, albeit jesting. I did not know the identity of the posting persons. I did, however, suspect that at least some of the messages were from Harvard Westlake students because the messages referred to Harvard Westlake.

“. . . I sensed that the other writers had a similar emotional response to the site that I had. As these postings became increasingly bizarre and weird, it became apparent to me that everyone was competing to see who could be the most outrageous. For example, one poster suggested that he was an ‘official’ representative of the student body and that [D.C.] was wanted dead or alive. I thought the postings were funny, and I certainly didn’t think that [D.C.], or any other rational person, would believe that he was wanted dead or alive. Likewise, another posting referred to [D.C.] as a ‘Nigga.’ Of course, [D.C.] was obviously not a black American. Yet another posting referred to the poster’s wish to ‘unleash my manseed in those golden brown eyes.’ This appeared to be an obvious satire of [D.C.’s] own self description as the wonder boy with ‘golden brown’ eyes.

“. . . That afternoon, I was in a playful mood and I decided to add my own message to the Internet graffiti contest that was apparently going on. I posted a message which stated; ‘Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I’ve . . . wanted to kill you. If I ever see you I’m . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you bum in hell.’

“. . . My motivations in sending this email had nothing to do with any perception of [D.C.’s] sexual orientation, and certainly did not reflect an intention to do him physical harm. As set forth above, I had no personal knowledge or belief about [D.C.’s] sexual orientation. No one ever told me he was gay, and I had no thoughts on the subject matter. My message is fanciful, hyperbolic, jocular, and taunting and was motivated by [D.C.’s] pompous, self aggrandizing, and narcissistic website—not his sexual orientation. My only other motivation, a bit more pathological, was to win the one-upmanship contest that was tacitly taking place between the message posters. Everything about the message is fanciful. I assumed that any rational person would understand that I was just inarticulately and offensively saying, T am repulsed by your self promotional style.’ I certainly did not think anyone would believe that they could eat their own heart after it was taken from their body. I assumed that a 10 year old child would understand that you would be dead if your heart was removed. I obviously didn’t have school age children and I had never listened to any of [D.C.’s] songs. Paradoxically, my message states that my motivation was a hatred of [D.C.’s] song, not his sexual orientation, i.e., my message itself . . . belies the allegation in the complaint.

“. . . The complaint alleges that my motivation was my perception that [D.C.’s] sexual orientation was gay. As set forth above, I had no opinion regarding [D.C.’s] sexual orientation. More importantly, I wouldn’t care less if he was gay. I have no animosity towards gays, and . . . even if I thought [D.C.] was gay, it couldn’t be a basis for any hatred or threat. . . . [O]ne of my favorite relatives is openly homosexual and I have been quite vociferous in defending this relative from fundamentalist views that characterize homosexuality as a disease. In fact, one [of] my good friends at school is a member of the Gay-Straight Alliance. I have made my views clear that I think this student’s involvement is ‘cool.’ Likewise, I have walked side by side with gay couples in the ADDS walk, supporting their position, and I have worked through a church at a soup kitchen for AIDS patients, many of whom are gay. ... I am not homophobic and the basis of my conduct was childishness and some repulsion to [D.C.’s] grandiose style—not his sexual orientation.

“. . . The next day after the offensive postings, at school, I heard students talking about the posts. The students expressed the view that the posts were a funny gag. No one took the posts seriously as a death threat or an accusation of homosexuality. The posts were treated as a goof. I did not participate in these conversations because I was ashamed of my participation. In retrospect, my conduct felt infantile, immature, and was beneath me. I felt ashamed that I would allow the desire for peer approval, ‘peer pressure,’ to induce me into acting like an idiot.

