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First Amendment – Speech – Criminalized Threat

State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725, reversing unpublished court of appeals decision
For Douglas D.: Eileen A. Hirsch, SPD, Madison Appellate

Issue: Whether purely written speech may be punished as disorderly conduct, § 947.01, even where no disturbance results.

Holding: The disorderly conduct statute, applied to speech alone, is neither overbroad nor “underbroad” (i.e., discriminating on the basis of content), and therefore “the First Amendment does not inherently bar the State from applying § 947.01 to unprotected speech, even if the unprotected speech is purely written speech.” ¶21.

Issue2: Whether a student’s writing assignment satisfied the requirements of disorderly conduct.

Holding: Though disorderly conduct “requires more than mere offensive speech or behavior,” threatening a public school teacher while in school is the type of conduct that may tend to cause or provoke a disturbance and therefore satisfy § 947.01. ¶28. However, the threat must be a “true” one¶¶31-32, and in this case the alleged threat, which was part of a 13-year-old boy’s creative writing assignment, was “impetuous” and at least partly in jest, and in context did not amount to a true threat. ¶39.

Companion case, to same effect — State v. A.S., 2001 WI 48, 243 Wis. 2d 204, 626 N.W.2d 725 (first amendment permits applying DC statute, § 947.01, to speech alone):

¶17 We conclude that application of the disorderly conduct statute to speech alone is permissible under appropriate circumstances. The right of free speech is not absolute. When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable.

State v. A.S. also sustained a DC conviction under a “true threat” exception to the first amendment:

¶23 In applying the test to A.S.’s statement, we conclude that his statements, as alleged in the petition, did constitute true threats. Under the totality of the circumstances, a reasonable speaker in the position of A.S. would foresee that reasonable listeners would interpret his statements as serious expressions of an intent to intimidate or inflict bodily harm. M.L. told him that his statements were scaring her. She asked him several times to stop making the statements. The recent events at Columbine High School, which A.S. made reference to during the course of his statements, heightened the anxiety of the listeners. A reasonable person in the position of A.S. had to know that his listeners were concerned about what had happened at Columbine and about what could happen if A.S. was determined to carry out his threats.

Also see People v. George T., Cal. SCt No. S111780, 7/22/04 (high school student’s “dark poetry,” which referred to bringing guns to school to kill students, enjoyed 1st amendemnt protecttion from criminal prosecution; note, however, that the result is narrowly fact-specific and turns on characterization of the poem as “ambiguous and plainly equivocal”). And, detailed discussion inPorter v. Ascension Parish, 5th Cir No. 04-30162, 12/10/04 (somewhat unusual facts in that Porter’s sketch of a violent siege was two years old and taken to school by his brother without his knowledge: “For such writings to lose their First Amendment protection, something more than their accidental and unintentional exposure to public scrutiny must take place.”)


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