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First Amendment – Overbreadth – “True Threat” – False Bomb Scare

State v. Robert T., 2008 WI App 22For Robert T.: Bradley J. Bloch

Issue: Whether § 947.015 (2003-04) (“Bomb Scares”) is overbroad and therefore cannot support prosecution for a phoned-in but false bomb threat.


¶12      Robert T. argues that the statute suffers from overbreadth because it prohibits speech that could be protected. We disagree. Prior Wisconsin opinions have held that only “true threats” are punishable, and consequently, Wis. Stat. § 947.015 must be read with the limitation that only a false bomb scare that constitutes a “true threat” can be charged.

¶15      Indeed, this is exactly what the supreme court of the state of Washington did with a similar statute prohibiting threats. In State v. Johnston, 127 P.3d 707, 708-09 (Wash. 2006), an intoxicated man, Tracey Johnston, made various threats following his arrest at the airport. He was charged with making threats to bomb or injure property, contrary to the Washington statutes. Id. at 709. At his jury trial, the trial court refused to give an instruction offered by Johnston defining a “true threat.” Id. In reversing the conviction, the supreme court explained:

            Here, the statute reaches a substantial amount of protected speech. For example, threats made in jest, or that constitute political statements or advocacy, would be proscribed unless the statute is limited to true threats. Accordingly, the statute must be limited to apply to only true threats.

Id. at 711-12.

¶16      Wisconsin Stat. § 947.015 must be read with the requirement that only “true threats” can be prosecuted. Here, the police who responded to Robert T.’s phone call believed the threat was real. Also, Robert T. apparently intended to frighten the listener; thus, his call appears to fall within the ambit of a “true threat.” Therefore, the statute is constitutional.

The court rejects Robert T.’s interpretation of Virginia v. Black, 538 U.S. 343 (2003) that a “true threat” is limited to threats to a specific person or group:

¶19      In addition, we note that Wisconsin law has never limited a “true threat” to one which is directed at a person or group of persons and threatens bodily harm or death. Also, our research has been unable to find any cases which have adopted Robert T.’s interpretation of Virginia. Since Virginia was decided, numerous states have dealt with related statutes criminalizing bomb scare/threat and false alarms and numerous prosecutions have taken place for threatening to blow up property. See, e.g.Johnston, 127 P.3d 707; State v. Gibson, No. 2007-G-2755, slip op., 2007 WL 4150950 (Ohio Ct. App. Nov. 21, 2007); see also United States v. Brahm, ___ F. Supp.2d ___, 2007 WL 3111774, at *1 (D.N.J. Oct. 19, 2007) (charging a Wisconsin resident for posting information on a website that he knew to be false concerning acts that would cause damage to buildings or vehicles, and involving use of weapons of mass destruction and radiological dispersion devices). Certainly if the Supreme Court meant to severely limit the definition of “true threats” to apply only to threats of bodily harm or death directed to a person or group of persons, these other prosecutions would have been challenged. They have not been, and we are satisfied that Robert T.’s interpretation is wrong. Consequently, the trial court erred in so finding. Thus, the trial court’s order is reversed and remanded with directions that the trial court reinstate the delinquency petition.

But compare, Fogel v. Collins, 9th Cir No. 06-15395, 6/27/08 (“In most cases where courts have found that speech constituted a true threat, the threatening speech was targeted against specific individuals or was communicated directly to the subject of the threat.”)


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