“. . . Shortly after sending these messages, I again saw [D.C.] at the PSAT preparation class. He was not acting as if he were afraid that he was going to be killed. He appeared calm and participated in exactly the same manner as the preparation session before the Internet graffiti contest. We did not interact at all. . . . m . . . m

“. . . I wrote a letter of apology to [D.C.] and his family. The school provided me with the address of [D.C.’s] father and I sent the letter to that address. In that letter, I admit my email transmission and state: T want you to know that I never intended to harm you or your family, and that I respect your career and what you are trying to do with your life.’ At the end of that letter I stated: ‘If there is anything else I can do to atone for my actions, please let me know.’ I never received a response to this letter. After sending this letter to [D.C.], I sent a copy to the Harvard Westlake School. . . .”

3. Declaration ofR.R.’s Father

R.R.’s father stated in part: “My son [R.R.] is 17 years old. Approximately two years ago, I purchased a computer for my son and gave it to him for his personal use as a gift. My son needed a computer to do school research and to be able to draft papers. Our family considered the computer essential to be able to communicate with teachers and other personnel regarding school work and school related affairs. Sometime shortly after I purchased this home computer, I counseled my son to be careful about being appropriate in his use of the computer. I have learned from my son that he used his home computer to send one of the messages which are referenced in the law suit.

“. . . [R.R.’s] computer is located in his bedroom. I do not have a password to any of his accounts, and . . . my son uses an account for emails different than the one that I use. . . . [T]here is no way for me to know the content of any email sent or received by [my] son unless he happens to tell me. Prior to my son’s communication which is the subject of this lawsuit, I was not aware that he sent any messages with accusatory, threatening, or inappropriate content. I never saw any such messages; my son never reported sending such messages; I never received any complaint about any such messages. Contrary to the allegations in the complaint, I never allowed or permitted my son to engage in the conduct alleged. I had no idea that he sent such messages; never suspected he sent such messages; and, because I did not have his password^] I did not have any ability to read his emails. Had I known that [R.R.] sent this kind of message, I would have counseled him not to do so. I would have offered such counseling, and would have barred his access to the Internet if he did not agree to abstain, because I find the communications offensive—not because they might be technically illegal or subject to civil liability.

“. . . In fact, as soon as my wife . . . and I discovered the conduct alleged in the complaint, we terminated [R.R.’s] access to the Internet, instituted various punishments including grounding, no cell phone use (except for emergencies), [and] no car use and had him evaluated by a psychiatrist in a further effort to insure that such conduct was never repeated and the root cause, if any, was dealt with immediately . ... [][]... [][]

“. . . Prior to this episode [R.R.] has never been the subject of any criminal complaint or juvenile complaint of any kind. . . . Our family (including [R.R.]) cooperated with the police investigation immediately without asserting our legal right to remain silent. They reported to us their conclusion that they did not regard [R.R.’s] statement as a real threat and did not intend to seek the filing of any kind of criminal case. [R.R.] has not been charged with a crime or any wrongdoing by any law enforcement entity ....

“. . . I have never heard [R.R.] make any negative, derogatory, or hostile statements about homosexuals. ... [f] ... H]

“. . . I have observed [R.R.] to be compassionate, well grounded, with many friends. To my knowledge, [R.R.] has never once gotten into a physical fight with anyone and he has never threatened to hurt anyone. [R.R.] is somewhat introverted and gentle, and he has an artistic fondness for music. . . . [R.R.’s] proclivity to humanistic and non-violent approaches to the human condition has been reflected in his past interest and practice of Buddhism and being a vegetarian.”

4. Declaration of Another Student

The R.’s submitted a declaration from another Harvard-Westlake student who described some of the messages posted at D.C.’s Web site. For example, one post read in part: “You are so fucking orgasmic. I’m wet. . . . Oops I peed my pants. You look exactly like Britney. . . . Your career is bound to go nowhere.” One student wrote: “You are the biggest fag in the HW class .... [TJhank you though. . . . [T]his will give everyone laughs for a long long time.” In a second post, the same student said: “Hey [D.C.], I’m so excited to finally speak to you. We here at KY Jelly . . . wanted to know if [you] would be the spokesperson for our new anal lube. . . . Fucking ass clown. Nigga what?”

