John Doe v. Pulaski School District

J.M., a male, and K.G., a female, began "going together" during their seventh-grade
year at Northwood Junior High School. As one would expect from typical
junior high students, the two primarily saw each other at school and church, and their
relationship was marked by multiple breakups during the school year. Sometime
during the summer vacation after the end of the seventh-grade year, K.G. "broke up"
with J.M. for the final time because she was interested in another boy.

Frustrated by the breakup and upset that K.G. would not go out with him again,
J.M. drafted two violent, misogynic, and obscenity-laden rants expressing a desire to
molest, rape, and murder K.G. According to J.M., he intended to write a rap song
with lyrics similar in theme to the more vulgar and violent rap songs performed by
controversial "rappers" such as Eminem, Juvenile, and Kid Rock, but found that his
"song" fit no particular beat or rhythm. J.M. ultimately penned the documents as
letters, signing them at their conclusion. J.M. prepared both letters at his home,
where they remained until J.M.'s best friend, D.M., discovered one of them approximately a month before the youths were to begin their eighth-grade year at
Northwood.

D.M. found the letter in J.M.'s bedroom while he was searching for something
on top of a dresser. Before D.M. had a chance to read the letter, J.M. snatched it from
his hand. D.M. asked to read the letter, and J.M. handed it back to him and gave
D.M. permission to read the letter. (Trial Tr. at 176-77; 300-02.) D.M. asked for a
copy of the letter, but J.M. refused to give him one.

K.G. also learned about the existence and contents of the letter, but it was not
made clear during the trial when or how she learned about it. K.G. testified that she
first learned about a letter during a telephone conversation with J.M. She claimed
that J.M. told her that another boy had written a letter that stated she would be killed.
J.M. claimed instead that K.G. learned about the letter from D.M. Either way, the
testimony clearly established that J.M. voluntarily discussed the letter with K.G.
during two or three telephone conversations and that J.M. admitted to K.G. in their
final telephone conversation that he, not another boy, had written the letter.

Concerned about the letter, K.G. enlisted D.M.'s help in obtaining it from J.M.
About a week before the start of school, D.M. spent the night at J.M.'s house and took
the letter from J.M.'s room on the following morning. D.M. did so without J.M.'s
knowledge or permission. D.M. delivered the letter to K.G. on the second day back
from summer vacation, and K.G. read it in gym class in the presence of some other
students. One of those students went immediately to the school resource officer,
Officer James Kesterson, and reported that threats had been made against K.G.
Officer Kesterson accompanied the student back to the gym where he found K.G.
frightened and crying. K.G. told Officer Kesterson that J.M. had threatened her and
explained how she obtained the letter. Officer Kesterson conducted an investigation
and informed school administrators about the situation.

Bob Allison, the principal, conducted his own investigation and learned that
D.M. had taken the letter from J.M. and delivered it to K.G. at school. After the
investigation, Principal Allison recommended that J.M. be expelled from Northwood
for the remainder of his eighth-grade year. Allison based his recommendation on
Rule 36 of the district's Handbook for Student Conduct and Discipline, which
prohibits students from making terrorizing threats against others. The rule requires
that a violator be recommended for expulsion.

J.M. and his parents appealed the principal's recommendation to the Director
of Student Services and Athletics, who serves as a hearing officer under the district's
rules. The director recommended that J.M. be suspended from Northwood for one
semester but that J.M. be allowed to attend the district's alternative school during the
period of his suspension. J.M. appealed the director's decision to the school board.
In the interim, he attended the alternative school from August 29 through September
12, the date of the school board's hearing on J.M.'s appeal. The school board voted
at the conclusion of the hearing to expel J.M. from both Northwood and the
alternative school for the remainder of his eighth-grade year, essentially adopting
Principal Allison's initial recommendation.

