¶1¶22 (concurring in part, dissenting in part) — I concur the jury was misinstructed but would dismiss, not remand. As conceded by the majority, a rule of independent appellate review applies in First Amendment cases, majority at 365 (citing State v. Kilburn, 151 Wn.2d 36, 50, 84 P.3d 1215 (2004)) and “whether a statement constitutes a true threat is a matter subject to independent review.” Majority *367at 365. Independent review may be inappropriate when inadmissible evidence was considered; however, where the error is in the jury instructions and the evidence would be the same on retrial, I can see no reason why we should not independently review the evidence to determine whether in the interest of free speech the speaker should be spared the burden of yet another trial. Nor does the majority cite authority to the effect that a new trial may be forced absent independent review.
¶2*367|23 Based on an independent review of the record, I conclude Mr. Johnston is correct that there is insufficient evidence of a true threat and would therefore reverse and dismiss.