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Supreme Court Jurisprudence and School Shooting Threats: A Legal Review

Published onJun 30, 2022
Supreme Court Jurisprudence and School Shooting Threats: A Legal Review
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Abstract

This legal review provides a general synopsis of selected school shooting threat cases processed in U.S. Federal courts and specifically emphasizes the interpretive mechanisms employed by judges during the adjudicatory process. Approximately 29 federal cases involving school shooting threats are reviewed, and six different legal tests and rules commonly used by federal courts are discussed in detail. Among other findings, descriptive statistics reveal that a majority of courts employed the Tinker rule when analyzing threats (72.4%) and that the majority of cases involved the application of a single test (72%). Select cases are then discussed which highlight the application of different tests within the context of the First Amendment. The implications of these tests in relation to school shooting threats are explored and directions for policy and future research are discussed.

Keywords

School Shooting Threats; Tinker; True Threats; Federal Courts; First Amendment.


Although school shootings represent a serious public health problem, they are a statistical rarity (Cornell, 2003; Elsass, 2015; Flannery et al., 2021). Much more prevalent is the daily stream of school shooting threats made by individuals that target schools and specific individuals within schools (Centers for Disease Control and Prevention, 2018; Klinger & Klinger, 2019). Because of the seriousness of school shootings and the damage they cause, shooting threats directed at schools or individuals within schools are taken seriously by school staff and law enforcement. Many of these cases result in suspension, expulsion, and legal action against the individuals who made the threats. Some instances in which “threats” are conveyed, however, are ambiguous. Indeed, some speech precariously balances between free speech and actual threats, subjective versus objective intentions, being serious versus “just joking,” and fact versus contextual misunderstanding (see generally Caudle, 2022; LoMonte, 2019; Russo, 2020). Consequently, litigation involving school shooting threats requires that courts determine the nature of speech and expression, whether or not speech or expression amounts to a shooting threat, and what the appropriate disposition of each case should be. Generally speaking, most school shooting threat cases are processed within state courts, but many are also adjudicated within federal courts. The application of legal reasoning in these cases, however, is quite complicated, sometimes generating more confusion than clarity (Conn, 2004; see also Roederer, 2020).

To date, aside from a small body of articles (see Barnard, 2019; Case, 2015; Conn, 2004; Crane, 2006), little discussion in the academic literature has explored what standards federal courts apply when specifically dealing with school shooting threat cases, and further, how courts determine whether case facts satisfy those standards. Given the prevalence of school shooting threats in America and the burden that courts have in rendering decisions in these cases, there is a need for scholarly exploration of federal courts’ analyses and adjudication of school shooting threat cases. As such, the current review’s overarching purpose is exploratory. To address the dearth of scholarly work on this topic, four main objectives are discussed in detail.

The first objective of the current review is to explore different legal definitions of what constitutes a “threat” and how these relate to school shooting threats. The review suggests that definitions of threats, as contained in statutes, serve as frames of reference from which judicial decision-making emerges (Posner, 1986). Thus, the conceptual framework of a statutorily defined threat is integral in understanding the foundations of judicial determinations as they relate to threatening actions, speech, or expressions directed at schools or school affiliates. A subsidiary objective also concerns a discussion about the limits of definitions. As Posner (1986) observed, “No matter how clear the text seems, it must be interpreted (or decoded) like any other communication” (p. 187). In this context, a discussion outlining the limits of definitions and the importance of judicial discretion in statutory interpretation is essential to the first objective.

Second, the review examines the standards, tests, and rules of interpretation used by federal courts when analyzing school shooting threats. Specifically, rules and tests, such as the Tinker rule, the nexus test, and reasonable foreseeability, among others, are identified as having emerged from a long line of cases that sought to balance the rights of students' speech and expression against a school’s interests in maintaining a non-disruptive educational environment (see Roederer, 2020; Russo, 2020). Although the origins of these tests and rules were not in response to school shooting threats per se, the current review explores how they have been applied in cases where individuals have threatened violence toward a school.

Third, 29 federal cases involving school shooting threats are examined using descriptive statistics. Descriptive elements of the different cases, including the case year, the deciding court or circuit, the state in which the decision was rendered, the way the threat was conveyed (i.e., verbal, written, via social media, etc.), whether the threat occurred on or off a school’s campus, the kind of legal test or rule applied, and whether the applied test was satisfied by the facts of the case are explored. Percentage calculations were used to establish the prevalence of the aforementioned case elements among federal district court cases and federal circuit court cases individually, as well as in the aggregate. Descriptive analyses in the current context help establish which tests and rules are applied most and least often in the sample of cases, and how certain tests and rules produce certain outcomes. Additionally, the degree of reliance on the use of specific rules and tests in the adjudicatory process can provide valuable insight into federal courts and the (in)consistency of their decision-making.

Fourth, select cases among the sample of 29 cases are discussed in two main sections: cases in which speech or expression perceived to be a school shooting threat was protected by the First Amendment; and cases where speech or expression perceived to be a school shooting threat was not protected by the First Amendment. Many of these cases focus on whether schools had justifiable grounds for removing students from the school environment without violating the First Amendment. It should be noted that most threat cases involve other legal arguments between plaintiffs and respondents beyond the scope of free speech issues. While arguably pertinent, this review overlooks these other legal claims in favor of focusing on the free speech issues and threats within individual cases.

Lastly, the review concludes by recapitulating the importance of discretion in judicial decision-making, particularly in the context of school shooting threats and the First Amendment. Additionally, the limitations of the current review, policy implications and potential implementations, and directions for future research on the current topic are discussed.

Defining a Threat

Verbal threats and actions constituting threats are not uniform, often representing a wide degree of conceptual and definitional variability. Variability in threat legislation is partly responsible for different applications of legal reasoning and the subsequent differences in school shooting threat cases’ dispositions, both in state and federal courts. One of the main challenges involves determining what types of language or content constitutes a school shooting threat. A further complication involves having to consider how and when certain language becomes threatening within specific contextual circumstances. At minimum, however, a threat is a statement or action that instigates fear of injury in another and can be accomplished through various mediums, including physical, verbal, written, and electronic/digital.

Several statutory definitions of threats are available, such as those outlined in the Model Penal Code, the Code of Federal Regulations, and the United States Code, among others. For example, section 211.3 of the Model Penal Code defines Terroristic Threats as follows:

A person is guilty of a felony of the third degree if he threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly, or facility of public transportation, or otherwise to cause serious public inconvenience, or in reckless disregard of the risk of causing such terror or inconvenience (Dressler & Garvey, 2016, p. 1060).

