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Bomb scare statute upheld

By: dmc-admin//January 21, 2008//

Bomb scare statute upheld

By: dmc-admin//January 21, 2008//

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A fake bomb threat is still a “true threat” to safety, for First Amendment purposes, the Wisconsin Court of Appeals held on Jan. 15.

As a result, Wis. Stat. sec. 947.015, which prohibits “bomb scares,” is not overbroad, and it was error to dismiss a delinquency petition against a high school student who made a false report of a bomb at his school.

According to police reports, on Feb. 23, 2006, a 911 call was placed from a pay phone at Washington High School in Milwaukee. The caller falsely reported that there was a bomb in the school, prompting police to be sent to the school.

Surveillance cameras revealed the caller as a student, Robert T. A delinquency petition was filed against Robert T., charging him with a violation of the statute.

The statute provides, “Whoever intentionally conveys or causes to be conveyed any threat or false information, knowing such to be false, concerning an attempt or alleged attempt being made or to be made to destroy any property by the means of explosives is guilty of a Class I felony.”

Robert T. moved to dismiss the petition, and Milwaukee County Circuit Court Judge Mary E. Triggiano held the statute overbroad and dismissed the petition.

The state appealed, and the court of appeals reversed, in a decision by Judge Patricia S. Curley.

Robert argued that the statute was overbroad, and that the U.S. Supreme Court’s decision in Virginia v. Black, 538 U.S. 343, 359 (2003), limits “true threats,” which are not entitled to constitutional protection, to those which “communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”

Because he only threatened property, rather than individuals, Robert argued, his bomb threat was not a “true threat.”

Overbreadth

The court first rejected the overbreadth argument.

The court noted that “true threat” is a “constitutional term of art” that describes a category of unprotected speech, rather than delineating false threats from those that the speaker can actually carry out.

In both State v. Douglas D., 2001 WI 47, 243 Wis.2d 204, 626 N.W.2d 725, and State v. Perkins, 2001 WI 46, 243 Wis.2d 141, 626 N.W.2d 726, the Wisconsin Supreme Court held that only “true threats” can be charged, without running afoul of the First Amendment, where the crime consists of speech.

The court in Perkins defined “true threat” as follows: “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. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.” Perkins, at par. 29.

The court of appeals concluded that, because the statute is limited to speech that constitutes a “true threat,” so defined, it does not infringe on any constitutionally protected speech, and thus, is not overbroad.

Persons v. Property

The court next held that the statute is constitutional, even though it prohibits threats to property, rather than persons.

In Virginia v. Black, the Supreme Court struck down a Virginia statute which provided that burning a cross is “prima facie evidence of an intent to intimidate a person or group of persons.”

The court held the statute unconstitutional, because it criminalized “speech” which did not direct a threat to any person or group of persons.

However, the Wisconsin Court of Appeals distinguished Black on three bases.

First, it found that the particular issue in Black was the assumption that, by burning a cross, a person can be assumed to have done so with the intent to intimidate a person or group of persons; it was the presumption, rather than the prohibition on cross burning generally, that ran afoul of the First Amendment.

Second, the court noted that no Wisconsin cases limit a “true threat” to one directed at a person or group of persons and threatening bodily harm or death.

Finally, the court noted that, in numerous other jurisdictions, since Black was decided, defendants have been convicted for making bomb scares without any constitutional challenge. The court concluded, “Certainly if the Supreme Court meant to severely limit the definition of ‘true threats’ to apply only to threats of bodily harm or death directed to a person or group of persons, these other prosecutions would have been challenged.”

Accordingly, the court reversed, and remanded with directions to reinstate the delinquency petition.

Case analysis

Although the court reaches the correct result, its analysis is symptomatic of the disconnect between First Amendment methodology and underlying principles.

In Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766 (1942), the U.S. Supreme Court held that there are categories of communication to which the First Amendment does not extend because they “are no essential part of any exposition of ideas, and are 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.”

It should not require a Constitutional Law professor to realize that making a bomb scare fits into one of these categories, nor should 17 paragraphs of analysis be needed to explain why.

On the contrary, even the most uneducated of laymen would astutely inquire, “How is a bomb scare any different from falsely shouting ‘fire’ in a crowded theater?”

Perhaps the problem lies with the origin of the “fire” analogy.

Justice Oliver Wendell Holmes coined the expression in Schenck v. U.S., 249 U.S. 47, 39 S.Ct. 247, 249 (1919), when he absurdly compared shouting fire in a theater to passing out fliers opposing the draft, and labeled both as presenting a “clear and present danger” that can be criminalized without violating the First Amendment.

Wisely, Schenck has since been limited, and people can’t be prosecuted for opposing conscription to the military. Speech must incite imminent lawless action to constitute a “clear and present danger.” Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 1829-1830 (1969).

However, neither shouting fire in a crowded theater, nor making a false bomb scare, can be said to incite lawlessness. So courts must obfuscate to uphold a bomb scare statute, going so far as defining “true threat” to include false threats — all to justify the self-evident conclusion that a bomb scare is not constitutionally protected speech.

On a more practical note, courts and attorneys need to be aware that, in prosecutions under this statute, circuit courts must give the jury an instruction on the First Amendment that is not currently included in the standard instruction.

The court cited, with approval, a State of Washington case interpreting
a similar bomb scare statute, State v. Johnston, 127 P.3d 707 (Wash. 2006). The court held, as in the case at bar, that, in order to pass constitutional muster, the statute must be limited to “true threats.”

Accordingly, although the court held that the statute itself is constitutional, the court reversed the defendant’s conviction, because the trial court did not instruct the jury on the definition of “true threat.”

Since Wisconsin’s statute must be read with the requirement that only “true threats” can be prosecuted, just as in Washington, Wisconsin juries must also be instructed on the difference between a “true threat” and protected speech.

Currently, Wis JI Criminal 1920 merely sets forth the elements of the offense without any such instruction. Ultimately, the Criminal Jury Instruction Committee will need to draft an instruction on the First Amendment to comport with the decision in the case at bar.

Until a standard instruction is approved by the Committee, a verbatim definition of “true threat” from Perkins should be provided to the jury: “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. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.” Perkins, at par. 29.

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