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State tells appellate court texts and photo were a 'call to arms'; defense says messages were protected speech
Summary
In oral arguments before an appellate panel, the State of Washington urged that texts and a photograph sent by appellant Kale Byers—including an image of firearms and language asking recipients to contact him about "shutting down the clinic"—were a true threat outside First Amendment protection; defense counsel argued the communications were political and religious speech that should prompt vacatur of the conviction.
The State of Washington told an appellate panel that a series of text messages and an attached photograph sent by appellant Kale Byers amounted to a call to arms and a true threat, while defense counsel argued the messages were protected political or religious speech and asked the court to vacate the conviction.
Attorney Lauren Boyd, representing the State of Washington, told the court the text message began with a photograph showing an assault rifle, a handgun, multiple magazines and a dagger and "the defendant's words themselves contain violence. They are a call to arms." Boyd said the message "asks them to meet him at the Planned Parenthood with weapons" and that the reasonable implication was to shoot at the clinic, placing the communications outside First Amendment protection.
Defense counsel Kyle Burney argued the opposite, saying the conviction rests on political and religious speech that the Constitution protects. "This court must vacate the conviction because it rests on political and religious speech that is protected by the First Amendment," Burney said, and he pointed to Supreme Court precedent tracing protection for hyperbolic political speech back to Watts v. United States and related cases.
Why it matters: The appeal centers on whether the texts should be treated as protected advocacy or as a true threat that a reasonable recipient would view as a serious expression of intent to commit violence. The panel questioned whether context — including the relationship between appellant and a pastor who reported the messages — and evidence such as a photograph of firearms and weapons later found in the defendant's car, changes the analysis.
The State urged that context and imagery matter together. Boyd told the court that the photograph and wording together "create violent imagery, including both the actual image itself and the images that the words create," and that jury findings showed the State met its burden beyond a reasonable doubt on both objective and subjective elements the court must consider under recent precedent adding a subjective Counterman component to the analysis.
Burney countered that many of the cases where speech was punished involved immediate, specific threats or direct incitement, and that advocacy of violence in some doctrines remains protected unless it is directed to and likely to produce imminent unlawful action. He emphasized the lack of immediate, executed violence after the messages and asked the court to view the communications as rhetorical and political.
The panel also discussed evidentiary questions raised at trial, including whether photographs of firearms and their later discovery in the defendant's car were admissible and whether the defense preserved objections tied to staleness and nexus. Boyd said those photos were relevant to identity and seriousness because the weapons in the car matched the image sent in the message.
No decision was announced at the close of oral argument. The court thanked counsel for helpful briefs and said it would take the remainder of the arguments on its non-oral argument calendar.