As a basic framework, the MPC establishes a good concept of a legally punishable threat: threats pose the possibility of future violence or instigate fear or terror in other people. This terror or fear results in a level of inconvenience for specific people or for places where people congregate. The MPC’s definition also uses specific language which suggests different levels of intent are satisfactory in establishing culpability for making terroristic threats. The phrase “with purpose to terrorize” suggests the threat is made purposefully and knowingly. If a person purposefully constructs a school shooting threat to elicit a particular response, it is reasonable that the individual knows the design of their threat is meant to (and probably will) result in that desired response. Further, the definition implies the intention to cause responses to the threat is achieved by the evacuation of buildings and causing public inconvenience. The definition also suggests that if the threat is made with “reckless disregard,” then culpability in the conveyance of a threat can be established. Recklessness is a lower standard of intent and does not require that the individual engage in the threat purposefully or knowingly (Dressler & Garvey, 2016). In such cases, that a threat was made and that an individual making the threat consciously disregarded the foreseeable consequences that would likely follow the threat would be enough.

Terroristic threats have also been defined in the Code of Federal Regulations:

A person is guilty of a misdemeanor if he or she threatens to commit any crime of violence with purpose to terrorize another or to cause evacuation of a building, place of assembly or facility of public transportation, or otherwise to cause serious public inconvenience or in reckless disregard of the risk of causing such terror or inconvenience (25 C.F.R § 11.402).

Section 11.402 has the same language as the MPC’s definition, except that it specifically refers to both men and women as well as reduces the gravity of the penalty from a felony to a misdemeanor offense. Side by side, both definitions converge on the same concept of what constitutes a threat. In contrast, consider the definition of a threat in the United States Code:

(c) Whoever transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another, shall be fined under this title or imprisoned not more than five years, or both (18 U.S.C. § 875(c)).

Absent from this definition is any language establishing or requiring intent on the part of the individual making the threat. The plain language of the statute suggests culpability is established when threats are conveyed in commerce, irrespective of any distinguishable intent. Stated differently, whether the person intends their language to be a threat, or not, is not present in the statute’s language. Additionally, the definition also provides a way of holding individuals accountable for issuing threats over large distances, such as those occurring between the several states and between the U.S. and other countries, as is indicated by the phrase “interstate or foreign” in the Interstate Communications statute (18 U.S.C. § 875(c)). For example, a person in state A who threatened to perpetrate a school shooting in state B, and conveyed that threat on Facebook, Twitter, Snapchat, Instagram, or through some other digital platform would suffice.

Not long ago, the U.S. Supreme Court interpreted the Interstate Communications statute in Elonis v. United States (2015). Although § 875(c) clearly governs the transmission of threats via interstate commerce, the Court considered whether the statute implicitly required the person making a threat to be aware that their statements or actions were threatening. In an 8 to 1 majority, the Court in Elonis held that the state must show the individual’s subjective intent to convey threats. Dissenting, Justice Thomas argued that a majority of the federal circuits had already resolved the issue by establishing their own general intent requirements (Elonis v. United States, 2015; see also Case, 2015).

The Limits of Definitions

While the aforementioned definitions of threats are relatively clear and self-explanatory, the reality of school shooting threats and the unique contextual factors associated with each incident make the application of rigid definitions extremely difficult. First, applying a rigid definition to a dynamic incident with a series of factors is challenging on its face. By default, definitions are constricted by their language. Because they are constricted, definitions will always fall short of capturing nuances that exist in actual school shooting threats. Additionally, inherently limited definitions necessitate judicial discretion when determining whether certain language comports with statutorily defined threats. In other words, aside from a rule’s explicitly stated content, “there will still be scope for further exercise of discretion by officials, not only as to its applicability, but also as to the accuracy or genuineness of information relevant to the exercise of discretion” (Hawkins, 1992, p. 35).

Second, the collision between threat statutes and the protections afforded by an individual’s constitutional rights requires that courts balance the content and context of statements between (a) the need to ensure public safety and (b) the need to ensure that First Amendment rights to speech are not chilled or suppressed (see generally Conn, 2004). Third, some cases are not litigated in federal courts in relation to any of the definitions of threats mentioned above. Instead, some involve litigating whether a school has rightfully expelled a student under some administrative or independent school district (ISD) policy that defines threats. In these cases, claims are sometimes brought on the basis that the school’s application of policy was constitutionally incongruent with or in violation of the individual’s First Amendment rights. To effectively navigate these sorts of considerations (such as determining whether the shooting threat was protected by the First Amendment or whether a school was within its rights to expel a student for an alleged threat), analytical frameworks have been devised to aid federal courts in their application of legal reasoning in school shooting threat cases.

Standards, Tests, and Rules of Interpretation

Historically, federal courts have developed and repeatedly applied certain standards, tests, and rules for adjudicating school shooting threat cases and determining whether certain speech is protected. Many of these standards of interpretation are predicated on a rich history of legal development and have been applied by courts elsewhere in the law. Collectively, these tests and rules function as analytical guides that structure the judicial application of legal reasoning, allowing for better (a) analysis of particularized fact scenarios, and (b) exercise of judicial discretion. Additionally, tests and rules standardize legal dispositions in threat cases, thereby reinforcing the doctrine of stare decisis and the continuity of decisions. With respect to school shooting threat cases, federal courts tend to employ six common tests, rules, and/or standards: the Tinker rule (first established in Tinker v. Des Moines Independent Community School District, 1969); the nexus test; the reasonable foreseeability test; the true threat analysis; the objective test; and the subjective test. Noteworthy is that some “tests” are subsidiary analytical frameworks within another test. For example, the nexus test and reasonable foreseeability are often built into a Tinker rule analysis. The same is often true for the subjective and objective tests, which are sub-components of a true threat analysis. When viewed collectively, the analytical frameworks or tests guiding judicial decision-making in school shooting threat cases establish several distinct considerations outlined in Table 1.