5. Law Enforcement Declarations

The deputy district attorney assigned to the criminal investigation submitted a declaration on behalf of the R.’s, stating that, based on the evidence, the district attorney’s office declined to prosecute any of the students who had posted messages on D.C.’s Web site.

The police detective conducting the investigation also submitted a declaration in support of the motion, explaining that the LAPD “determined that [the] annoying and immature Internet communications did not meet the criteria for criminal prosecution.” In a followup police report, the LAPD “determined that the emails were an expression of 1st Amendment rights and no crime.”

Plaintiffs submitted a declaration from an employee in Harvard-Westlake’s security department who had previously been an officer with the LAPD for 20 years. In the former officer’s opinion, R.R.’s message constituted “a clear and specific threat of death” in violation of Penal Code section 653m. That statute provides: “Every person who, with intent to annoy, . . . makes contact by means of an electronic communication device with another and addresses to . . . the other person any threat to inflict injury to the person ... is guilty of a misdemeanor.” (Id., subd. (a).) The former officer stated that the Web site posts “depict in my opinion a group attempting to antagonize the victim and evidence a group behavior to work in concert together to harass, annoy, and at times threaten with violence and intimidation a boy perceived to be gay. The fact that many discussed it at school and then were able to read others’ comments and add additional posts over a two day period . . . furthers my belief that they worked together to intimidate the victim and his family.”

C. Trial Court’s Ruling

The anti-SLAPP motion was heard on March 12, 2008, and taken under submission. By minute order dated May 6, 2008, the trial court denied the motion, concluding that the case did not involve a public issue. (See § 425.16, subds. (b)(1), (e)(3).) The R.’s appealed.

II

DISCUSSION

We review de novo the trial court’s ruling on an anti-SLAPP motion. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 325 [46 Cal.Rptr.3d 606, 139 P.3d 2]-)

The R.’s argue that R.R.’s posted message was “jocular humor” entitled to First Amendment protection under the anti-SLAPP statute. We disagree for two reasons. First, the R.’s evidence as to whether R.R.’s message was protected speech is self-contradictory. Accordingly, we cannot say they demonstrated that the message is protected speech. Second, assuming that R.R.’s message was a “joke” and thus constitutionally protected, it was not a statement made in connection with a “public issue” as that term is used in the anti-SLAPP statute. (See § 425.16, subds. (b)(1), (e)(3).) Rather, it was merely part of a “joke” among teenagers.

A. Protected Activity Under the Anti-SLAPP Statute

“ ‘Litigation which has come to be known as SLAPP is defined by the sociologists who coined the term as “civil lawsuits . . . that are aimed at preventing citizens from exercising their political rights or punishing those who have done so.” . . . [f] . . . fil]

“ ‘SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. . . . [0]ne of the common characteristics of a SLAPP suit is its lack of merit. . . . But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant’s resources for a sufficient length of time to accomplish plaintiff’s underlying objective. ... As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished.’ ” (Wilbanks v. Walk (2004) 121 Cal.App.4th 883, 890-891 [17 Cal.Rptr.3d 497], citations omitted.)

Under the anti-SLAPP statute, “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1), italics added.) The statute is to “be broadly construed to encourage continued participation in free speech and petition activities.” (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 22 [45 Cal.Rptr.3d 633]; see § 425.16, subd. (a).)

“ ‘The Legislature enacted the . . . statute to protect defendants . . . from interference with the valid exercise of their constitutional rights, particularly the right of freedom of speech and the right to petition the government for the redress of grievances.’ ” (Contemporary Services Corp. v. Staff Pro Inc. (2007) 152 Cal.App.4th 1043, 1052 [61 Cal.Rptr.3d 434].)

1. Free Speech

“ ‘The First Amendment, applicable to the States through the Fourteenth Amendment, provides that “Congress shall make no law . . . abridging the freedom of speech.” The hallmark of the protection of free speech is to allow “free trade in ideas”—even ideas that the overwhelming majority of people might find distasteful or discomforting. . . . [T]he First Amendment “ordinarily” denies a State “the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence.” . . . The First Amendment affords protection to symbolic or expressive conduct as well as to actual speech. . . .

