Although many educators may feel hard-pressed to define a “threat,” most are confident that they would recognize one when it occurs. Problems often arise, however, when school personnel try to take legal action against students whom they perceive as making threats to harm others. A student who uses what appears to be threatening language simply may be exercising a First Amendment right to express an opinion, a right protected from governmental interference or suppression, even in the school setting. Under the United States legal system, what a reasonable educator might categorize as a threat may or not be a “true threat” under the law.
At a Washington, D.C., political rally in August 1966, an 18-year-old unhappy with his 1-A draft classification declared, “If they ever make me carry a rifle, the first man I want to get in my sights is LBJ,” referring to then-President Lyndon B. Johnson. The young man, Robert Watts, was charged with and convicted of a felony under a federal statute that makes it a crime to “willfully and knowingly” threaten the president. The U.S. Supreme Court reversed his conviction three years later in what became the seminal Court decision distinguishing between threats and “true threats.” Recognizing a “profound national commitment to . . . debate on public issues,” including speech that may be “vehement, caustic, and unpleasantly sharp,” the Court found that the youth's statement was merely “political hyperbole.” Watts, the Court decided, had not uttered a true threat. Unfortunately, the Supreme Court declined to help educators by explaining what would make ordinary threatening-sounding words into a true threat.
Deciding What Constitutes a True Threat
Fast-forward to February 1993. Sarah Lovell, a 15-year-old California high school student, has been trying all day to get her class schedule changed. She has been shuffled back and forth between the assistant principal's and guidance offices. Finally, she thinks her schedule is settled, but when Linda Suokko, her guidance counselor, enters the changes into the master schedule, Suokko sees that the assistant principal has approved Sarah for courses that are already overloaded. Suokko tells the girl that she may not be able to make the changes. Sarah loses her patience and, according to Suokko, says, “If you don't give me this schedule change, I'm going to shoot you.” Although Sarah apologizes immediately and insists that she did not say those exact words, her principal suspends her and files a strongly worded student referral form as part of her permanent record.
When Sarah's parents brought suit to have the referral form removed from her file, the Court of Appeals for the Ninth Circuit upheld the principal's actions, ruling that Sarah's communication to Suokko was a “true threat.” Alleged threats, according to the Ninth Circuit, are judged by an objective standard that focuses on the speaker. The test is whether a reasonable person uttering a communication would foresee that the listener would interpret the statement as a serious expression of intent to harm. True threats, the Ninth Circuit emphasized, are not among the categories of expression protected by the First Amendment. Sarah's principal, therefore, was justified in suspending Sarah and filing the student referral form. In addition to the “objective speaker” test, the Ninth Circuit also requires that statements appearing to be threats “should be considered in light of their entire factual context.” If the words uttered and the surrounding circumstances are so “unequivocal, unconditional, immediate, and specific” that they convey a seriousness of purpose and the prospect of being carried out in the near future, then the statement is a true threat.
Courts in the Ninth Circuit, then, like Sarah Lovell's court, will rule that a putative threatening statement is a true threat if the speaker, as a reasonable person, should have foreseen that the listener would interpret the statement uttered as a threat of bodily harm or assault. The burden is on the speaker to reasonably foresee an unpleasant reaction to what was said, considering all the circumstances. Sarah, as a reasonable person, should have known her statement would upset Suokko. The Ninth Circuit's definition of true threat says nothing about how reasonable the listener must be. Suokko could have completely overreacted to Sarah's words; in fact, she may even have misheard the student. Practically speaking, the Ninth Circuit requires speakers to know in advance their listeners' reactions. Moreover, using the Ninth Circuit's reasonable speaker standard, one wonders whether a frustrated teenager in Sarah's circumstances could ever be considered reasonable.
If Sarah Lovell had expressed her frustration in another state—for example, in Virginia or Maryland, both of which are bound by the standards adopted by the Fourth Circuit Court of Appeals—the standard that the court applied would have been different. Courts in the Fourth Circuit judge whether a communication is a true threat solely by considering the communication's effect on the recipient. Whether or not the speaker had any idea, or even considered, how the listener would react to her allegedly threatening communication is unimportant in complaints litigated in Virginia or Maryland.
This point may not have made a difference in Sarah's case, because Suokko, the listener, also perceived Sarah's words as a threat. Nevertheless, the judicial standards in many states are different and have different implications. Focusing solely on the listener's reaction may negate totally consideration of the speaker's intent in the communication. Focusing solely on what a speaker should have known in advance about the listener's reaction presumes that the speaker was capable of rational thought when she may have been completely consumed by anger or frustration. Deciding whether a communication is a true threat that is actionable under the law, therefore, depends on the analysis adopted by the relevant jurisdiction.
Threats Delivered in Different Forms
In addition to speaker and listener tests, other jurisdictions have adopted hybrid tests or burdened traditional tests with specific requirements (e.g., that the threat be directly communicated to the intended victim). Technology that facilitates communication at a distance complicates the analysis. For example, either party to a telephone conversation may misperceive communications, because the speaker and listener can only hear each other but not distinguish visual cues. Similarly, nonverbal modes of communication, like works of art, confound traditional true threat analyses. Poetry may do the same.
No comments:
Post a Comment