Table 1. Essential Judicial Considerations in Tests/Rules used in School Shooting Threat Cases

Test/Rule

Main Considerations

Tinker

  1. Whether speech/expression materially/substantially interferes with school functions.

  2. Whether speech/expression infringes on the rights of other citizens.

  3. Whether speech/expression is merely inflammatory/unpopular.

Nexus

  1. Whether speech/expression shares a sufficient connection to the school warranting regulation.

  2. Whether speech/expression is spatially/temporally proximate to the school.

  3. Whether it is reasonably foreseeable that speech/expression would become known to and affect the school

  4. The extent and probability of harm to a school as caused by the speech/expression.

Reasonable Foreseeability

  1. Whether it is reasonably foreseeable that speech/expression will reach the school’s campus.

  2. Whether it is reasonably foreseeable that a recipient would interpret speech/expression as threatening.

True Threats

  1. Whether the speaker intended to make a threat that another would interpret as threatening.

  2. Whether the threat was communicated intentionally.

Subjective

  1. Whether speaker subjectively intended their speech/expression to be a threat.

Objective

  1. Whether a reasonable person would foresee that a recipient would interpret speech/expression as threatening.

  2. Whether the ordinary meaning of speech/expression constitutes a threat.

Additional Considerations

  1. The nature of the case and the facts that comprise it.

  2. Judicial precedent of the court/circuit and similarly situated cases in other federal circuits.

  3. What the applicable statutes/laws are that define threats.

  4. Whether the facts of the case satisfy the elements of statutes/laws as well as tests and rules.

  5. Factors which determine whether schools have the right to regulate speech or expression.

The Tinker Rule

In Tinker v. Des Moines Independent Community School District (1969), the U.S. Supreme Court decided a case involving a group of students who wore black armbands to their school to protest the Vietnam war. Having learned that the students planned to attend school wearing armbands, school officials quickly drafted a policy banning armbands, stipulating that suspension would result if students refused to take them off. On appeal, the question for the Supreme Court was whether wearing armbands to school as a form of protest was protected speech under the First Amendment. In a 7-2 majority, the Court ruled that wearing armbands as a form of protest was protected speech, famously stating that “it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (1969, p. 506). The Court reasoned that to allow suppression of certain speech or expression ran counter to protections afforded to free individuals via the First Amendment, and that “in our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students” (1969, p. 511).

Although the rights retained by adults outside of school settings are not automatically afforded to adolescents in school settings, there are nevertheless limits on what speech or expression schools may reasonably control. Tinker held that for a school to limit speech or expression at school, the speech or expression must be capable of materially or substantially interfering with the operations and/or functioning of the school. Importantly, preventing the speech or expression must be based on more that the mere desire to suppress unpopular or inflammatory opinions (Tinker v. Des Moines Independent Community School District, 1969). Thus, as applied to school shooting threats, the Tinker rule requires that the threats reasonably cause substantial interference in school operations. However, placing limits on speech or expression cannot hinge solely on a desire to suppress unpopular views because, in certain cases, speech or actions perceived as threatening toward schools may only amount to unpopular or insensitive viewpoints (see generally M.K. ex rel. E.K. v. Tolleson Union High School District, 2015). To determine whether the speech or actions constitute a legitimate threat to a school, the Tinker rule also considers whether the speech or expression invades or impinges on the rights of others. The Ninth Circuit Court of Appeals has suggested that although the specific scope of speech needed to infringe on another person’s rights is not always clear, a threat to shoot up a school would indubitably infringe on the security and rights of other people. (Wynar v. Douglas County School District, 2013). While the elements of the Tinker rule are quite clear, its application to otherwise ambiguous contextual factors (like those that occur in school shooting threat cases) remains challenging. Courts have struggled with what constitutes substantial interference and disruption as well as how to handle speech and expression that occurs off campus. Issues like these have resulted in the application of other standards in school shooting threat cases in tandem with Tinker.

The Nexus Test

In some cases, courts employ the nexus test to determine “whether the student’s off-campus speech was tied closely enough to the school to permit its regulation” (McNeil ex rel. C.L.M. v. Sherwood School District, 2016, p. 5; see also McNeil v. Sherwood School District, 918 F.3d 700, Ninth Cir. 2019, which upheld the U.S. District Court of Oregon’s decision that Sherwood School District did not violate the student’s First Amendment rights by regulating the student’s off-campus speech). The court in McNeil ex rel. C.L.M. noted the nexus test is often used before the application of the Tinker rule because the speech must first be shown have a sufficient connection to the school or individuals within the school before it can be “susceptible to regulation” (2016, p. 5). Otherwise, off-campus statements generally may not be subject to school regulation or legal intervention, with some exceptions. What constitutes a sufficient connection is a matter of debate. The Ninth Circuit in Wynar v. Douglas County School District, for example, stated that “one of the difficulties with the student speech cases is an effort to divine and impose a global standard for a myriad of circumstances involving off-campus speech” (2013, p. 7). To date, there has never been any singular set of circumstances or facts which always satisfy the existence of a nexus. As such, courts exercise considerable discretion in determining what a “sufficient connection” entails and whether such a connection is present based on the facts of the case (see generally Barnard, 2019).

Due to the multiplicity of fact patterns, a nexus will necessarily be content and context specific. First, a nexus can be established through the content of the speech or expression. The adolescent C.L.M. in McNeil ex rel. C.L.M. (2016) created a “hit list” with the names of specific students and a teacher who attended the same school. The specificity of the threat and its direct connection to the people who regularly frequented the school were satisfactory in establishing a sufficient nexus (McNeil ex rel. C.L.M. v. Sherwood School District, 2016). In other cases, a nexus may be satisfied when speech or expression occurs in both geographic and temporal proximity to the school, such as in instances where students threaten each other close to the property boundaries of the school or shortly before or after school dismissal times (McNeil ex rel. C.L.M. v. Sherwood School District, 2016; see also Barnard, 2019). In McNeil v. Sherwood School District (2019), the Ninth Circuit established three relevant considerations when determining whether speech is regulable under the nexus test: the likelihood that the speech caused harm to the school; “whether it was reasonably foreseeable that speech would reach and impact the school”; and whether the content of speech as well as its context share a relationship with the school (McNeil v. Sherwood School District, 2019, p. 707).

In today’s digital era, the nexus test is particularly useful for courts because most threats toward schools are made via mediums unbounded by the static geography of school campuses. Digitally conveyed threats force courts to determine the connection of the language to the school, the potential damage statements or actions have concerning school operations, and whether the school can limit speech that poses a threat to its operations or its occupants. By their nature, threats made at a distance require that the nexus be satisfied by the threat’s content only, and these determinations can be equivocal for both schools and courts. Fortunately, the Ninth Circuit has previously upheld a school’s right to prohibit off-campus speech when it constitutes a threat of school violence (McNeil v. Sherwood School District, 2019). In other words, even if a threat of violence was made nowhere near the physical property of a school, this does not prevent the school from limiting that speech, nor is a court prevented from finding a sufficient nexus when spatially distant threats are made. Although the nexus test can be used to identify whether speech conveyed via digital mediums or from places not on campus are sufficiently connected to a school, it still has a limited application. The issue of what constitutes “a threat of school violence” is sometimes not inherently clear, and this lack of clarity may exacerbate judicial efforts to establish nexuses between speech and schools.