“ ‘The protections afforded by the First Amendment, however, are not absolute, and we have long recognized that the government may regulate certain categories of expression consistent with the Constitution.. . . The First Amendment permits “restrictions upon the content of speech in a few limited areas, which are ‘of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.’ ”...

“ ‘. . . [A] State may punish those words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” . . . Furthermore, “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” . . . And the First Amendment also permits a State to ban a “true threat.” . . .

“ ' “True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. . . . The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.”[ . . . Intimidation in the constitutionally proscribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.]’ Virginia v. Black, 538 U.S. [343, 358-360], 123 S.Ct. 1536, 1547-48, 155 L.Ed.2d 535 (2003).

“The United States Court of Appeals for the Fifth Circuit has articulated the rationale underlying the removal of true threats from first amendment protection. ‘The notion that some expression may be regulated consistent with the first amendment . . . starts with the already familiar proposition that expression has special value only in the context of dialogue: communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one’s beliefs .... It is not plausible to uphold the right to use words as projectiles where no exchange of views is involved.’ . . . Shackelford v. Shirley, 948 F.2d 935, 938 (5th Cir. 1991)____

“That court further stated that, ‘[a]s speech strays further from the values of persuasion, dialogue and free exchange of ideas the first amendment was designed to protect, and moves toward threats made with specific intent to perform illegal acts, the state has greater latitude to enact statutes that effectively neutralize verbal expression.’ Shackelford v. Shirley, supra, 948 F.2d at 938. Finally, that court concluded that, ‘as expansive as the first amendment’s conception of social and political discourse may be, threats made with specific intent to injure and focused on a particular individual easily fall into that category of speech deserving no first amendment protection.’ Id. .. . [W]e must distinguish between true threats, which, because of their lack of communicative value, are not protected by the first amendment, and those statements that seek to communicate a belief or idea, such as political hyperbole or a mere joke, which are protected. . . .

“In the context of a threat of physical violence, ‘[w]hether a particular statement may properly be considered to be a threat is governed by an objective standard—whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault. . . . Although a threat must be distinguished from what is constitutionally protected speech . . . this is not a case involving statements with a political message. A true threat, where a reasonable person would foresee that the listener will believe he will be subjected to physical violence upon his person, is unprotected by the first amendment.’ . . . Moreover, ‘[ajlleged threats should be considered in light of their entire factual context, including the surrounding events and reaction of the listeners.’ . . .” (State v. DeLoreto (2003) 265 Conn. 145 [827 A.2d 671, 679-681], citations omitted; accord, Corales v. Bennett (9th Cir. 2009) 567 F.3d 554, 563-564; Smithfield Foods v. United Food and Commercial (E.D.Va. 2008) 585 F.Supp.2d 789, 804.)

Under an objective standard, the court’s inquiry focuses on whether a reasonable person would foresee that the speaker’s or author’s statement would be interpreted by the recipient as a serious expression of intent to inflict bodily harm. (See Fogel v. Collins (9th Cir. 2008) 531 F.3d 824, 831; State v. DeLoreto, supra, 827 A.2d at p. 680.) The objective standard is sometimes called the “reasonable recipient” standard. (See U.S. v. Parr (7th Cir. 2008) 545 F.3d 491, 499; U.S. v. Fulmer (1st Cir. 1997) 108 F.3d 1486, 1491.) Some courts, however, apply a subjective standard. Under that approach, a true threat requires proof that the speaker or author intended the speech as a threat of bodily harm. (See Fogel v. Collins, supra, 531 F.3d at pp. 831-833; U.S. v. Parr, supra, 545 F.3d at pp. 498-502.) “[T]he true threat determination is informed by but not limited to what the recipient or target of the alleged threat knew about the defendant. Contextual information— especially aspects of a defendant’s background that have a bearing on whether his statements might reasonably be interpreted as a threat—is relevant and potentially admissible regardless of whether the recipient or targeted victim had full access to that information.” (U.S. v. Parr, supra, 545 F.3d at p. 502.) The subjective standard may appropriately be called the “actual intent” standard. (See U.S. v. Patillo (4th Cir. 1970) 431 F.2d 293, 298, affd. on rehg. en banc (4th Cir. 1971) 438 F.2d 13; U.S. v. Ogren (C.A.A.F. 2001) 54 M.J. 481, 486.)

