State v. Douglas D.

2001 WI 47, 626 N.W.2d 725, 243 Wis. 2d 204, 2001 Wisc. LEXIS 380

• Court: Wisconsin Supreme Court
• Decided: May 16, 2001
• Docket: 99-1767-FT
• Status: Published

Opinions

JON P. WILCOX, J.

¶ 1. This is a review of a court of appeals decision, In the Interest of Douglas D.: State v. Douglas D., No. 99-1767-FT, unpublished slip op. (Wis. Ct. App. Dec. 14, 1999), which affirmed a judgment by the Circuit Court for Oconto County, Judge Richard D. Delforge. The circuit court found that the content of an eighth-grade creative writing assignment authored by the petitioner, Douglas D. (Douglas), a minor, constituted a threat against Douglas's English teacher. Based on this finding, the court adjudicated Douglas delinquent for violating the disorderly conduct statute, Wis. Stat. § 947.01 (1997-98).¹

¶ 2. Douglas now petitions this court to reverse the court of appeals decision, which affirmed his delinquency adjudication. In doing so, he presents two issues for review: (1) Can the disorderly conduct statute be construed to criminalize purely written speech, even if the speech does not cause a disturbance? (2) If so, is his speech protected by the First Amendment,² thus barring the State from prosecuting him for disorderly conduct?

¶ 3. We conclude that purely written speech, even written speech that fails to cause an actual disturbance, can constitute disorderly conduct as defined by § 947.01; however, because Douglas's speech falls within the protection of the First Amendment, the State nonetheless is barred from prosecuting Douglas for disorderly conduct. Accordingly, we reverse the decision of the court of appeals.

¶ 4. This case arises from events that occurred while Douglas was an eighth-grade student at an Oconto County public school. On October 7, 1998, Douglas's English teacher, who commonly referred to herself in class as "Mrs. C," gave Douglas a creative writing assignment to complete during class. Mrs. C instructed Douglas to begin writing a story, which later would be passed on to a series of three other students, each adding to Douglas's work. But other than entitling the assignment "Top Secret," Mrs. C provided no limit regarding the topic on which Douglas was to write.

¶ 5. Rather than beginning his assignment, Douglas visited with some friends and disrupted the class. Therefore, Mrs. C sent Douglas into the hall to complete his assignment.

¶ 6. At the end of the period, Douglas returned to class and handed his work to Mrs. C. A few minutes later, Mrs. C read what Douglas had written:

There one lived an old ugly woman her name was Mrs. C that stood for crab. She was a mean old woman that would beat children sencless. I guess that's why she became a teacher.

Well one day she kick a student out of her class & he din't like it. That student was named Dick.

The next morning Dick came to class & in his coat he conseled a machedy. When the teacher told him to shut up he whiped it out & cut her head off.

When the sub came 2 days later she needed a paperclipp so she opened the droor. Ahh she screamed as she found Mrs. C.'s head in the droor.

¶ 7. Mrs. C believed this story to be a threat that if she disciplined Douglas again, Douglas intended to harm her. As a result, she became frightened and, after dismissing Douglas's class as scheduled, notified the school assistant principal of the incident.

¶ 8. Upon learning of the incident and observing that Mrs. C was very upset, the assistant principal called Douglas into his office. Douglas apologized for the story, stating that he did not intend it to be interpreted as a threat. The assistant principal then imposed on Douglas an in-school suspension.

¶ 9. After Douglas served his suspension, the school readmitted him to class — albeit with a different English teacher. However, on November 19, 1998, the police filed a delinquency petition against Douglas, alleging that by submitting a "death threat" to Mrs. C, Douglas had engaged in "abusive conduct under circumstances in which the conduct tends to cause a disturbance," thus violating the disorderly conduct statute, § 947.01.

¶ 10. On March 11, 1999, the circuit court held a fact-finding hearing regarding the delinquency petition. After hearing testimony from Douglas, Mrs. C, the assistant principal, and an employee of the Oconto County Department of Human Services, the court explained that pursuant to § 947.01, the petitioner has the burden to prove two elements: (1) the juvenile engaged in abusive "conduct," which can include "either physical acts or language"; and (2) the juvenile's conduct occurred under circumstances that tend to cause a disturbance. Applying this standard to the facts, the court first found that Douglas had communicated a "direct threat" to Mrs. C. This threat, the court concluded, constituted abusive conduct unprotected by the First Amendment. Second, the court found that Douglas's conduct provoked a disturbance: it caused Mrs. C to become upset. Based on these findings, the court ruled that Douglas was guilty of disorderly conduct. Accordingly, it ordered that he be placed on formal supervision for one year.

¶ 11. Douglas raised two arguments on appeal. First, he argued that the delinquency adjudication based on the content of his school creative writing assignment violates his First Amendment right to free speech. Second, he contended that even if such an adjudication does not violate the First Amendment, § 947.01 criminalizes "conduct" and, therefore, cannot be construed to criminalize purely written speech. For these reasons, Douglas requested that the court of appeals reverse his adjudication.