The Reasonable Foreseeability Test

Reasonable foreseeability has existed and been applied extensively in most areas of U.S. law for several centuries. In recent decades, the test has been applied to school shooting threats. Similar to the nexus test, the reasonable foreseeability test was most often applied before the Tinker rule as a way of ensuring that the speech or expression in question falls within the parameters of regulable conduct. Fundamentally, the test focuses on “whether it was reasonably foreseeable that the off-campus speech would reach the school and cause a substantial disruption” (McNeil ex rel. C.L.M. v. Sherwood School District, 2016, p. 5). This suggests that individuals who threaten school shootings may be held accountable on the basis that a reasonable person would know that it is more likely than not that their threats will lead to a specific outcome on campus. Therefore, a court (or perhaps a jury) presented with particular facts could find that a person of average intelligence should have reasonably foreseen that a specific outcome resulting from their speech or expressions was more probable than not. This standard is applicable irrespective of outcome-specific knowledge. Thus, that an individual actually know their conduct would result in some end is not required; it is enough that such an outcome was contemplatable and likely to occur.

The application of the reasonable foreseeability test, like the nexus test, is necessarily content and context specific. Returning to McNeil ex rel. C.L.M. (2016), the court determined that due to the hit list and the nature of its contents (in tandem with legislation requiring the reporting of such threats to parents of threatened students), it was reasonably foreseeable that the threat would reach the campus community and substantially interfere with school operations. In that case, the test was applied with a focus on the consequences of the threat becoming known as well as its potential for interference. In other cases, the test has been applied from the vantage point of the school or victim. From this position, a court may apply the test by considering whether it was reasonable for school officials or another person to interpret the speech or expression as posing a real risk, substantial danger, probable interference, or disruption. The defendant Landon in Wynar v. Douglas County School District (2013), for example, named specific people at his school as targets, named his high school as a target, and specifically claimed he had access to weapons and ammunition, all of which created a reasonable foreseeability of danger. The court reasoned that these factors, among others, were enough for school officials to reasonably take the threat seriously (Wynar v. Douglas County School District, 2013). Indeed, if a person were specifically being targeted by shooting threats, and the person making the threats attended the same school and demonstrated that they had the means of carrying out their threats, then it does appear reasonable that a potential victim would think they were in danger. Collectively, the particular facts of cases, the contents of speech or expression, and the contexts in which speech or expression occurs are highly relevant considerations. Further, whether a reasonable trier of fact would interpret the speech or expression as threatening or not, whether a reasonable person would find the speech or expression to be substantially disruptive, and whether it would interfere with the rights of other individuals to be free from harm all factor into judicial assessments of reasonable foreseeability and school shooting threats.

The True Threat Analysis

The true threat doctrine first emerged in Watts v. United States (1969) wherein the Supreme Court decided whether a statement targeting then U.S. president Lyndon B. Johnson constituted a true threat. The Court concluded that the statement by Watts to get L.B.J in the sights of his rifle amounted to nothing more than political hyperbole and thus did not constitute a true threat (Watts v. United States, 1969). Unfortunately, the court did not specify what a true threat actually entailed, nor did it provide any detail for how courts ought to analyze what is and is not a true threat. The vague and ambiguous per curiam opinion in Watts subsequently vexed many scholars and courts. Stanner (2006), for example, argued that three main issues exist with the doctrine. First, the meaning of “true threat” is so vague that any guidance it may afford courts is almost meaningless (see also Crane, 2006; Conn, 2004). Second, merely focusing attention on speech without recognition of other relevant facts will not lead to the prevention of violence. Third, there is a danger in punishing threatening language as it may silence pertinent warning signs that could be used to prevent violence (Stanner, 2006). Of course, this does not mean that threatening speech should not be regulated; it does suggest, however, that care should be exercised when defining the limits between protected and unprotected expression. Although recent efforts have been made to clarify what a true threat is in state supreme courts (e.g., People In Interest of R.D, 2020; see also Ankney, 2020), the federal Circuit Courts of Appeals remain divided on definitional grounds. Some circuits have held that “a true threat requires only proof that the person intended to make the statement that a reasonable person would interpret as a threat,” while others have “interpreted it to mean that the person must have intended to communicate a threat” (Ankney, 2020, p. 42).

It was not until Virginia v. Black (2003) that the Supreme Court defined what a true threat was. There, the Court stated that to truly threaten “means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals” (Virginia v. Black, 2003, p. 359). Despite this attempt at a definition, some have argued that more confusion than understanding about true threats resulted from the decision in Black (Crane, 2006). Specifically, questions remained as to whether a true threat required a showing of subjective intent on the part of the speaker or whether a reasonable person would be put in fear by the statements made regardless of the speaker’s intent (Fuller, 2015). The subjective intent reading of the Interstate Communications true threat statute 875(c) would ultimately be decided by the Supreme Court in Elonis v. United States (2015). As previously mentioned, the Supreme Court held that the prosecution is required to show that the speaker subjectively intended their speech to be threatening (Elonis v. United States, 2015). However, “because Elonis was decided on statutory grounds, ‘true threats’ remain a doctrinal puzzle for lower courts” (Case, 2015, p. 336).

Prior to Elonis, federal courts had devised their own interpretations of true threats and how to properly analyze them, and frankly, they still do despite Supreme Court rulings. To illustrate, the Fifth Circuit has held:

The protected status of the threatening speech is not determined by whether the speaker had the subjective intent to carry out the threat; rather, to lose the protection of the First Amendment and be lawfully punished, the threat must be intentionally or knowingly communicated to either the object of the threat or a third person (Porter v. Ascension Parish School Board, 2004, p. 616).

In O’Neal v. Alamo Community College District (2010), the court for the Western District of Texas stated a true threat “is not determined by the intent of the speaker, but is determined by the viewpoint of a reasonable recipient” (p. 14). Elsewhere, Lovell ex rel. Lovell v. Poway Unified School District (1996) established an objective standard for evaluating whether speech or expression constituted a true threat or not. There, the Ninth Circuit Court of Appeals suggested speech is a true threat and is not protected by the First Amendment if it can be shown that a reasonable person would foresee that their speech or threat would be interpreted as conveying a serious intention to harm or assault someone (Lovell ex rel. Lovell v. Poway Unified School District, 1996). Importantly, this standard requires more than a recipient of a threat merely feeling threatened by speech in order to override First Amendment protection. This was made clear by the Ninth Circuit in United States v. Cassel (2005) where the Court held that to establish a true threat, it must be shown that the speaker subjectively intended the speech to be threatening. Thus, depending on the district or circuit one considers, the true threat analysis necessarily incorporates both a subjective and objective test.