Federal courts are divided on whether the applicable standard should be objective or subjective. (See U.S. v. Parr, supra, 545 F.3d at pp. 498-500 & fn. 2; State v. Johnston (2006) 156 Wn.2d 355, fn. 5 [127 P.3d 707, 710].) This split of authority is attributable to the Supreme Court’s decision in Virginia v. Black, supra, 538 U.S. 343, and has been acknowledged in California (see Levin v. United Air Lines, Inc. (2008) 158 Cal.App.4th 1002, 1019, fn. 21 [70 Cal.Rptr.3d 535]). But our courts have not resolved the issue. (Compare In re M.S. (1995) 10 Cal.4th 698, 710 [42 Cal.Rptr.2d 355, 896 P.2d 1365] [“When a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection.”] and USS-Posco Industries v. Edwards (2003) 111 Cal.App.4th 436, 444-446 [4 Cal.Rptr.3d 54] [1st Amend, does not protect threats that cause listeners to fear for their safety] with Levin v. United Air Lines, Inc., supra, at pp. 1019-1025 & fn. 21 [noting split of authority but declining to resolve issue where plaintiff who brought suit for false imprisonment had been arrested for making false bomb report, not threat of bodily harm].) We need not decide which standard is the correct one because we apply both of them. (See pt. II.B., post; Fogel v. Collins, supra, 531 F.3d at p. 831.)

2. Public Issue

The anti-SLAPP statute applies where “[a] cause of action against a person aris[es] from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .” (§ 425.16, subd. (b)(1), italics added.)

As used in the statute, “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest', (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” (§ 425.16, subd. (e), italics added; see Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-1118, 1123 [81 Cal.Rptr.2d 471, 969 P.2d 564] [discussing types of statements covered by anti-SLAPP statute].) The R.’s contend that plaintiffs’ complaint falls within the third clause of section 425.16, subdivision (e).

The anti-SLAPP statute contains no definition of “public issue” or “public interest.” That might be attributable to an assumption that “ ‘ “no standards are necessary because [judges and attorneys] will, or should, know a public concern when they see it.” ’ ” (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1122, fn. 9; see Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 117 [1 Cal.Rptr.3d 501].)

“ ' “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” . . .’ ” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1478 [74 Cal.Rptr.3d 1], citation omitted; accord, Navellier v. Sletten (2002) 29 Cal.4th 82, 91-93 [124 Cal.Rptr.2d 530, 52 P.3d 703].)

“ ‘ “The definition of ‘public interest’ within the meaning of the antiSLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. “Although matters of public interest include legislative and governmental activities, they may also include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.” . . .’ ” (Kurwa v. Harrington, Foxx, Dubrow & Canter, LLP (2007) 146 Cal.App.4th 841, 846 [53 Cal.Rptr.3d 256], citations omitted; accord, Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [102 Cal.Rptr.2d 205].)

In general, “[a] public issue is implicated if the subject of the statement or activity underlying the claim (1) was a person or entity in the public eye; (2) could affect large numbers of people beyond the direct participants; or (3) involved a topic of widespread, public interest.” (Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 814 [6 Cal.Rptr.3d 675]; accord, World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172 Cal.App.4th 1561, 1573 [92 Cal.Rptr.3d 227]; Century 21 Chamberlain & Associates v. Haberman (2009) 173 Cal.App.4th 1, 9 [92 Cal.Rptr.3d 249].) “[T]o satisfy the public issue/issue of public interest requirement in situations where the issue is of interest only to a limited, but definable portion of the public, such as a private group, organization, or community, ‘the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.’ ” {Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 738 [87 Cal.Rptr.3d 347]; accord, World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc., supra, at pp. 1572-1573.)