¶ 12. The court of appeals rejected Douglas's arguments and affirmed the circuit court ruling. Douglas D., unpublished slip op. Addressing Douglas's first argument, the court explained that "true threats" are among the categories of speech that receive limited or no constitutional protection. Id. at 4-5. Further, the court discerned "no material difference in connotation between the phrase[s] 'true threat' and 'direct threat.'" Id. at 5 n.5. Thus, deferring to the circuit court's finding that Douglas's story constituted a "direct threat," the court of appeals ruled that the First Amendment does not protect Douglas's speech. Id. at 6. Regarding Douglas's second argument, the court held that the term "conduct," as used in § 947.01, applies to "both acts and (unprotected) words." Id. Hence, the court held that the State properly prosecuted Douglas pursuant to § 947.01 for the content of his story. Id. at 7.

¶ 13. Douglas subsequently filed a petition to this court for review of the court of appeals decision. On February 22, 2000, this court granted review.

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¶ 14. We first review whether the disorderly conduct statute, § 947.01, can be construed to criminalize purely written speech, even if the speech does not cause a disturbance. This presents an issue of statutory interpretation, which this court reviews de novo. See Teague v. Bad River Band of the Lake Superior Tribe of Chippewa Indians, 2000 WI 79, ¶ 17, 236 Wis. 2d 384, 612 N.W.2d 709.

¶ 15. Section 947.01 provides: "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor." To prosecute a defendant for a violation of this statute, the State has the burden to prove two elements. First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct. See State v. Zwicker, 41 Wis. 2d 497, 514, 164 N.W.2d 512 (1969). Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance. Id. Under both elements, "[i]t is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation." State v. Maker, 48 Wis. 2d 612, 616, 180 N.W.2d 707 (1970).

A

¶ 16. Douglas first argues that "conduct," as used in § 947.01, does not include speech unless such speech is intertwined with physical action. In support of his argument, Douglas cites R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), and Zwicker, 41 Wis. 2d 497, for the general rule that the government cannot regulate the content of speech. He further explains that Wisconsin courts have adhered to this rule. On one hand, Wisconsin courts consistently have struck down legislation that criminalizes speech protected by the First Amendment.³ On the other hand, there is no published Wisconsin opinion in which a court has upheld a conviction under § 947.01 for speech alone. In light of this precedent, Douglas argues, the State has recognized that it constitutionally is barred from convicting a person based solely on the content of his or her speech.

¶ 17. We reject this argument. To be sure, "[t]he First Amendment generally prevents government from proscribing speech. . .because of disapproval of the ideas expressed." R.A.V., 505 U.S. at 382. However, "it is well understood that the right of free speech is not absolute at all times and under all circumstances." Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942). Some categories of speech are "likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest." Terminiello v. City of Chicago, 337 U.S. 1, 4 (1949). These categories include: "fighting words," Chaplinsky, 315 U.S. 568; speech that incites others into imminent lawless action, Brandenburg v. Ohio, 395 U.S. 444 (1969); obscenity, Miller v. California, 413 U.S. 15 (1973); libel and defamatory speech, New York Times Co. v. Sullivan, 376 U.S. 254 (1964); and "true threats," Watts v. United States, 394 U.S. 705 (1969). As the United States Supreme Court has explained, such speech "constituted 'no essential part of any exposition of ideas.'" R.A.V., 505 U.S. at 385 (quoting Chaplinsky, 315 U.S. at 572). Despite its verbal character, this speech essentially is a "nonspeech element of communication." R.A.V., 505 U.S. at 386 (quotations omitted). In this sense, it is analogous "to a noisy sound truck: Each is. . .a mode of speech. . .; both can be used to convey an idea; but neither has, in and of itself, a claim upon the First Amendment." Id. (citation and quotation omitted). Accordingly, states can regulate, consistent with the First Amendment, these unprotected categories of speech.⁴

¶ 18. The right to regulate, however, does not give a state unbridled discretion. To survive constitutional scrutiny, a state must narrowly tailor any regulation that limits the content of unprotected speech unaccompanied by conduct.

¶ 19. On one hand, the regulation must not be overbroad. The United States Supreme Court addressed this issue in Gooding v. Wilson, 405 U.S. 518 (1972), in which it reviewed a Georgia statute that provided in pertinent part: "Any person who shall, without provocation, use to or of another, and in his presence. . .opprobrious words or abusive language, tending to cause a breach of peace.. .shall be guilty of a misdemeanor." Id. at 519 (quoting Ga. Code Ann. § 26-6303 (1933)). After examining cases in which the statute had been applied, the Court concluded that the statute had not been limited in application to criminalize only unprotected speech; in some circumstances, the statute had been applied to criminalize protected speech that merely offended its listeners. Id. at 524. The Court then explained:

The constitutional guarantees of freedom of speech forbid the States to punish the use of words or language not within narrowly limited classes of speech. Even as to such a class, however, because the line between speech unconditionally guaranteed and speech which may legitimately be regulated, suppressed, or punished is finely drawn, in every case the power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom. In other words, the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech and not be susceptible of application to protected expression.

Id. at 521-22 (citations and quotations omitted). Applying this standard, the Court struck down the statute as being unconstitutionally overbroad. Id. at 528. In doing so, the Court made clear that state regulation of speech may not be so broad as to criminalize not only unprotected speech, but also speech that enjoys the protection of the First Amendment.

¶ 20. On the other hand, the regulation must not be "underbroad." The United States Supreme Court addressed this concern inR.A.V., 505 U.S. 377. In that case, the Court analyzed a St. Paul, Minnesota ordinance, which banned persons from:

plac[ing] on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender.