The Subjective Test

The subjective test represents the first prong of the true threat analysis. Essentially, the subjective component considers whether the speaker subjectively intended the speech or expression to be a threat, not whether the recipient of a threat interpreted something as a threat. The need for the subjective standard becomes clear when considering what a threat case might look like if only the objective standard were used. In that hypothetical scenario, an individual could be criminally liable for statements for which they lacked the requisite awareness. Legally, if the speaker’s subjective intentions are of no consequence, then only the outcome of the action is of concern. While this is not an issue in other areas of law (e.g., the application of general intent statutes that do not explicitly require specific levels of intent to establish culpability), cases dealing with true threats are decidedly different in terms of the level of intent required. In the Ninth Circuit’s view, Virginia v. Black established that threat legislation punishing pure speech always requires a subjective intent reading and that the objective test is the prong applied in some cases but not in others (United States v. Bagdasarian, 2011). This was also the issue in Elonis where the Court had to decide whether a subjective intent standard should be inferred from a statute that does not specifically delineate an intent standard (Case, 2015; Elonis v. United States, 2015).

Failing to consider both the subjective and objective tests would run the risk of holding an individual criminally liable for someone else’s subjective feelings rather than their objective perception about certain speech and would also neglect the speaker’s intentions. Courts have taken care to distinguish between the subjective intentions of the speaker and the subjective perceptions of the recipient. Recall that the Supreme Court in Tinker noted that regulation of speech based only on its inflammatory potential is not a legitimate basis for chilling First Amendment rights (Tinker v. Des Moines Independent Community School District, 1969). Moreover, focus on the subjective intentions of speakers is more important than subjective interpretations of listeners, primarily because it is the speaker who must possess the necessary mens rea. According to the Court in Elonis v. United States (2015), a reasonable person might interpret certain speech as a threat is an objective standard of negligence and is perfectly feasible in civil law. However, criminal culpability in certain cases requires more than a mere showing of negligence. True threats exceed negligence standards, therefore requiring that the speaker subjectively intend the nature of their speech to be harmful (Case, 2015; Elonis v. United States, 2015). Lower federal courts have reasoned along similar lines. In Burge ex rel. Burge v. Colton School District 53 (2015), the United States District Court of Oregon held that to establish whether speech constitutes a true threat, a showing that a reasonable or objective person would interpret such speech to be threatening is not enough. The District Court stipulated that the ultimate question turns on whether the speaker subjectively intended the speech or expression to be threatening (Burge ex rel. Burge v. Colton School District 53, 2015).

The Objective Test

The objective test is the second prong of the true threat analysis and it aligns closely with the aforementioned reasonable foreseeability test. The Supreme Court’s opinion in Burge ex rel. Burge v. Colton School District 53 (2015) mimicked the objective standard outlined by the Ninth Circuit in Lovell ex rel. Lovell v. Poway Unified School District (1996). As such, the objective test requires a showing that a reasonable person would foresee that their statements would be taken by the recipient of the speech to be threatening and intending harm (Conn, 2004). Thus, “The anticipated reaction of the intended audience is a key element” (Burge ex rel. Burge v. Colton School District 53, 2015, p. 1069). Another major element of the objective test focuses on the ordinary meaning of language. Specifically, the test considers whether words, statements, or expressions, in their plain and ordinary meaning, would convey an intention to cause harm, therefore constituting a threat (Burge ex rel. Burge v. Colton School District 53, 2015). In tandem with the subjective intent analysis, the objective test considers the totality of circumstances, including the nature of the event, how the listeners reacted to the speech, and the conditional nature of the speech (Burge ex rel. Burge v. Colton School District 53, 2015). If a court chose to entertain this half of the true threat analysis, these elements would need to be satisfied by the facts of the case.

Depending on where and in what court a case is adjudicated, the application of any one of the aforementioned tests could result. In certain cases, a court may use multiple tests to determine whether speech or expression is protected or not while others may use a single test. To better explore the prevalence and application of these tests and rules as well as a few other important case facts, a sample of school shooting threat cases from various federal district and circuit courts are examined.

Methods

Sample

Approximately 29 federal cases involving school shooting threats were gathered and examined for the current review. To identify relevant federal cases, the legal search engine Westlaw Next was used. Only the federal indices specifically relating to U.S. circuit and federal district courts were selected to narrow the results. Specific key search terms were then input into the search bar (i.e., “school shooting threat,” “threat to shoot up school,” etc.) which produced over 400 potential case matches. After reviewing the brief descriptions made available by Westlaw for each case, approximately 29 cases (i.e., 13 federal district cases and 16 federal circuit cases) spanning more than two decades (1996-2019) were identified as specifically adjudicating issues pertaining to shooting threats directed at schools, school personnel, or students. Furthermore, all 29 cases represented “good law” per Westlaw’s flagging system, meaning the cases were not overturned and are therefore legally relevant. Several different elements of each case were identified and examined, including the case year, the deciding court or circuit, in what state the decision was rendered, the type of threat (i.e., verbal, written, via social media, etc.), whether the threat occurred on or off a school’s campus, the kind and number of legal tests or rules applied in the case, and whether the applied test was satisfied by the facts of the case.

Analytical Strategy

The sample of 29 cases was assessed using descriptive statistics. Percentage calculations were used to establish the prevalence of the aforementioned case elements among federal district court cases and federal circuit court cases by treating the total number of cases (N=29) as the denominator and using the frequency of the various case elements as the numerators to generate a quotient which was then multiplied by 100. Cases processed in district and circuit courts were assessed individually, as well as in the aggregate. For the purposes of the current review, the majority of results are reported in the aggregate for the entire sample.

Results

Tables 2 and 3 provide a total of 29 school shooting threat cases adjudicated in different federal courts. Specifically, Table 2 lists 16 school shooting threat cases adjudicated in different U.S. federal Circuit Courts of Appeals.

Table 2. School Shooting Threat Cases Adjudicated in U.S. Federal Circuit Courts of Appeals

Case Name

Year

Court

State

Threat Type

Threat Location

Test Applied

Test Satisfied

Bell v. Itawamba County School District

2015

5th Cir.

MS

Video

Off

Tinker

Yes

Boim v. Fulton County School District

2007

11th Cir.