“ ‘The fact that “a broad and amorphous public interest” can be connected to a specific dispute is not sufficient to meet the statutory requirements’ of the anti-SLAPP statute. ... By focusing on society’s general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based, defendants resort to the oft-rejected, so-called ‘synecdoche theory of public issue in the anti-SLAPP statute,’ where ‘[t]he part [is considered] synonymous with the greater whole.’ ... In evaluating the first [step] of the anti-SLAPP statute, we must focus on ‘the specific nature of the speech rather than the generalities that might be abstracted from it. . . .’ ” (World Financial Group, Inc. v. HBW Ins. & Financial Services, Inc., supra, 172 Cal.App.4th at p. 1570, citations omitted; accord, Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 [2 Cal.Rptr.3d 385]; Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 [1 Cal.Rptr.3d 390].)

3. Parties’ Burdens on the Motion

“[The anti-SLAPP statute] requires the [trial] court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685], italics added.)

Put another way, “a defendant seeking to strike a plaintiff’s complaint under section 425.16 has the burden of making a prima facie showing that the plaintiff’s allegations are subject to that section. . . . Only if the defendant satisfies that burden, will it then fall to the plaintiff to establish the required ‘probability’ of success. . . . The defendant’s burden requires that it demonstrate that the plaintiff’s cause of action arose from some act of the defendant that was taken in furtherance of the defendant’s constitutional rights of petition or free speech.” (Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1397 [126 Cal.Rptr.2d 560], italics added & omitted, citations omitted; accord, Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315-316 [86 Cal.Rptr.3d 288, 196 P.3d 1094].)

“ ‘The Legislature did not intend that in order to invoke the special motion to strike the defendant must first establish [his or] her actions are constitutionally protected under the First Amendment as a matter of law. If this were the case then the [secondary] inquiry as to whether the plaintiff has established a probability of success would be superfluous.’ ” (Navellier v. Sletten, supra, 29 Cal.4th at pp. 94—95, italics added; accord, Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 740 [3 Cal.Rptr.3d 636, 74 P.3d 737].)

Under the first step, the defendant must make a showing that the complaint is based on protected activity. (See Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67; World Financial Group, Inc. v. HEW Ins. & Financial Services, Inc., supra, 172 Cal.App.4th at p. 1568.) Some courts have described the requisite showing as “prima facie”; some have referred to it as “threshold”; and some have used “prima facie” and “threshold” interchangeably. (See, e.g., Rezec v. Sony Pictures Entertainment, Inc. (2004) 116 Cal.App.4th 135, 139 [10 Cal.Rptr.3d 333] [prima facie showing]; Manhattan Loft, LLC v. Mercury Liquors, Inc. (2009) 173 Cal.App.4th 1040, 1049 [93 Cal.Rptr.3d 457] [same]; Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67 [threshold showing]; Episcopal Church Cases (2009) 45 Cal.4th 467, All [87 Cal.Rptr.3d 275, 198 P.3d 66] [same]; Club Members for an Honest Election v. Sierra Club, supra, 45 Cal.4th at pp. 315-316 [prima facie showing and threshold showing]; Gallimore v. State Farm Fire & Casualty Ins. Co., supra, 102 Cal.App.4th at pp. 1396-1397 [same].) The term “prima facie” can be a source of confusion because it has several meanings. (See, e.g., Koch v. Specialized Care Services, Inc. (D.Md. 2005) 437 F.Supp.2d 362, 378-380; Dolan v. Powers (Mo.Ct.App. 2008) 260 S.W.3d 376, 385; Berry v. State (Fla.Dist.Ct.App. 1984) 453 So.2d 197, 198; In re Napp Technologies, Inc. (2000) 338 N.J. Super. 176 [768 A.2d 274, 279 & fn. 3]; Black’s Law Diet. (8th ed. 2004) p. 1228, cols. 1, 2 [defining “prima facie” and “prima facie case”].) The anti-SLAPP statute itself does not use either “prima facie” or “threshold,” but simply states that “[a] cause of action” is “subject to a special motion to strike” if it "aris[es] from any act . . . in furtherance of the person’s right of petition or free speech ... in connection with a public issue.” (§ 425.16, subd. (b)(1), italics added.) Regardless of whether “prima facie” or “threshold” is the judicially created term of choice, the result should be the same.