Id. at 380 (quoting St. Paul, Minn., Legis. Code § 292.02 (1990)). As construed by the Minnesota Supreme Court, this ordinance applied only to "fighting words," one category of unprotected speech. Id. at 381. However, the ordinance prohibited only one particular type of "fighting words": " 'fighting words' that insult, or provoke violence, 'on the basis of race, color, creed, religion or gender.'" Id. at 391. In analyzing this regulation, the Court explained that although the government may regulate, consistent with the First Amendment, certain categories of speech, it may not regulate such speech "based on hostility — or favoritism — towards the underlying message expressed." Id. at 386. Because the St. Paul ordinance discriminated against fighting words expressing a particular viewpoint, the Court held that the ordinance was unconstitutionally "underbroad." Id. at 391-96; see also id. at 401-02 (White, J., concurring in the judgment) (noting that under the Court's "underbreadth" doctrine, states generally must take an all-or-nothing approach to limiting unprotected speech). Thus, as illustrated by this holding, a state generally may not regulate so narrowly as to criminalize only particular viewpoints within a larger proscribable category of speech.⁵

¶ 21. Turning to the regulation at issue in this case, it is clear that § 947.01, if applied to speech alone, would not suffer from the infirmities that the Supreme Court described in Gooding and R.A.V.. First, § 947.01 is not overbroad. As this court repeatedly has held, "[t]he language of the disorderly conduct statute is not so broad that its sanctions may apply to conduct protected by the constitution."⁶ Zwicker, 41 Wis. 2d at 509; see also State v. Becker, 51 Wis. 2d 659, 664, 188 N.W.2d 449 (1971) (citing Zwicker as holding that "this court rejected the contention that the Wisconsin disorderly conduct statute [i]s so unnecessarily broad as to invade the area of protected freedoms"); Maker, 48 Wis. 2d at 615-16 (quoting Zwicker). Thus, the statute's sanctions cannot be applied directly to speech protected by the First Amendment. Second, § 947.01 is not underbroad. Section 947.01 prohibits all unprotected speech that is likely to cause "substantial intrusions which offend the normal sensibilities of average persons or which constitute significantly abusive or disturbing demeanor in the eyes of reasonable persons."⁷ Zwicker, 41 Wis. 2d at 508. It does not proscribe certain viewpoints within a category of unprotected conduct while leaving related viewpoints within the sanie category of speech outside its scope. For these reasons, we conclude that the First Amendment does not inherently bar the State from applying § 947.01 to unprotected speech, even if the unprotected speech is purely written speech.

¶ 22. Although to date this court has not reviewed a case in which a defendant was convicted under § 947.01 based solely on the content of his or her speech, we have construed "disorderly conduct" to proscribe some categories of constitutionally unprotected speech. In Teske v. State, 256 Wis. 440, 41 N.W.2d 642 (1950), this court examined the scope of the 1947 version of the disorderly conduct statute, Wis. Stat. § 348.35,⁸ to determine whether the statute could be construed to punish a union leader for inciting striking union members to resist a police officer. In arguing that case, the union leader contended that the statute only reached language; it could not be stretched to criminalize acts alone. Id. at 444. We rejected this argument, explaining that "[t]he words of the statute must be read in the disjunctive, that is, they make it an offense to use such language or to engage in disorderly conduct tending to the result described." Id. Thus, we concluded that the statute could be interpreted to apply to disorderly physical acts. Id. However, in doing so, we made clear that the statute also could be applied to speech, unaccompanied by physical acts. Id.

¶ 23. This court suggested a similar interpretation in Lane v. Collins, 29 Wis. 2d 66, 138 N.W.2d 264 (1965). The issue in Lane in part was whether the trial court properly denied the defendant police officer's motion for a directed verdict in a false imprisonment tort case where the officer arrested the plaintiff for violating a disorderly conduct ordinance based on the plaintiffs statement that he thought the officer was a "son-of-a-bitch," but where there was evidence suggesting that the officer had provoked the statement. Id. at 69-71. In coming to our conclusion that the trial court had properly denied the motion, we explained that the disorderly conduct ordinance at issue was:

similar in import to that portion of sec. 947.0111, Stats., entitled "Disorderly Conduct," which makes it a misdemeanor for a person to engage "in. . .abusive, indecent, [or] profane.. .conduct. .." in a public or private place. The underlying reason for disorderly conduct statutes and ordinances proscribing abusive language is that such language tends to provoke retaliatory conduct on the part of the person to whom it is addressed that amounts to breach of the peace. Calling another person a "son-of-a-bitch" under charged circumstances might well constitute abusive language which is likely to have that result.

Id. at 71-72 (emphasis added; footnote omitted). Like the analysis in Teske, this language indicates that under certain circumstances, § 947.01 can be applied to speech alone.

