The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

Free Speech

"Some References Are Just Sophomoric Attempts at Humor"

A Maryland court reverses a juvenile delinquency adjudication based on a supposed threat at school.


From In re J.W., decided Friday by the Maryland intermediate appellate court, in an opinion by Chief Judge Matthew Fader, joined by Judges Kathryn Grill Graeff and Paul E. Alpert:

After searching unsuccessfully for an item he left in a classroom, J.W., the appellant, said something to the effect that if he did not find the item he was going to shoot up or blow up his school or classroom. Although witnesses understood the 17-year-old's words as joking or "playing," rather than a serious expression of intent to do harm, the State brought two charges against J.W.: (1) disturbing school operations in violation of § 26-101(a) of the Education Article; and (2) knowingly threatening to commit a crime of violence "that would place five or more people at substantial risk of death or serious physical injury … if the threat were carried out," in violation of § 3-1001 of the Criminal Law Article. The Circuit Court for Charles County, sitting as a juvenile court, found that J.W. did not willfully disrupt school operations but found him "involved" in making a threat of mass violence. {A minor who is adjudicated by a juvenile court to be "involved" in an offense is not "convicted" of that offense, nor does the minor face "any of the civil disabilities ordinarily imposed by a criminal conviction."}

J.W., who was found delinquent and placed on three years' probation, contends that the circuit court erred in applying an objective standard to his conduct. He argues that the First Amendment required the State to prove that he subjectively intended to convey a threat of harm. He also contends that regardless of the standard, the evidence was insufficient to establish that he made a "true threat" that is not protected by the First Amendment. We agree that the evidence was insufficient to sustain the juvenile court's finding regardless of whether the standard is objective or subjective. Accordingly, we will reverse the judgment….

J.W. contends that because he "was joking when he made his comment," "the evidence was plainly insufficient to establish that [he] made a true threat." Based on the prevalence of active shooter drills and mass shootings, J.W. asserts, students today are highly aware of their vulnerability to violence at school, and, in that context, J.W. contends that his remark was a form of "gallows humor. Joking about a scary thing makes it a little less scary … [a]nd so sometimes kids joke about school shootings." He emphasizes that, shocking as it may seem that such "a comment could be made in jest, … none of the witnesses to the comment who testified (two students and a teacher) were [shocked by it]."

The juvenile court's finding that J.W.'s statement was a true threat is at odds with the evidence of how the statement actually was understood by those who heard it in context. Notably, none of the witnesses to J.W.'s statement perceived it as a serious expression of intent to harm others. The closest any of the witnesses came to such a conclusion was T.L. At the time she heard J.W.'s statement, T.L. perceived J.W. as being playful and believed that he made the comment "very jokingly." The next day, after being interviewed by the school administration and asked to provide a written statement, T.L. decided that the statement "wasn't very jokingly to me[.]"

It thus appears that it was the school's request that she provide a written statement about J.W.'s remarks that made T.L. start to think about them more seriously, not the remarks themselves and not J.W.'s manner, which she consistently described as playful or joking. T.B. also did not understand J.W.'s speech as a serious expression of intent to commit a crime of violence. She testified that the statement did not make her feel threatened or scared and she did not think that he was actually going to shoot or blow up the school. Mr. Carter similarly testified that he never felt threatened by J.W.'s statement, and he reported the incident to the administration not because he thought it was serious, but because it was not his "job to decide if the threat was real."

There was ultimately no evidence that anyone viewed the statement as a serious threat. To the contrary, the school's own investigation, which involved interviews of three other students, concluded that J.W.'s statement was not a threat, and the witnesses who testified all agreed that there was no expression of fear or disturbance in response to J.W.'s statement, either contemporaneously or following the incident. In sum, the State did not produce a single witness who perceived the statement as a true threat.

The juvenile court nonetheless concluded that J.W.'s remark was a true threat. In explaining its decision, the court referenced the words J.W. uttered, testimony that he was not good friends with other students in the classroom, and its own belief that, "[i]n the modern [era] … you just can't" make a threat to shoot people while in a school. In light of the evidence presented at trial, none of these factors provides a sufficient basis for finding J.W. involved in the prohibited conduct.