Although we “generally presume the validity of the claimed constitutional right in the first step of the anti-SLAPP analysis, and then permit the parties to address [that] issue in the second step of the analysis, if necessary” (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1089 [114 Cal.Rptr.2d 825]), the general presumption is not appropriate where, as here, the “statement or writing” (§ 425.16, subd. (e)(3)), on its face, is a threat of bodily harm, and all of the causes of action are based on the same statement or writing.

Accordingly, to prevail on the first step under the anti-SLAPP analysis, the R.’s must demonstrate that R.R.’s posted message is protected speech and that it was made in connection with a public issue. We conclude the R.’s failed in both respects.

B. Free Speech Under the Anti-SLAPP Statute

As noted, the First Amendment does not protect true threats— “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” (Virginia v. Black, supra, 538 U.S. at p. 359.) “The speaker need not actually intend to carry out the threat.” (Id. at pp. 359-360.) “ ‘A true threat is a serious one, not uttered in jest, idle talk, or political argument.’ ” (U.S. v. Fuller (7th Cir. 2004) 387 F.3d 643, 646.) The First Amendment protects parody, rhetorical hyperbole, and loose, figurative, or hyperbolic language. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 849 [111 Cal.Rptr.2d 582]; Milkovich v. Lorain Journal Co. (1990) 497 U.S. 1, 21 [111 L.Ed.2d 1, 110 S.Ct. 2695]; Hustler Magazine v. Falwell (1988) 485 U.S. 46, 51, 56 [99 L.Ed.2d 41, 108 S.Ct. 876].)

As a preliminary matter, we observe that “[o]nline bullying, called cyberbullying, happens when teens use the Internet, cell phones, or other devices to send or post text or images intended to hurt or embarrass another person. [][]... ffl Contrary to what cyberbullies may believe, cyberbullying is a big deal, and can cause a variety of reactions in teens. . . . [|] . . . [fj[] Many youth experience a variety of emotions when they are cyberbullied. Youth who are cyberbullied report feeling angry, hurt, embarrassed, or scared.” (National Crime Prevention Council, Cyberbullying [as of Mar. 15, 2010].) “Children have killed each other and committed suicide after having been involved in a cyberbullying incident, [f] Cyberbullying is usually not a one time communication, unless it involves a death threat or a credible threat of serious bodily harm.” (Stop Cyberbullying [as of Mar. 15, 2010].) “In studies of middle and high school students, ... the most common way that children and youth reported being cyberbullied was through instant messaging. Somewhat less common ways involved the use of chat rooms, emails, and messages posted on Web sites.” (Cyberbullying [as of Mar. 15, 2010], italics added, citation omitted.)

“Cyberbullying has increased in recent years. In nationally representative surveys of 10-17 year-olds, twice as many children and youth indicated that they had been victims and perpetrators of online harassment in 2005 compared with 1999/2000 . . . .” (Cyberbullying [as of Mar. 15, 2010].)

1. Reasonable Recipient Standard

Under the objective standard for true threats, we begin our analysis with the text of R.R.’s posted message: “Hey [D.C.], I want to rip out your fucking heart and feed it to you. I heard your song while driving my kid to school and from that moment on I’ve . . . wanted to kill you. If I ever see you I’m . . . going to pound your head in with an ice pick. Fuck you, you dick-riding penis lover. I hope you bum in hell.”