¶ 24. This interpretation comports with the language and purpose of § 947.01 — to root out conduct that unreasonably disturbs the public peace. See Maker, 48 Wis. 2d at 614-15 (explaining considerations underlying disorderly conduct statute). To be certain, § 947.01, like the laws at issue in Teske andLane, is not a blanket proscription of certain words. By contrast, it is a recognition of the fact that in some circumstances words carry with them proscribable nonspeech elements. R.A.V., 505 U.S. at 386. For example, "unreasonably loud" speech — even if the words themselves are protected by the First Amendment — carries with it the nonspeech element of excessive volume. Similarly, "abusive" speech carries with it the non-speech element of an express or implied threat or challenge to fight. These nonspeech elements constitute the proscribed "conduct" under § 947.01. And it is these elements that, consistent with the First Amendment, can be punished under § 947.01.⁹

¶ 25. Pursuant to this understanding of § 947.01, we conclude that the State is not barred from convicting Douglas for the content of his story merely because his story consisted of purely written speech. However, the State still has the burden to prove that Douglas's speech is constitutionally unprotected "abusive" conduct, within the punitive reach of § 947.01.

B

¶ 26. Douglas also contends that his speech, even if it is an otherwise punishable threat, did not occur under circumstances where such speech would cause or provoke a "disturbance" under § 947.01. Citing Zwicker, 41 Wis. 2d at 508, Douglas explains that this court has defined "disorderly conduct" as conduct which has a tendency to "menace, disrupt or destroy public order." Pursuant to this definition, Douglas argues, § 947.01 requires more than conduct that may cause personal discomfort in others. Applying this reasoning to the facts at hand, Douglas thus contends that because there is no evidence that his story caused anything more than personal discomfort in Mrs. C, he cannot be punished for disorderly conduct.

¶ 27. Douglas is correct insofar as he indicates that not all conduct which causes personal discomfort in others necessarily falls within the ambit of disorderly conduct. This court has held as much:

[Section 947.01] does not imply that all conduct which tends to annoy another is disorderly conduct. Only such conduct as unreasonably offends the sense of decency or propriety of the community is included. The statute does not punish a person for conduct which might possibly offend some hypercritical individual. The design of the disorderly conduct statute is to proscribe substantial intrusions which offend the normal sensibilities of average persons or which constitute significantly abusive or disturbing demeanor in the eyes of reasonable persons.

Zwicker, 41 Wis. 2d at 508. Thus, we agree that § 947.01 requires more than mere offensive speech or behavior.

¶ 28. However, we cannot agree with Douglas's contention that threatening a public school teacher while in school is not the type of conduct that tends to cause or provoke a disturbance. School violence is all too prevalent in our schools today. See State v. Angelia D.B., 211 Wis. 2d 140, 157, 564 N.W.2d 682 (1997) (noting the "growing incidence of violence and dangerous weapons in schools"); Isiah B. v. State, 176 Wis. 2d 639, 662, 500 N.W.2d 637 (1993) (Bablitch, J., concurring) (citing numerous articles supporting the proposition that "problems in our public schools have turned deadly"); Bureau of Just. Stats., U.S. Dep't of Just., & Nat'l Ctr. for Educ. Stats., U.S. Dep't of Educ., Indicators of School Crime and Safety, 1999 (1999) (providing a litany of statistics regarding the frequency of school violence). Concomitantly, the threat of violence intrudes our children's places of learning. See Office of Juv. Just. & Delinq. Prevention, U.S. Dep't of Just., Juvenile Offenders and Victims: 1999 National Report 68 (1999) (noting that in Wisconsin in 1997, five percent of high school students carried a weapon to school on at least one occasion); Bureau of Just. Stats., U.S. Dep't of Just., & Nat'l Ctr. for Educ. Stats., U.S. Dep't of Educ., Indicators of School Crime and Safety, 1999 vii (1999) (noting that in 1997 approximately seven to eight percent of students reported being threatened with a weapon). Our children consequently often must learn in an environment of fear,¹⁰ in which education suffers: "Violence in schools makes teaching difficult and inhibits student learning. In addition, unsafe school environments expose students who may already be at risk for school failure to other failure-related factors such as physical and emotional harm." Nat'l Ctr. for Educ. Stats., U.S. Dept, of Educ., The Condition of Education 80 (1999). For these reasons, the public has become increasingly concerned with serious student threats of violence. Cf. id. With this in mind, we cannot imagine how a student threatening a teacher could not be deemed conduct that tends to menace, disrupt, or destroy public order. See Lovell v. Poway Unified Sch. Dist., 90 F.3d 367, 372 (9th Cir. 1996) ("In light of the violence prevalent in schools today, school officials are justified in taking very seriously student threats against faculty or other students.").

¶ 29. It makes no difference under § 947.01 whether, as Douglas asserts, alleged disorderly conduct actually causes a disturbance. State v. Givens, 28 Wis. 2d 109, 116, 135 N.W.2d 780 (1965). Rather, the conduct only need be the type of conduct that tends to disturb others. Id. (quoting 5 Wisconsin Legislative Council, Judiciary Committee Report on the Criminal Code 208 (1953) ("The question is not whether a particular person was disturbed or annoyed but whether the conduct was of a kind which tends to disturb or annoy others.")). Simply because a listener exhibits fortitude in the face of a threat is no reason to allow the threat to go unpunished. Accordingly, we conclude that the fact that Douglas's story did not cause an actual disturbance is irrelevant to the present inquiry. It is enough that Douglas conveyed his story to Mrs. C under circumstances where such conduct tends to cause or provoke a disturbance.

