JOSEPH, Mich. – A Michigan prosecutor is filing criminal charges against a 13-year-old student over a private after school conversation on the smartphone app Kik that included “loathsome and despicable racial comments.”

The Berrien County Prosecutor’s Office released a statement today regarding seven white male students at Upton Middle School who “were making loathsome and despicable racial comments amongst themselves” through a group conversation on Kik in October, Fox 17 reports.

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The prosecutor rightly points out that the conversation is protected by the First Amendment to the United States Constitution, but explained why at least one of the students will face a criminal charge of malicious use of a telecommunications system as a result of the ordeal.

The St. Joseph Department of Public Safety received snap shots of the private conversation in late October, and said at the time the talk involved Upton Middle School students but no specific threats or mentions of weapons, according to the news site.

The release from Berrien County Prosecutor’s Office was published in its entirety by WSBT.

Prosecutor Michael J. Sepic wrote Dec. 21 that police investigated seven students involved in the incident and determined the content of the conversation is protected by the First Amendment, and do not meet the legal threshold for Ethnic Intimidation, a two year felony for intimidating people based on race.

“The investigation in this case by the city of St. Joseph Police Department revealed there was no evidence that the content of the messaging, nor the individuals involved, would meet the requirements of believing some act of physical contact or property damage would occur,” according to the statement.

But another crime – malicious use of a telecommunications system – applies to one of the students, who invited a black student to the Kik conversation “knowing he would be subjected to the previous loathsome and despicable racial conversation,” the prosecutor alleges.

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“That participant, a 13 year old, white male, of Benton Harbor, is being petitioned in to family court on the above noted misdemeanor charge of malicious use of a telecommunications system,” the release states. “The Berrien County Prosecutor’s Office will seek informal treatment of him in the juvenile court system, which, if accepted, will result in no recorded disposition.”

In other words, Sepic is charging the student with malicious use of telecommunications to teach him a lesson. If the student agrees that he maliciously invited the black student to the Kik group to rub his face in the racist remarks, he’ll be punished but the punishment won’t be on his permanent record.

It’s unclear what the prosecutor’s next course of action will be if the student pleads not guilty to the charge.

“The other individuals will not be petitioned as they did not direct those racial comments to another with the intent to intimidate or harass as their conversation was private and therefore protected by the First Amendment as noted above,” Sepic wrote.

“The decision not to prosecute those 6 individuals is based entirely upon the restrictions of the law noted above. The decision to prosecute the one minor is based upon the premise that such conversations are repugnant to our community’s sensibilities and that minor, and young people in general, need to know such conduct is not acceptable.”