GA

Written

Off

Tinker

Yes

D.M. ex rel. D.J.M. v. Hannibal Public School District No. 60

2011

8th Cir.

MO

Written

Off

TT & Tinker

Yes

Doe ex rel. Doe v. Pulaski County Special School District

2002

8th Cir.

AR

Written

Off

TT

Yes

Elonis v. United States

2015

S. Ct.

D.C.

Written

Off

TT & Tinker

No

LaVine ex rel. LaVine v. Blaine School District

2001

9th Cir.

WA

Written

Off

Tinker

Yes

Lovell ex rel. Lovell v. Poway Unified School District

1996

9th Cir.

CA

Video

On

TT

Yes

McNeil v. Sherwood School District

2019

9th Cir.

OR

Written

Off

N/RF & Tinker

Yes

Ponce v. Socorro Independent School District

2007

5th Cir.

TX

Written

On

Tinker

Yes

Porter v. Ascension Parish School Board

2004

5th Cir.

LA

Drawing

Off

TT & Tinker

No

S.G. ex rel. A.G. v. Sayreville Board of Education

2003

3rd Cir.

NJ

Video

On

Tinker

Yes

Riehm v. Engelking

2008

8th Cir.

MN

Written

On

TT

Yes

United States v. Morales

2001

5th Cir.

TX

Written

Off

TT

Yes

United States v. Young

1997

10th Cir.

UT

Written

Off

TT

Yes

Wisniewski ex rel. Wisniewski v. Board of Education of Weedsport Central School District

2nd Cir.

NY

Written

Off

Tinker

Yes

Wynar v. Douglas County School District

2013

9th Cir.

NV

Written

Off

Tinker

Yes

N = 16

Note. Off = Off campus; On = On campus; TT = True Threat test; N = Nexus test; RF = Reasonable Foreseeability test; One case above, Elonis, was decided in the Supreme Court, not a Circuit Court of Appeal; Full case citation names can be found in reference section of this review; All cases were collected from Westlaw Next and represent “good law” per Westlaw’s flag system as of the year 2019.

Table 3 lists 13 school shooting threat cases adjudicated in various U.S. federal District Courts. The earliest case occurred in 1996 (see Lovell in Table 2) and was adjudicated by the Ninth Circuit; the most recent case in the sample occurred in 2019 (see Pillault in Table 3) and was decided by the Federal Court of Mississippi for the northern district. As shown in Table 2, approximately 25% of federal circuit court cases (N=4) were processed in the Fifth Circuit, and another 25% were handled by the Ninth Circuit. The remaining eight cases processed in federal circuit courts were split between the Eleventh, Tenth, Eighth, Third, and Second Circuits, as well as one case by the U.S. Supreme Court. With respect to federal district court cases in Table 3, roughly 15.4% of cases (N=2) were adjudicated in the state of Oregon, while another 15.4% were processed in Pennsylvania (although in separate districts). The remainder of district court cases occurred in nine separate states (69.2%).

Table 3. School Shooting Threat Cases Adjudicated in U.S. Federal District Courts

Case Name

Year

Court

State

Threat Type

Threat Location

Test Applied

Test Satisfied

Burge ex rel. Burge v. Colton School District 53

2015

D. Or.

OR

Written

Off

TT & Tinker

No

Demers ex rel. Demers v. Leominster School Department

2003

D. Mass

MA

Drawing

On

TT & Tinker

Yes

M.K. ex rel. E.K. v. Tolleson Union High School District

2015

D. Ariz.

AZ

Verbal

On

Tinker

No

Mardis v. Hannibal Public School District

2010

E.D. Mo.

MO

Written

Off

TT & Tinker

Yes

McKinney ex rel. K.P. v. Huntsville School District

2018

W.D. Ark.

AR

Photograph

Off

Tinker

Yes

McNeil ex rel. C.L.M. v. Sherwood School District 88J

2016

D. Or.

OR

Written

Off

N/RF & Tinker

Yes

Milo v. City of New York

2014

E.D. N.Y.

NY

Verbal

On

TT

Yes

Nixon v. Hardin County Board of Education

2013

W.D. Tenn.

TN

Written

Off

Tinker

No

Niziolek ex rel. A.N. v. Upper Perkiomen School District

2017

E.D. Pa.

PA

Video

Off

Tinker

Yes

O’Neal v. Alamo Community College District

2010

W.D. Texas

TX

Written

Off

TT

Yes

Pillault v. United States

2019

N.D. Miss.

MS

Verbal

Off

TT

Yes

Redden ex rel. J. R. v. Penns Manor Area School District

2019

W.D. Pa.

PA

Verbal

On

Tinker

Yes

Wilk v. St. Vrain Valley School District

2017

D. Colo.

CO

Multiple Types

Off

Tinker

Yes

N = 13

Note. Off = Off campus; On = On campus; TT = True Threat test; N = Nexus test; RF = Reasonable Foreseeability test; Full case citation names can be found in reference section of this review; All cases were collected from Westlaw Next and represent “good law” per Westlaw’s flag system as of the year 2019.

Of the 29 cases listed in Tables 2 and 3, approximately 72.4% employed the Tinker rule when analyzing threats. The overwhelming use of the Tinker rule in school shooting threat cases is unsurprising given that Tinker has been around for some time now and has proven to be quite useful for courts in disentangling complex legal claims regarding student speech. In contrast, roughly 48% of cases used a true threat analysis. Another 7% of cases considered the nexus test, and just under 7% considered the reasonable foreseeability test. Broadly, the majority of cases involved the application of a single test (72%), while a little more than a quarter of cases used a blend of tests to determine the nature of threats (27.5%). Tables 2 and 3 also show that the vast majority of cases found that the speech or expression was not protected by the First Amendment, resulting in approximately 82.7% of cases satisfying the applied rules or tests. On the other hand, in only 17.2% of cases were the rules or tests not supported, resulting in outcomes where the speech or expression was protected under the First Amendment.

As important as the tests are the particularized facts of each case and how they are assessed in relation to the tests. Different facts introduce variability and therefore complicate the analyses of whether speech or expression constitutes threats. Indeed, several of the cases outlined in Tables 2 and 3, for example, involve fact patterns where the “threat” was a suggestive crayon or colored pencil drawing, rap song, piece of poetry, short story, dream, verbal threat, written threat, suggestive photo, internet meme, music video, or a hand or body gesture (see also Conn, 2004). Categorically, most of the threats in the cases in Tables 2 and 3 were written (58.6%), followed by video threats (13.7%), verbal threats (13.7%), drawing threats (6.8%), photographic threats (3.4%), or some combination thereof (3.4%). Further, the majority of threats were made off or away from school campuses (72.4%), while a minority occurred on campuses (27.5%). The sheer volume of speech or expression which may amount to a threat makes discerning between actions that are constitutionally protected or not extremely difficult. Judicial decision-making in school shooting threat cases, then, is expected to be considerably difficult given the uniqueness and various outlets of human expression. In part, this might explain why (a) there are multiple tests used by courts in these cases, and (b) there is a lack of uniformity in case outcomes among the federal circuits.