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¶ 30. We next must consider whether Douglas's story is protected by the First Amendment, thus falling outside the bounds of conduct prosecutable under § 947.01. The circuit court ruled that Douglas's story "is not the type of activity that is allowed under. . .the First Amendment." However, the court supported this ruling only with its conclusory finding that "[t]here is no question that this [story] is a direct threat to the teacher."¹¹ Assuming arguendo that the circuit court correctly found that Douglas's story is a "threat" to Mrs. C, this finding did not warrant the court to make the logical jump to conclude that Douglas's story necessarily constitutes a "true threat," unprotected by the First Amendment.

¶ 31. Contrary to the court of appeals holding, Douglas D., unpublished slip op. at 3 n.3, for purposes of First Amendment analysis, a "threat" is very different from a "true threat." "Threat" is a nebulous term that can describe anything from "[a]n expression of an intention to inflict pain, injury, evil, or punishment" to any generalized "menace." The American Heritage Dictionary of the English Language 1868 (3d ed. 1992). Under such a broad definition, "threats" include protected and unprotected speech. Thus, states cannot enact general laws prohibiting all "threats" without infringing on some speech protected by the First Amendment. By contrast, "true threat" is a constitutional term of art used to describe a specific category of unprotected speech. State v. Perkins, 2001 WI 46, ¶ 17, 243 Wis. 2d 141, 626 N.W.2d 762; see also Watts, 394 U.S. at 707-08. This category, although often inclusive of speech or acts that fall within the broader definition of "threat," does not include protected speech. See United States v. Miller, 115 F.3d 361, 363 (6th Cir. 1997); Perkins, 2001 WI 46, at ¶ 17. Therefore, states may, consistent with the First Amendment, prohibit all "true threats."

¶ 32. Wisconsin prohibits true threats that occur under circumstances where such conduct tends to cause or provoke a disturbance by means of the § 947.01 prohibition on "abusive" conduct. "Abusive" conduct is conduct that, at least in part, is "injurious, improper, hurtful, offensive, [or] reproachful." Black's Law Dictionary 11 (6th ed. 1990); see also The American Heritage Dictionary of the English Language 8 (3d ed. 1992) (defining "abusive" in part as "[c]haracterized by abuse"; defining "abuse" in part as "[i]nsulting or coarse language"). True threats clearly fall within the scope of this definition. Consequently, if Douglas's story constitutes a true threat, the State properly could prosecute him for violating the § 947.01 prohibition on "abusive" conduct.

¶ 33. We thus must determine whether Douglas's story constitutes a true threat. The question of whether particular conduct constitutes a true threat is an issue of fact, typically best left for the finder of fact. Perkins, 2001 WI 46, at ¶ 48. However, if the conduct unquestionably is protected by the First Amendment, a court may dismiss the charge as a matter of law. Id.

¶ 34. As this court explained in Perkins, a true threat is a statement that, in light of all the surrounding circumstances,

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.¹² It is not necessary that the speaker have the ability to carry out the threat.

Id. at ¶ 29.¹³ Some factors that courts and juries should consider when applying this test include, but are not limited to:

how the recipient and other listeners reacted to the alleged threat, whether the threat was conditional,¹⁴ whether [the threat] was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim on other occasions, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.

Id. at ¶ 31 (citation omitted).

¶ 35. In the present case, Douglas argues that his story was not a true threat because it did not express an "unequivocal, unconditional and specific expression[] of intention immediately to inflict injury." United States v. Kelner, 534 F.2d 1020, 1027 (2d Cir. 1976). He contends that his story is a fictional, third-person creative writing assignment, which should receive full protection under the First Amendment.

¶ 36. Conversely, the State contends that Douglas's story is a true threat. According to the State's argument, the first two paragraphs of Douglas's story closely parallel the events that had taken place immediately before Douglas began his assignment: a teacher named Mrs. C removed a male student from her class. The next two paragraphs, the State contends, convey the threat: when the teacher disciplined the student the following day, the student used a machete to cut off the teacher's head. Further, the State attributes great weight to the fact that Douglas handed his story directly to Mrs. C — the subject of his threat — rather than, for example, reading it in jest to his friends. In light of these circumstances, the State argues that Douglas's threat to Mrs. C is direct and clear: If she disciplines him again, he intends to injure her. Thus, the State argues that Douglas's story expresses a true threat.

¶ 37. Applying the Perkins test set forth above, while we believe that Douglas's story is crude and repugnant, we nonetheless must reject the State's argument. To be sure, Mrs. C testified that Douglas's story frightened her. Further, Douglas conveyed his message directly to Mrs. C, the alleged victim of the threat. However, there is no evidence that Douglas had threatened Mrs. C in the past or that Mrs. C believed Douglas had a propensity to engage in violence.

¶ 38. Moreover, Douglas wrote his story, pursuant to Mrs. C's request, in the context of a creative writing class. In such a class, teachers and students alike should expect and allow more creative license — be it for better or, as in this case, for worse — than in other circumstances. Had Douglas penned the same story in a math class, for example, where such a tale likely would be grossly outside the scope of his assigned work, we would have a different case before us.

