As early as the 1969 United States Supreme Court decision in Watts v. U.S., the Supreme Court ruled that true threats receive no First Amendment protection. Even though there may be some political or social value to threatening messages, there is an overriding governmental interest in protecting individuals from the fear of violence and the disruption it causes. Speech is not protected if it is obscene, defamatory, or amounts to “fighting words” which tend to incite an immediate breach of the peace or, by their very utterance, inflict injury. This speech is deemed to be of so little social value that any benefit potentially derived from it is clearly outweighed by society’s interest in order and morality. However, the Supreme Court later explained in the 1989 Texas v. Johnson decision that threats may qualify for First Amendment protection if the speech in question reflects an intent to convey a particularized message and is likely to be understood by people who see it.
Unfortunately, the Supreme Court has not clearly defined a test for determining what types of speech constitute a true threat with no constitutional protection and a threatening statement which may be protected. As a result, the lower courts have adopted a variety of tests to determine whether speech constitutes a true threat.
The 6th Circuit Court of Appeals has determined that “if a reasonable person would foresee that an objective rational recipient of the statement would interpret its language to constitute a serious expression . . . [then] the message conveys a ‘true threat.'” However, in the 2011 Third Circuit Court of Appeals case of J.S. v. Blue Mountain School District, the Third Circuit held that a general fear of a potential disturbance was not enough to prohibit the speech.
The Arkansas Supreme Court in Jones v. State of Arkansas determined that a student, who gave his rap song which threatened violence to another student, made a true threat. In doing so, the Arkansas Court considered a series of factors in determining whether speech constitutes a true threat, including (1) the reaction of the recipient of the speech; (2) whether the threat was conditional; (3) whether the speaker communicated the speech directly to the recipient; (4) whether the speaker had made similar statements in the past; and (5) whether the recipient had reason to believe the speaker could engage in violence. In comparison, in J.S., the Third Circuit held that a song with threatening lyrics could not support discipline where it was not directly communicated to the recipient and was never taken as a serious threat.
In 2001, the Louisiana Supreme Court in State ex rel R.T., ruled that a student could face criminal charges for saying that it would be easy to shoot students he didn’t like and that he was going to blow up the school. The state high court noted that the student made the comments only five days after the Columbine tragedy, and emphasized “the climate of fear already surrounding the school.”
A California appeals court ruled in 2002 that a student could not be criminally charged under an antithreat law for turning in a painting depicting extreme violence against a peace officer who, a month earlier, had cited the student for drug possession. The state appeals court noted that “a painting — even a graphically violent painting — is necessarily ambiguous.” The appeals court also noted that the student never showed the painting to the peace officer, but simply turned in the painting as a class project.
A recent 2013 Pennsylvania Superior Court decision, involving criminal charges of disorderly conduct and terroristic threats for statements made by a 19 year old student at Pottsville Area School District to another student, reversed the delinquency adjudication on the basis that the statement made did not create a hazardous or physically offensive condition under the criminal statute. T.H. had stated that he was going to bring his gun into school the next day and get everybody on his list. While not supporting the criminal charges, the Court was quick to point out that the School District’s response, searching T.H.’s locker and suspending him for ten days, was an appropriate response.
Many cases regarding true threats made by students are just now circulating through the state and federal courts. Consequently, school officials are advised to seek legal counsel in this evolving area of the law as the facts of each case govern the actions to be taken by school districts.