As discussed above, the words J.W. uttered must be viewed in context, not in a vacuum or against the background of different events. Here, the evidence was undisputed that, in context, those who heard J.W.'s speech did not view it as a serious threat. And although the court was correct that T.L. and T.B. were not good friends of J.W., they still viewed his comments as "playing" and joking. Thus, relying on the evidence and without resorting to speculation, all we know is that those who heard the remarks—the people who, as J.W. points out, heard the tone of his voice and saw "the expression on his face, the look in his eyes, his body language, his attitude and demeanor"—did not perceive them as a serious threat.

The court's statement that any projection of school violence should be taken seriously is undoubtedly true, but a strict liability standard for uttering words that could constitute a threat if uttered in a different context or in a different manner is inconsistent with the First Amendment and Article 40. Nothing in our opinion should be taken to minimize the horror and tragedy of school shootings or the risks posed by serious threats of school violence. Nor should anything in this opinion be understood to preclude or undermine the ability of schools to respond to such threats or impose appropriate disciplinary measures pursuant to policies and practices for preventing school violence. Here, J.W.'s school investigated his remarks, determined that they did not constitute a threat, and addressed the incident with a disciplinary sanction that is not before us. {At least some courts have found school disciplinary sanctions to be governed by different, more lenient standards than those for criminal prosecution of true threats.} …

A true threat is not idle or careless talk, exaggerated statements, or statements made in a joking manner. The First Amendment protection for statements that do not rise to the level of a true threat has been construed to encompass "the kind of hyperbole, rhetorical excesses, and impotent expressions of anger or frustration that in some contexts can be privileged even if they alarm the addressee." Particularly in the school setting, "some references are just sophomoric attempts at humor" that may be "'[d]istasteful and even highly offensive communication'" but do "'not necessarily fall from [f]irst [a]mendment protection as a true threat simply because of its objectionable nature.'" Haughwout v. Tordenti, 211 A.3d 1, 15 n.16 (Conn. 2019) (alterations in original) (quoting J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847, 860 (Pa. 2002)); cf. Burge v. Colton Sch. Dist. 53, 100 F. Supp. 3d 1057, 1060, 1068-69 (D. Or. 2015) (eighth grader's Facebook post about teacher, that "'[y]a haha she needs to be shot,'" "were not 'true threats'" because they "were meant and understood by his audience as a critique of [her] teaching skills and not the serious expression of intent to harm her"); Murakowski v. Univ. of Delaware, 575 F. Supp. 2d 571, 590 (D. Del. 2008) (college student's "racist, sexist, homophobic, insensitive, degrading" posts online, which "contain[ed] graphic descriptions of violent behavior," were "sophomoric, immature, crude and highly offensive in an alleged misguided attempt at humor or parody," but were not true threats); C.G.M., II v. Juvenile Officer, 258 S.W.3d 879, 880-83 (Mo. Ct. App. 2008) (12 year-old's statements to friend that "he may get dynamite from his dad for his birthday" and asking if the friend "wanted to help him blow up the school" was not a true threat when friend did not fear that threat would be carried out, and school did not consider it a threat); J.S., 807 A.2d at 858-60 (middle school student's post on his "Teacher Sux" web page, asking "why [the teacher] should die, show[ing] a picture of [the teacher's] head severed from her body and solicit[ing] funds for a hitman," when "taken as a whole, was a sophomoric, crude, highly offensive and perhaps misguided attempt at humor or parody. However, it did not reflect a serious expression of intent to inflict harm")….

We are not persuaded by the State's suggestion that school safety considerations or evidence that school officials treated J.W.'s statement as a potential threat requires a different analysis or result. Understandably and appropriately, authorities must be vigilant in responding to potential threats of violence in schools. Recalling Justice Holmes's oftcited example of unprotected speech from Schenck v. Ohio (1919), the State suggests that J.W.'s remark was the equivalent of falsely yelling fire in a crowded theater. Although we do not discount the possibility that a similar statement, made in a different school context, could very well fit that analogy, the evidence here demonstrates that the comparison is inapt. J.W.'s single oral remark, although highly inappropriate and undoubtedly ill-considered, indisputably caused no fear, panic, or immediate disruption. The school appropriately took the remark seriously, even if those who directly perceived it did not, and it was not hindered in doing so.