Upset with the school board's decision, J.M.'s mother filed this lawsuit on her
son's behalf. J.M. sought reinstatement at Northwood on the ground that the school
board violated his free speech rights when it disciplined him for the letter. On
September 27, 2000, the district court issued a temporary restraining order, directing
the board to reinstate J.M. on the condition that he have no contact with K.G. In
November 2000, the district court held a bench trial on J.M.'s First Amendment claim
and found in favor of J.M. The court concluded that the letter was not a true threat
of violence, which may be punished without offending an individual's First
Amendment rights, because J.M. had prepared the letter at home and did not intend
to deliver it to K.G. The district court's judgment required the district to permanently
reinstate J.M., to restore all rights and privileges he lost, and to remove from J.M.'s
school records any reference to the expulsion.

* * *

As a preliminary matter, J.M. argues that we no longer have jurisdiction
because his First Amendment claim was rendered moot when he completed his
eighth-grade year at Northwood. According to J.M., even if we reverse the district
court's judgment, our decision will have no practical effect because he was expelled
only for the remainder of his eighth-grade year, which he has completed. We agree
that an appeal must be dismissed as moot when our decision will have no "effectual
relief whatever to a prevailing party." Church of Scientology of Cal. v. United States,
506 U.S. 9, 12 (1992) (internal quotations omitted). We disagree, however, that our
decision can have no effect for either party and conclude that a live case or
controversy remains between the parties.

In addition to reinstating J.M., the district court required the school board to
expunge any mention of J.M.'s Rule 36 violation from his school records and ordered it to restore all of J.M.'s rights and privileges. If we reverse the district court, the
district will no longer be required to refrain from documenting the incident in J.M.'s
school records. Cf. Kerr v. Farrey, 95 F.3d 472, 476 (7th Cir. 1996) (concluding that
inmate's request to have disciplinary action expunged from his record was not
rendered moot when inmate was paroled). Nor will the district be required to refrain
from considering J.M.'s past rule violation in determining his present privileges as a
student in the district; for instance, whether J.M. can be excluded from a class that
K.G. is taking. Moreover, the district has a legitimate interest in a judicial
determination of whether its application of the rule prohibiting terrorizing threats was
constitutional because the district court's judgment implicates the district's ability to
protect its students and staff. See Papish v. Bd. of Curators of the Univ. of Mo., 464
F.2d 136, 142 (8th Cir. 1972) (reasoning that an expelled student's constitutional
challenge was not moot, based on the student's subsequent academic ineligibility,
where the lawsuit weakened the University's ability to maintain regulatory measures
benefitting its students), reversed and remanded on other grounds, 410 U.S. 667
(1973).

* * *

As a general matter, the First Amendment prohibits governmental actors from
directing what persons may see, read, speak, or hear. Ashcroft v. The Free Speech
Coalition, 122 S. Ct. 1389, 1399 (2002). Free speech protections do not extend,
however, to certain categories or modes of expression, such as obscenity, defamation,
and fighting words. R.A.V. v. City of St. Paul, 505 U.S. 377, 382-83 (1992). The
government is permitted to regulate speech that falls within these categories because
the speech is "'of such slight social value as a step to truth that any benefit that may
be derived from them is clearly outweighed by the social interest in order and
morality.'" Id. at 382 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 572
(1942)). Of course the rule remains that the government's proscription of speech
within these categories may not, in general, be based on the content of the speech or
the speaker's viewpoint. Id. at 383-86.

In Watts v. United States, 394 U.S. 705 (1969), the Supreme Court recognized
that threats of violence also fall within the realm of speech that the government can
proscribe without offending the First Amendment. Although there may be some
political or social value associated with threatening words in some circumstances, the
government has an overriding interest in "protecting individuals from the fear of
violence, from the disruption that fear engenders, and from the possibility that the
threatened violence will occur." R.A.V., 505 U.S. at 388. Our task, therefore, is to
determine "[w]hat is a threat . . . from what is constitutionally protected speech."
Watts, 394 U.S. at 707. The Court in Watts, however, set forth no particular definition or description of a true threat that distinguishes an unprotected threat from
protected speech. Thus, the lower courts have been left to ascertain for themselves
when a statement triggers the government's interest in preventing the disruption and
fear of violence associated with a threat.

