Prosser on True Threats

Justice David Prosser was once considerably less tolerant of threatening language than six of six colleagues. 13-year-old Douglas D. was "a troubled young man" who wrote in a creative writing assignment that he was going to cut off his teacher's head with a machete.

The court concludes that a true threat is determined using an objective reasonable person standard. "A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views or other similarly protected speech." . . .

Today our country is consumed by the outbreak of violence in public schools. Threats of violence in schools must be taken seriously. Almost inevitably these threats produce fear among students and teachers. They inflict harm and impair the atmosphere for learning. Sometimes they create panic. ... The potential for panic suggests an alternative analysis that the parties and the courts in this case have not explored. . . .

Because of the epidemic of violence in public schools, threats against students, teachers, and administrators in a school setting should not be afforded First Amendment protection. Based upon a "falsely shouting fire in a theatre" or "panic" analysis, school threats are incendiary per se. Whether these threats also violate some criminal statute depends upon the evidence in each situation. . . . I respectfully dissent.

State v. Douglas D., 2001 WI 47

The "panic" analysis is Prosser's own. I don't know about you, but I panic in a sense when I read these stories about the Wisconsin Supreme Court.