Threatening statements may not merit First Amendment protections. 

When thinking about how to respond to troublesome student speech, educators have looked, for the last 50 years, to Tinker v. Des Moines (U.S. S.Ct. 1969), the case that gave us the famous language: Students do not “shed their constitutional rights . . . at the schoolhouse gate.” According to the Court, student speech can be restricted only if educators can “reasonably forecast that the speech would cause material and substantial disruption” to the school. 

But what about free speech outside the schoolhouse gate? Generally, courts have extended the Tinker standard to mean that if any speech (wherever it occurs) presents a material and substantial disruption to the school, it can be suppressed (in advance) or disciplined (after the fact). That is, if the school can reasonably forecast that the speech will cause a material and substantial disruption to the school, it can control it (or at least discipline students for it) even if it takes place outside of the school and school-sponsored activities. 

Further, in a line of cases dealing with speech that presents a threat to the safety of the school community, the Court has ventured beyond the Tinker analysis. 

Freedom of speech is not absolute 

These cases start from the legal notion that not all speech is protected under the First Amendment, regardless of whether it involves students, schools, or the general public. As Justice Oliver Wendell Holmes Jr. stated, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre” (Schenck v. U.S., U.S. S.Ct. 1919). Speech that does not warrant First Amendment protections includes incitement to crimes and violence, defamation, obscenity, true threats, and fighting words.  

The test for distinguishing a true threat from constitutionally protected speech is whether:  

• A reasonable person hearing the speech would interpret it as a serious expression of an intent to do harm or cause injury. 
• The threat is intentionally or knowingly communicated. 

The speaker’s actual intent to carry out the threat is not required. What is important is whether others reasonably perceive a threat. The majority of cases applying the true-threat exception to the First Amendment involve criminal prosecutions, but courts have also been called on to determine whether student speech has constituted true threats. 

Speech found not to be a true threat 

Porter v. Ascension Parish School Board (5th Cir. 2004)  

While at his home, Porter drew a sketch of the school under attack by missiles, trucks, and several armed people and put the sketch away in a closet. Two years later, his brother took the sketch to school, and the school removed Porter from the high school and placed him in an alternative school. The Fifth Circuit Court of Appeals decided that since Porter had not intended to share the sketch, it could not be considered a true threat so as to withdraw it from First Amendment protection.  

Latour v. Riverside Beaver Sch. District (W.D. Pa. 2005) 

Latour wrote and recorded a number of rap songs at his home, one of which was titled “Murder, He Wrote” and another “Massacre.” When the school sought Latour’s expulsion, his parents asked the court to enjoin that expulsion. The district court ruled in favor of Latour, finding that because the rap genre often has violent imagery, these songs did not constitute true threats. It also noted that the school did not act as if it actually believed the songs were a threat to the school community.  

Speech found to be a true threat 

Doe v. Pulaski County Special Sch. Dist. (8th Cir. 2002) 

A student was given a letter written by her ex-boyfriend, Doe, that contained specific and graphic descriptions of Doe’s intent to do violence to his ex-girlfriend. Doe had given the letter to another student, who a few months later gave it to the ex-girlfriend, and Doe was expelled. The Eighth Circuit concluded this was unprotected speech under a true-threat analysis because it contained language that was reasonably perceived as an intent to do serious harm, even though Doe had not directly expressed this intent to the ex-girlfriend. 

Boim v. Fulton County Sch. Dist. (11th Cir. 2007) 

During her art class, Boim handed a notebook to another student, and the teacher then took it. In the notebook, she found an essay titled “Dream” in which Boim described coming to school with a gun and murdering several people, some specifically named and their murders graphically described. The teacher shared the essay with a school administrator who, along with the school resource officer, was concerned that Boim was making real-life plans in the essay but disguising them as a dream. Boim was expelled, and the 11th Circuit Court of Appeals found that the school was justified in believing that Boim’s speech was likely to cause a disruption to the school under the Tinker standard. The court went on to find that the speech amounted to a true threat and was thus not protected by the First Amendment.  

Riehm v. Engelking (8th Cir. 2008) 

Riehm, a high school student, submitted three essays describing acts of violence, including murder-suicide. The teacher spoke to Riehm’s mother about the first two and told the police about the third essay, which was lengthy and included graphic descriptions of vengeful violence against a teacher. The student was taken into custody and put on a psychiatric hold. The court found that the teacher, the object of the threat, was reasonable in interpreting the essay as a serious threat to do her harm. Likewise, the Eighth Circuit Court of Appeals found that Riehm’s speech was not protected, since it represented a true threat.  

D.J.M. v. Hannibal Publ. School Dist. (8th Cir. 2011) 

While at home, D.J.M. sent instant messages to classmates talking about getting a gun and shooting students at their school. He mentioned specific students he would “have to get rid of” and who would be “the first to die” and stated that he wanted his town “to be known for something.” Alarmed, one of the classmates contacted a trusted adult, and together they contacted a school administrator, who notified the police. The police took D.J.M. into custody, and the district expelled him. Evidence at the trial showed that D.J.M. had a known history of depression and access to weapons. The Eighth Circuit Court of Appeals found that his speech was a true threat not subject to First Amendment protection. D.J.M. had intentionally communicated the threat to his classmates, and considering D.J.M.’s known history of depression and access to weapons, it was reasonable for the classmate and administrator to believe this was a serious expression to cause harm.  

Educators are being asked to do more to prevent violence, but the Constitution sets limits on how far they can go.

McKinney v. Huntsville School Dist. (W.D. Ark 2018) 

K.P., a student at Huntsville High School, posted on social media an uncaptioned picture of himself wearing a trench coat and posing with an assault rifle. The next day, he replaced that post with a picture of himself in the same clothing without the assault rifle and with the caption, “If I wanted to make an impact I would choose a much more high profile crowd th[a]n a bunch of hicks and jocks who are never going to be anything of particular value.” Concerned parents and students contacted the school to find out if it was safe to attend school, and K.P. was expelled. The district court found that K.P.’s First Amendment rights were not violated because the post publicly conveyed a true threat of violence to the school community.  

Constant concern 

We live in a time when, unfortunately, school safety is a constant concern. Educators are being asked to do more to prevent violence, but the Constitution sets limits on how far they can go. This line of cases shows that not all speech is protected. Going beyond Tinker to use this true-threat standard in schools may allow educators to more directly respond when there is a concern for student safety.