¶ 39. But in the context of a creative writing class, Douglas's story does not amount to a true threat. First, the story does not contain any language directly addressed from Douglas to Mrs. C. Rather, it is written in the third person, with no mention of Douglas. Second, Douglas's story contains hyperbole and attempts at jest. It jokes that the "C" in "Mrs. C" is short for "crab." In addition, it suggests that Mrs. C is so mean that she beats children and speculates that, for this reason, she became a teacher. Third, Mrs. C explained to Douglas that in this particular assignment, he merely was to begin writing a story that other children would complete. Thus, Douglas could have expected another student to end his grisly tale as a dream or otherwise imagined event. Under these specific circumstances, Douglas's story is protected by the First Amendment.¹⁵

¶ 40. We do not doubt that the story was a result of Douglas's anger at having been removed from class. Further, we sympathize with Mrs. C; she was justified in feeling offended. And we firmly believe that the school took appropriate disciplinary action against Douglas.

¶ 41. However, a thirteen-year-old boy's impetuous writings do not necessarily fall from First Amendment protection due to their offensive nature. As the Supreme Court explained:

To many, the immediate consequence of this [First Amendment] freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. . . .We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated.

Cohen v. California, 403 U.S. 15, 24-25 (1971). With this in mind, we conclude that Douglas's story, although we find it to be offensive and distasteful, unquestionably is protected by the First Amendment. Our feelings of offense and distaste do not allow us to set aside the Constitution.¹⁶ We therefore hold as a matter of law that Douglas's story cannot be prosecuted under § 947.01.

¶ 42. By no means should schools interpret this holding as undermining their authority to utilize their internal disciplinary procedures to punish speech such as Douglas's story. Although the First Amendment prohibits law enforcement officials from prosecuting protected speech, it does not necessarily follow that schools may not discipline students for such speech.

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¶ 43. To be sure, students do not shed their First Amendment rights at the schoolhouse gate. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969). Thus, like law enforcement officials, educators may not punish students merely for expressing unpopular viewpoints. See id. at 509.

¶ 44. However, the First Amendment "must be 'applied in light of the special characteristics of the school environment.'" Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266 (1988) (quoting Tinker, 393 U.S. at 506). Unlike other instruments of the State, schools are entrusted with a unique role in our society — to mold our children into responsible and wise adult citizens. See Brown v. Board of Educ., 347 U.S. 483, 493 (1954) (describing schools as "the principal instrument in awakening the child to cultural values"). This "educational mission" is not limited to academics. See Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 683 (1986). Rather, it also entails many other responsibilities — adviser, friend, counselor, and, all too often, parent-substitute. See Goss v. Lopez, 419 U.S. 565, 594 (1975) (Powell, J., dissenting). Pursuant to these responsibilities, educators must inculcate in our children "the habits and manners of civility." Bethel Sch. Dist., 478 U.S. at 681 (citation omitted).

¶ 45. While the "fundamental values of 'habits and manners of civility' essential to a democratic society must, of course, include tolerance of divergent.. .views, even when the views expressed may be unpopular," they also include society's countervailing interest in teaching our children the boundaries of socially acceptable methods of discourse. Id. For this reason, in the school context, schools may limit or discipline "conduct. . .which for any reason — whether it stems from time, place, or type of behavior — materially disrupts classwork or involves substantial disorder or invasion of the rights of others."¹⁷ Tinker, 393 U.S. at 513. Hence, under some circumstances, schools may discipline conduct even where law enforcement officials may not. Cf. Angelia D.B., 211 Wis. 2d at 155 (holding that "inherent differences" between police officers and educators warrant different legal standards for searches and seizures).

¶ 46. Under the circumstances in the present case, we hold that the school had more than enough reason to discipline Douglas for the content of his story. Although the story is not a true threat, it is an offensive, crass insult to Mrs. C. Schools need not tolerate this type of assault to the sensibilities of their educators or students. The First Amendment does not compel "teachers, parents, and elected school officials to surrender control of the American public school system to public school students." Tinker, 393 U.S. at 526 (Black, J., dissenting).

>V

¶ 47. In sum, we reemphasize that we share the public's concern regarding threats of school violence. Society need not tolerate true threats. Such speech, even if purely written, can and should be prosecuted under the disorderly conduct statute, § 947.01. However, under the particular facts of this case, the speech at issue fails to rise to the level of a true threat. Douglas's story, though repugnant and insulting, falls within the protection of the First Amendment. As such, it may not be punished as disorderly conduct.

¶ 48. However, we also recognize that "it is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse." Bethel Sch. Dist., 478 U.S. at 683. Thus, although we hold that Douglas's story is not a true threat and, therefore, cannot be punished under § 947.01, we nonetheless believe that the school properly disciplined Douglas.

¶ 49. This case reinforces our belief that while some student conduct may warrant punishment by both law enforcement officials and school authorities, school discipline generally should remain the prerogative of our schools, not our juvenile justice system. Accordingly, we reverse the decision of the court of appeals.

By the Court. — The decision of the court of appeals is reversed.