This message is unequivocal. A serious expression of intent to inflict bodily harm is conveyed no less than three times by the phrases “rip out your fucking heart,” “want[] to kill you,” and “pound your head in with an ice pick.” That these words produce grotesque and exaggerated images does not lessen the gravity of the threat. An intent to harm the recipient is also shown by the use of “fuck you,” “bum in hell,” and “dick-riding penis lover,” indicating that the author is angry. The message does not even hint that it is the result of the author’s reaction to the recipient’s Web site.

The threat in this case was not merely a few words shouted during a brawl; it was a series of grammatically correct sentences composed at a computer keyboard over a period of at least several minutes. Even after the message was typed, the author still had to decide whether to send it. He placed his cursor over “send” and clicked the mouse or touchpad. Thus, the content of the message and its transmission show deliberation on the part of the author.

The R.’s contend that the reference to the use of an ice pick and the biological impossibility of eating one’s own heart make clear that the message was a joke. They also argue that, on its face, the message indicates that the underlying motivation was a dislike of the recipient’s song, not his perceived sexual orientation. These contentions are unpersuasive or irrelevant. The true threat analysis does not require that a speaker intend to inflict bodily harm in the precise manner described in a threat. Nor does the speaker have to intend to kill his victim. Rather, if the threat conveys a serious expression of an intent to inflict bodily harm at all or in any manner, it is not constitutionally protected. Further, a reasonable person would not interpret the threat here as being motivated by a dislike of the recipient’s song. That a one-time hearing of a song on the radio could generate so vitriolic a reaction defies reason. Moreover, this was a threat made by a high school student to a fellow student. Was it reasonably foreseeable to the teenage speaker that the message would be interpreted by another teenager as a threat of bodily harm? We think so. A high school bully might well use similar words. In addition, the true threat analysis focuses on intent, not motive. Whether a misperception of D.C.’s sexual orientation motivated R.R. is relevant in determining liability under the hate crimes statutes (see Civ. Code, §§51.7, 52.1) but not in resolving the First Amendment issue.

Other evidence supports the conclusion that a reasonable person would foresee that R.R.’s message would be viewed as a threat of bodily harm. D.C.’s father closed down the Web site immediately upon seeing the derogatory and threatening posts and contacted the police. The police thought it prudent that D.C. not return to Harvard-Westlake until their investigation was completed and so advised D.C.’s father. D.C. returned to the school only once—for a PS AT class under the watchful eye of his father. When the police investigation dragged on, D.C., who was in his junior year, withdrew from Harvard-Westlake to avoid missing more classes. Plaintiffs moved to Northern California, where D.C. attended another school. D.C.’s father had to travel back and forth from the family’s new residence to Los Angeles for business purposes.

It was not until sometime after plaintiffs discovered the posts that they learned the names of the students who were responsible. Consequently, the way in which plaintiffs reacted to the posts was not affected by information about the specific characteristics, beliefs, or charitable activities of any of the students. Under a standard of reasonableness, plaintiffs were not required to know that the author of R.R.’s message was in a self-described “playful mood” or that he was an exemplary individual.

Many of the posts at D.C.’s Web site did not constitute threats of any kind, and plaintiffs admit as much, stating that they perceived only six of the 34 derogatory posts as serious threats of bodily harm. That the majority of posts may have been nonthreatening does not lessen the effect of R.R.’s post. The law did not obligate plaintiffs to view all of the posts as having the same purpose or intent. In the opinion of D.C.’s father: “[R.R.’s message] was the most evil and malicious of the postings and looked to come from a parent rather than a student. My family was terrified and made physically nauseous from the threat.” Accordingly, plaintiffs sued only six students.

The R.’s emphasize that D.C. did not see the messages posted at the Web site. That is beside the point. He subsequently learned about the messages and reacted with fear for his own safety, eventually requiring medical attention for panic attacks. “[A] prohibition on true threats ‘protects] individuals from the fear of violence’ and ‘from the disruption that fear engenders,’ in addition to protecting people ‘fr