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Defense win! Drawing child intended to keep private wasn’t true threat

State v. A.N.G., 2019AP1100, 5/21/20, District 4 (one-judge decision; ineligible for publication); case activity

A.N.G. and a middle-school classmate collaborated on a drawing depicting a “cartoon-style bomb,” a school, and a body on the ground. Two weeks later, a teacher caught them passing a note, which turned out to be the drawing. Naturally, the state initiated quasi-criminal proceedings alleging A.N.G. had committed disorderly conduct and made a “terrorist threat.” A.N.G. was found delinquent, but the court of appeals now reverses, saying the adjudications violate the First Amendment.

Wisconsin has articulated a test for whether speech is a “true threat” unprotected by the First Amendment. That’s found in State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 762. As quoted by the court here, the non-exhaustive factors include

how the recipient and other listeners reacted to the alleged threat, whether the threat was conditional, whether [the threat] was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim on other occasions, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.

(¶11).

Though it takes pains to emphasize that it is not “dispositive,” the court of appeals notes the first factor is a big problem for the state: all the evidence shows, and the trial court found, that A.N.G. didn’t intend to communicate anything to the school authorities or his fellow students: he was trying to keep the drawing secret. The state, relying on State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, argues that intent to communicate is irrelevant. (¶19). But, as the court points out, this is a misreading of Douglas D., which was talking about intent to carry out the threat, not intent to make a threat. The opinion goes on to note that the United States Supreme Court has explained that “‘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.” Virginia v. Black, 538 U.S. 343, 359 (2003) (emphasis added). (¶20). As to the state’s argument that the boys should have known their drawing could be discovered, the court says this approach “would turn this part of the analysis on its head. The issue regarding the sharing of the drawing is whether the drawing was intended as a true threat, not whether the boys were not as careful as they could have been in handling a drawing that they meant to keep private.” (¶16).

Though not “dispositive,” the lack of any intent to communicate certainly colors the court’s thoughtful analysis of the remaining factors. For example, it rejects the state’s claim that the school officials were “recipients” of the purported threat in the Perkins sense, but goes on to note that even if they were, their reaction was decidedly mild–they didn’t evacuate or search the school or take any other action suggesting they really thought they were really being threatened. (¶¶23-25). Likewise, given the lack of intent to “communicate” to anyone, you can’t say the threat was “communicated directly to the victim.” (¶32).

In sum: nobody threatened anybody here. It’s nice when careful constitutional reasoning and common sense end up in the same place, eh?

 

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