The First Amendment and Threats

To aid courts in these finer factual distinctions, Supreme Court jurisprudence has established four areas of speech that schools may limit without contravening the First Amendment: (a) speech that is vulgar, obscene, plainly offense, and lewd in nature; (b) speech that is school sponsored; (c) speech that promotes the illegal use of drugs or other controlled substances; and (d) speech that does not meet any of the preceding criteria (McNeil ex rel. C.L.M. v. Sherwood School District, 2016). School shooting threat cases typically fall in category (d) and are predominantly governed by the Tinker rule (McNeil ex rel. C.L.M. v. Sherwood School District, 2016). To illustrate the application of the above outlined tests, the remainder of this review focuses on select school shooting threat cases1 at the federal level that turned on the question of whether the scope of First Amendment afforded protection to the speech or whether the speech or expression represented unprotected threats.

Cases Where the First Amendment Applies

Although most cases outlined in Tables 2 and 3 exemplify outcomes where speech was unprotected or schools were found to have compelling interests in regulating the speech, the few cases where speech or expression were judged to be protected are nevertheless instructive. In particular, two cases serve as good examples where speech and/or expression are protected by the First Amendment. In Burge ex rel. Burge v. Colton School District 53, (2015), a 14-year-old student received a “C” letter grade from the teacher in his health class. Due to his poor academic marks, the student’s parents grounded him for a portion of his summer vacation. Disgruntled, the student then made a series of posts on Facebook from his home (which only people on his friends list could see) suggesting a petition be made to get the teacher fired, and other statements that the health teacher needed to be shot for handing out poor grades. Because the student’s parents were monitoring his Facebook activity, the comments about the health teacher were deleted within 24 hours. Within that 24-hour timeframe, however, another parent made a printout of the post and anonymously placed it in the school principal’s mailbox. The student was subsequently suspended for his statements, resulting in the student bringing a section 1983 civil action against the school for violating his First Amendment rights. The school argued that the student’s statements constituted a true threat, and that the school had a compelling interest in regulating off-campus speech that was materially or substantially disruptive to the school. Applying the true threat analysis, the Federal District Court of Oregon noted that under the subjective test, the student’s statements were not intended to actually threaten or intimidate the teacher. The student was obviously upset over his grade and shared his thoughts with friends privately on Facebook, partially to elicit their reactions. No subjective intention to harm was present. Per the objective test, the court reasoned that the reactions of the student’s friends to the comments suggested they did not take it seriously, nor would a reasonable person foresee such statements would be interpreted as a true threat (Burge ex rel. Burge v. Colton School District 53, 2015). Had the student posted pictures of a gun or some other weapon in addition to his Facebook posts, the outcome of the case may have been different.

In some cases, protected speech or expression is nonverbal, taking the form of drawings, paintings, or symbols. In Porter v. Ascension Parish School Board (2004), a 14-year-old high school student drew a picture of his school under siege by a gasoline truck, missile launcher, helicopter, and soldiers with guns. The drawing also contained obscene and racialized language, negative statements toward the school and the principal, and depicted a figure throwing a brick at the principal of the school. The student subsequently placed the sketch in a closet at home and presumably forgot about it. Two years later, the student’s little brother found the drawing in the closet and took it to his middle school whereupon another peer observed the drawing and alerted school authorities. Based on this two-year-old drawing, the student was suspended from his high school. On appeal, the Fifth Circuit reviewed the school board’s decision to suspend the student, noting that the school had applied Tinker and a true threat analysis in determining the sketch was not protected and that the school had a compelling interest in regulating the drawing due to its potential to substantially interfere with school business. The Fifth Circuit, however, disagreed. The court reasoned several facts obviated any inference of intention to threaten or cause injury to specific individuals or the school generally. Given that the drawing was made off-campus in the privacy of the student’s home, not distributed, publicized, or conveyed in any manner, nor purposefully taken by him to his high school collectively indicated that the drawing was not speech directed at the school and it did not amount to a true threat (Porter v. Ascension Parish School Board, 2004). Perhaps the drawing would not have been deemed protected under the First Amendment had the student taken the drawing to school and shared it deliberately in one of his classes. However, a crude crayon drawing that by unfortunate happenstance made its way onto a school campus does not establish an intention to purposefully or knowingly convey a threat. Additionally, this case illustrates how far below the bar the student’s intentions were in comparison to the subjective intent standard now required by Elonis.

Cases Where the First Amendment Does Not Apply

Some cases resulting in a lack of First Amendment protection appear to be “clear-cut,” such as those where certain speech or expression is so unequivocally threatening that it easily surpasses constitutional protection. For example, the Eighth Circuit handled a particularly disturbing case in Doe ex rel. Doe v. Pulaski County Special School District (2002). There, male student J.M. and female student K.G. were in an intimate relationship in the 7th grade, but K.G. decided to break-up with J.M. to pursue other love interests. J.M., distraught by the break-up, “drafted two violent, misogynic, and obscenity-laden rants expressing a desire to molest, rape, and murder K.G.” (p. 619). During the same general timeframe, J.M. had also made a series of phone calls to K.G. reiterating his violent intentions. At first, the letters were at J.M.’s home and were discovered by his friend D.M. while the two were visiting. J.M. caught D.M. reading the letter and quickly grabbed it out of his hands but decided to give it back after D.M. requested to keep reading it. Subsequently, D.M. took the letter to school and gave it K.G. without J.M.’s knowledge. The letter and its contents were read aloud by K.G. in gym class in the presence of other students and was also made known to the school principal. The school ultimately determined the letters contained terroristic threats directed at a particular student, and therefore J.M. was expelled.