1 All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.

2 Douglas actually challenges the court of appeals decision on this issue under both the First Amendment of the United States Constitution and Article I, Section 3 of the Wisconsin Constitution. The First Amendment of the United States Constitution, applicable to the states under the Due Process Clause of the Fourteenth Amendment, provides in pertinent part that "Congress shall make no law. . .abridging the freedom of speech." 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 489 n.1 (1996). Article I, Section 3 of the Wisconsin Constitution provides in pertinent part that "[e]very person may freely speak, write and publish his [or her] sentiments on all subjects, being responsible for the abuse of that right, and no laws shall be passed to restrain or abridge the liberty of speech or of the press." Despite the differences in language between these provisions, we have found no differences in the freedoms that they guarantee. County of Kenosha v.C & S Mgmt., Inc., 223 Wis. 2d 373, 388, 588 N.W.2d 236 (1999). For this reason, and due to the lack of Wisconsin caselaw applying Article I, Section 3 to facts similar to those at issue, we rely exclusively upon First Amendment precedent in this opinion. However, all such precedent and the conclusions that we draw therefrom apply with equal force to Article I, Section 3.

3 See, e.g., City of Milwaukee v. Wroten, 160 Wis. 2d 207, 466 N.W.2d 861 (1991) (striking down city ordinance, which prohibited hindering or preventing police from discharging duties); State v. Dronso, 90 Wis. 2d 110, 279 N.W.2d 710 (Ct. App. 1979) (striking down statute that prohibited intentionally annoying phone calls).

4 Cf. Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447 (1978) (holding that commercial speech is afforded only a "limited measure of protection").

5 In other words, state regulation must be "content-neutral." See Hill v. Colorado, 530 U.S. 703, 719-30 (2000).

6 In her concurring opinion, Chief Justice Abrahamson disputes whether this court can authoritatively construe a potentially facially overbroad statute so as to prevent the statute from being rendered unconstitutional. Concurrence at ¶¶ 53-57. She is correct that" '[a] statute is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate.'" State v. Janssen, 219 Wis. 2d 362, 374, 580 N.W.2d 260 (1998) (quoting Bachowski v. Salamone, 139 Wis. 2d 397, 411, 407 N.W.2d 533 (1987)). However, she fails to take notice of the adjunct rule that "[sjtatutes that are challenged as overbroad may be preserved if a limiting and validating construction of the statute's language is readily available." Id. at 378; see also, e.g., Lewis v. City of New Orleans, 415 U.S. 130, 133-34 (1974) (holding that facially overbroad statutes or ordinances can withstand constitutional attack if they are authoritatively construed by the state supreme court to punish only speech unprotected by the First Amendment); Gooding v. Wilson, 405 U.S. 518, 522 (1972) ("the statute must be carefully drawn or be authoritatively construed to punish only unprotected speech") (emphasis added); Cox v. Louisiana, 379 U.S. 536, 551 (1965) (examining statute "as authoritatively interpreted" by the state supreme court); Edwards v. South Carolina, 372 U.S. 229, 238 (1963) (noting that courts must analyze statutes "as authoritatively construed"); Terminiello v. City of Chicago, 337 U.S. 1, 4-6 (1949) (noting that the Court considers statutes and ordinances as construed).

Moreover, we cannot discern why she spends the vast majority of her concurrence criticizing the majority's conclusion that § 947.01 can punish only constitutionally unprotected speech, yet she writes in her concurrence to State v. A.S. that she is bound by this conclusion. 2001 WI 48, ¶ 42, 243 Wis. 2d 173, 626 N.W.2d 712 (Abrahamson, C.J., concurring). This court heard oral arguments regarding this case and A.S. on the same day, and we have released these cases together as companion cases.

7 While considering the legislation that later was enacted as § 947.01, the Legislative Council's Judiciary Committee explained the scope of the disorderly conduct statute as follows:

"The words 'violent, abusive, indecent, profane, boisterous, unreasonably loud. . .conduct' give certainty to the crime while at the same time being broad in scope. On the other hand, they are not broad enough to take care of every situation generally considered to be disorderly." 5 Wisconsin Legislative Council, Judiciary Committee Report on the Criminal Code 208 (1953).

8 Section 348.35 (1947) provided in pertinent part: "Any person who shall engage in any violent, abusive, loud, boisterous, vulgar, lewd, wanton, obscene or otherwise disorderly conduct tending to create or provoke a breach of the peace or to disturb or annoy others, whether in a public or a private pláce [is guilty of disorderly conduct.]"

9 Because, as explained above, conduct must be examined in light of all the surrounding circumstances, conduct that is protected by the First Amendment under one set of circumstances may be prosecutable under different circumstances. For example, political speech generally is protected by the First Amendment and, thus, falls outside the scope of § 947.01. However, shouting political speech over a megaphone in a residential area at 2:00 a.m. likely would be deemed prosecutable disorderly conduct.

10 "For many school-age children. . .fear is a realistic response to conditions in and around their schools." Shay Bilchik, Office of Juv. Just. & Delinq. Prevention, U.S. Dep't of Just., From the Administrator, Juv. Just. Bull. 1 (Apr. 1998). .

11 Contrary to the dissent's suggestions, this is the only finding of fact that the circuit court made to support its conclusion' that Douglas's speech is not protected by the First Amendment. To be sure, the dissent suggests that there are numerous other "facts" in the record. However, the dissent does not state what these facts might be. Instead, while ostensibly recognizing the statutory mandate that juvenile records remain confidential, Wis. Stat. § 938.78 ("Confidentiality of records"), the dissent inserts blank lines that it presumably hopes will indicate relevant facts that somehow dictate the outcome in this case. See dissent at ¶¶ 86, 91 — 93. In doing so, the dissent not only acknowledges that it relies on impermissible, inadmissible, and possibly non-existent evidence, but it invites others to speculate what that evidence may be.