The federal courts of appeals that have announced a test to parse true threats
from protected speech essentially fall into two camps. See United States v. Fulmer,
108 F.3d 1486, 1490-91 (1st Cir. 1997) (describing the differing circuit approaches
to ascertaining a true threat). All the courts to have reached the issue have
consistently adopted an objective test that focuses on whether a reasonable person
would interpret the purported threat as a serious expression of an intent to cause a
present or future harm. See id. The views among the courts diverge, however, in
determining from whose viewpoint the statement should be interpreted. Some ask
whether a reasonable person standing in the shoes of the speaker would foresee that
the recipient would perceive the statement as a threat, whereas others ask how a
reasonable person standing in the recipient's shoes would view the alleged threat.
Compare Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coalition of
Life Activists, 290 F.3d 1058, 1075 (9th Cir. 2002) (en banc), with United States v.
Malik, 16 F.3d 45, 49 (2d Cir.), cert. denied, 513 U.S. 968 (1994).

Our court is in the camp that views the nature of the alleged threat from the
viewpoint of a reasonable recipient. In United States v. Dinwiddie, we emphasized
the fact intensive nature of the true threat inquiry and held that a court must view the
relevant facts to determine "whether the recipient of the alleged threat could
reasonably conclude that it expresses 'a determination or intent to injure presently or
in the future.'" 76 F.3d 913, 925 (8th Cir.) (quoting Martin v. United States, 691 F.2d
1235, 1240 (8th Cir. 1982)), cert. denied, 519 U.S. 1043 (1996); see also United
States v. Hart, 212 F.3d 1067, 1071 (8th Cir. 2000) (quoting Dinwiddie's statement
of what amounts to a true threat), cert. denied, 531 U.S. 1114 (2001). We also set
forth in Dinwiddie a nonexhaustive list of factors relevant to how a reasonable recipient would view the purported threat. Those factors include: 1) the reaction of
those who heard the alleged threat; 2) whether the threat was conditional; 3) whether
the person who made the alleged threat communicated it directly to the object of the
threat; 4) whether the speaker had a history of making threats against the person
purportedly threatened; and 5) whether the recipient had a reason to believe that the
speaker had a propensity to engage in violence. Dinwiddie, 76 F.3d at 925.

In affirming the district court's conclusion that the letter constituted protected
speech, our vacated panel opinion discussed Dinwiddie's factors but ultimately relied
on the Ninth Circuit's definition of a true threat in Lovell v. Poway Unified Sch. Dist.,
90 F.3d 367 (9th Cir. 1996). See Doe, 263 F.3d at 836-37. In Lovell, the Ninth
Circuit explained that its test is "'whether a reasonable person would foresee that the
statement would be interpreted by those to whom the maker communicates the
statement as a serious expression of intent to harm or assault.'" Lovell, 90 F.3d at 372
(quoting United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990)).
Our panel reasoned that the Ninth Circuit, in focusing on whether a reasonable
speaker would know of the threatening nature of his or her statement, provided the
most concise standard to separate a true threat from protected speech. Doe, 263 F.3d
at 837.

The panel's implicit rejection of the Dinwiddie true threat inquiry has some
support. The First Circuit rejected the reasonable recipient approach, reasoning that
it creates the peril that a speaker's constitutional rights could turn on a recipient's
unique sensitivity or characteristic that is, or may be, unknown to the speaker.
Fulmer, 108 F.3d at 1491. The notion underlying the First Circuit's decision is that
the reasonable recipient test is less conducive to the robust and wide-open public
debate envisioned by the First Amendment because a speaker may find it necessary
to tone down his or her speech in fear of triggering a recipient's unknown sensitivity.

* * *

Click the case caption above for the full text of the Court's opinion.

We reverse the judgment of the district court and remand the case to the district
court with instructions to dissolve the injunctive relief afforded J.M. and to dismiss
J.M.'s First Amendment claim against the school district.

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