Importantly, the Eighth Circuit in Doe noted that the other circuits addressing true threat analyses had (at that chronological point in legal precedent) agreed that an objective standard existed as to whether reasonable persons would take the threat as conveying a real intent to cause harm; yet, whether the standard should be observed from the speaker’s standpoint or the recipient’s standpoint was fragmented among the circuits. In deciding their position, the Eighth Circuit remarked, “Our court is in the camp that views the nature of the alleged threat from the viewpoint of a reasonable recipient” (p. 622). The Eighth Circuit further defined a list of factors which they deemed to be relevant in the determination of whether a reasonable person receiving the threat would perceive it as truly threating. These included (a) the recipient’s reaction to the threat, (b) whether the speech constituted a conditional threat, (c) whether the threat was directly conveyed to the recipient, (d) whether the speaker had a history of making threats against other people, and (e) whether the person being threatened had reason to believe the speaker could be violent. Despite J.M. claiming his writings were intended to comprise lyrics for a rap song, the Eighth Circuit held that J.M.’s letters and their content specifically communicated an intention to rape and murder his prior girlfriend and classmate, K.G. The court also held that a reasonable recipient would have taken the contents of the letter to be a real threat, and thus the threatening speech contained in the letter was not protected by the First Amendment. If J.M. did not mean for the threats to be conveyed to their intended target, then he would have prevented D.M. from continuing to read the letter rather than handing it back to him. Additionally, J.M. would not have made phone calls reiterating his violent feelings toward K.G. (Doe ex rel. Doe v. Pulaski County Special School District, 2002).

In other cases, the facts appear to exist in a vague “grey area” where it is not necessarily intuitive that speech and/or expression would not warrant constitutional protection (see generally Barnard, 2019; Nappen, 2003). Indeed, some incidents involve circumstances that, without a linchpin fact, would not intuitively fall outside of the protection afforded by the First Amendment. For example, does the First Amendment protect writings in the form of a dream in which a person commits a school shooting? The Eleventh Circuit faced this exact issue in Boim v. Fulton County School District (2007). In that case, a Roswell High School student dreamt she was walking to school with a gun hidden in her pocket. As the school day progressed in the dream, the tension built up until she pulled the gun from her pocket and shot her math teacher twice. After realizing what she had done, she ran out of the school and awoke from the dream. The student decided to write the dream down in a notebook and subsequently brought the notebook to school in her backpack. In her art class, she shared the contents of the notebook with another student. The art teacher saw the interaction between the two students and therefore demanded that she hand over the notebook. At first the student tried handing the teacher a different notebook, but eventually she handed the one with the dream over to the teacher. The contents of the notebook were read by the teacher and the dream was reported to authorities. As a result, the student was suspended (Boim v. Fulton County School District, 2007).

In applying the Tinker rule, the Eleventh Circuit ruled the dream was not protected by the First Amendment (Boim v. Fulton County School District, 2007). Specifically, the court reasoned that by writing down the contents of her dream and bringing them to Roswell High School, the student increased the probability “to the point of certainty” that her dream and its message would become known (p. 985). Because she did not keep the notebook at home or otherwise strictly control its dissemination, it was reasonably foreseeable that the contents of her dream would not only become known to her classmates, teachers, or staff, but that it was likely to cause a substantial disruption and/or interference with school operations (Boim v. Fulton County School District, 2007). Although the Eleventh Circuit in Biom ruled the writing unprotected by the First Amendment, the case undoubtedly represents a “close call.” If the student had not shared her notebook with another student in class, it is less likely that the court would have ruled the dream unprotected. This is likely not only because it would not have come to the attention of teacher, but also because the intention to make it known would be absent. In short, the fact that mattered most in this case was the action of showing the contents of the dream to another student. Without that linchpin fact, the application of Tinker and the resulting decision by the Eleventh Circuit would be questionable. Thus, the exercise of discretion and the ultimate outcome of whether speech or expression in the form of “school shooting threats” are protected or not under the First Amendment according to the legal tests, rules, and standards may sometimes depend on the existence or nonexistence of a singular fact.

Conclusion

This review emphasized that there are unique facets of judicial discretion and decision-making that occur in school shooting threat cases, and that the application of discretion in whether speech or expression constitutes a school shooting threat is guided by analytical frameworks in the form of six distinct tests and rules: the Tinker rule; the nexus test; reasonable foreseeability; the true threat analysis; the subjective test; and the objective test. Quite frequently, the exercise of discretion within these analytical frameworks produces final outcomes that do not support the protection of certain speech and expression, although some final dispositions do. Also evident is that the applicability of tests and rules depend, in part, on the minutiae of incident characteristics, nuanced facts, and sometimes vague intentions. Indeed, it is surprising that the majority of federal court cases discussed in this review have produced somewhat consistent results despite seemingly unpredictable and variable fact patterns.

Additionally, one of the primary considerations in school shooting threat cases concerns the First Amendment. As previously discussed, courts employ a wide variety of interpretive mechanisms to determine whether speech and expression is or is not protected, including analyses of the facts according to the considerations listed in Table 1. In light of those considerations, the application of any test or rule within school shooting threat cases must always balance the content and context of statements between (a) the need to ensure public safety and (b) the need to ensure First Amendment rights are not violated.

Limitations, Policy Implications, and Future Research

Given that this article is one among a small number of others that have assessed school shooting threats in the context of federal court jurisprudence, future exploration of judicial decision-making in school shooting threats is needed. Pragmatically, a systematic or quantitative review of a large sample of threat cases could reveal certain patterns in different courts’ application of interpretive standards. These insights could then be used to develop more judicially systematized responses within and between federal circuits and districts (see Cornell, 2003). Additionally, the current review considered only those cases occurring in federal district and circuit courts which is inherently limited. Thus, the application of comparable tests and rules in school shooting threat cases within the various state court systems in the U.S. remains unaddressed. Future research should consider both (a) broadening the sample of available federal cases and (b) consider the large number of state cases that process school shooting threats, particularly given that the overwhelming majority are adjudicated in state courts. Doing so may produce more robust analytical inferences and provide insight into the unique similarities and differences between state and federal adjudicatory processes. Furthermore, research of this kind could be used to inform school-based policies concerning threats, as well as guide students on what is and is not appropriate behavior, speech, or expression in school environments. For example, some students may assume that having a dream about a school shooting and then sharing it with other students is harmless, when in fact it may be more detrimental than they realize (see Boim v. Fulton County School District, 2007). Developing bright line standards can help educate students that certain speech or expression, even when speakers consider their language to be a “joke” or the beginnings of rap lyrics, may actually constitute threats and therefore may be criminally punishable. Lastly, analyses of school shooting threat cases could serve as a feedback mechanism for judges and courts across the U.S. and therefore clear up serious confusion as some scholars have pointed out (Crane, 2006; Stanner, 2006). In this sense, research on the subject could inform future decisions, analytical approaches, and judicial review which can enhance the overall application of judicial discretion in decision-making, therefore providing and applying clear standards in school shooting threat cases.

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