Moreover, even if such facts exist and are relevant and admissible, there is no evidence that any such facts were presented to the circuit court during the fact-finding hearing on this matter. And even if we assume arguendo that the circuit court was aware of these alleged facts at the time of the fact-finding hearing, we nonetheless must take notice that there is no evidence that the circuit court relied on these facts as a basis for its ruling.

It should go without saying that courts are bound to decide cases based on the facts before them. We find it unfortunate that the dissent does not deem itself bound by this imperative.

12 We recognize that there may be instances where true threats are conveyed by means other than pure speech. For this reason, the terms "speaker" and "listener" should be broadly construed to encompass all conveyors and recipients of true threats.

We further note that the "reasonable speaker" and "reasonable listener" are not to be misconstrued as omniscient persons, aware of every fact potentially existing at the time of the speech. The "reasonable speaker" and "reasonable listener" are limited in knowledge to the facts readily available to the actual speaker and/or the actual listener at the time of the speech at issue.

13 Contrary to the contentions in the concurrences by Chief Justice Abrahamson and Justice Bablitch, this test does not require specific intent. As explained in State v. Perkins, 2001 WI 46, ¶ 29, 243 Wis. 2d 141, 626 N.W.2d 762, the true-threat test applies "an objective reasonable person standard," based on reasonable foreseeability, not intent. This standard does not legally or logically require a finding of specific — i.e., subjective — intent. Further, we note that the vast majority of federal appellate courts and state supreme courts to have considered the issue rejected the argument that true threats require specific intent. See, e.g., United States v. Francis, 164 F.3d 120, 123 (2d Cir. 1999); United States v. Whiffen, 121 F.3d 18, 21 (1st Cir. 1997); United States v. Myers, 104 F.3d 76, 81 (5th Cir. 1997); United States v. Himelwright, 42 F.3d 777, 782-83 (3d Cir. 1994); United States v. Darby, 37 F.3d 1059, 1066 (4th Cir. 1994); United States v. DeAndino, 958 F.2d 146, 149 (6th Cir. 1992); People v. Baer, 973 P.2d 1225, 1233-34 (Colo. 1999) (en banc); In the Interest of R.T., No. 00-CK — 0205, 2001 WL 170927, at *4 (La. Feb. 21, 2001).

14 This is not to suggest that ambiguous or conditional language cannot constitute a true threat. See United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir. 1997) ("The use of ambiguous language does not preclude a statement from being a threat."); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990) ("Most threats are conditional; they are designed to accomplish something; the threatener hopes that they will accomplish it, so that he won't have to carry out the threats. They are threats nonetheless." (citation omitted)). Additionally, "[t]he fact that a threat is subtle does not make it less of a threat." United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990) (citation and quotation omitted); see also United States v. Malik, 16 F.3d 45, 50 (2d Cir. 1994) (holding that the jury must consider the reasonable connotations of speech in determining whether the speech is a "true threat").

15 As noted above, the dissent suggests that numerous other "facts" support its conclusion that Douglas's story was a true threat. Whatever these facts may be, there is no evidence that Mrs. C or any other person was aware of any of these purported facts at the time of Douglas's alleged threat.

However, unswayed by the dearth of evidence supporting its position, the dissent hypothesizes its own "evidence." See, e.g., dissent at ¶ 93 ("Even if Mrs. [C.] had been unaware of Douglas's entire history and prior delinquency determination, she was certainly cognizant of his discipline problems in class and his frequent truancy."); id. at ¶ 109 ("There is a very good chance, however, that Mrs. [C.] — at least after she talked with [the vice principal] — knew something of Douglas's troubles.. .or that she had her own reasons for being afraid of him."). This "evidence" is unsupported by the record. But more disconcertingly, this "evidence" is the product of judicial speculation, which clearly exceeds the proper scope of the present review. '

16 We recognize that public opinion regarding protected freedoms may wax and wane over time. However, courts should not easily be swayed by public opinion, particularly in matters of constitutional rights. As the United States Supreme Court has observed: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts." West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624, 638 (1943).

Unfortunately, the dissent seems willing to sidestep these legal principles. In its seeming urgency to satisfy public opinion and convince the majority of this court and this state that Douglas's conduct must be removed from First Amendment protection, the dissent cites as support everything from FBI symposium publications to magazine articles to myriad newspaper headlines. However, as Justice Crooks' concurring opinion aptly notes, the dissent scarcely cites the stuff of judicial import — the Constitution and those cases and statutes that interpret it.

Ever conscious of the principles undergirding the Constitution, this court must not succumb to public pressure when deciding the law. Headlines may be appropriate support for policy arguments on the floor of the legislature, but they cannot support an abandonment in our courthouses of the constitutional principles that the judiciary is charged to uphold.

17 Further, schools may discipline student speech that is, for example, ungrammatical, poorly written, or inadequately researched. Cf. Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 271 (1988). While few people likely question this authority, it is important to note that even this type of discipline — be it correcting a typographical error, having a student rewrite a particular assignment, or the like — infringes to some extent upon otherwise protected speech. Nevertheless, when examined in light of the special characteristics of the school environment, this speech, like speech that more dramatically interferes with a school's educational mission, may be disciplined without contravening the First Amendment.