A Maryland high school student adjudicated delinquent for making a threat had that adjudication reversed on First Amendment grounds by an appellate court that determined the student had engaged in an off-color joke rather than a true threat.
In September 2019, 17-year-old J.W. was a student at Henry E. Lackey High School in Indian Head. J.W. entered a history teacher’s classroom during eighth period looking for a folder. When J.W. could not locate the folder, he said that if he could not find it, he was going to “shoot up” or “blow up” the school, according to three witnesses. He also pointed at another student, T.L., and said she would be his first victim.
The history teacher, Aaron Craft, decided it was his duty to report the comments to the school administration. The administration ultimately determined that the incident did not present a threat to the school.
However, the incident was reported to law enforcement, which also investigated. The state brought two charges in court against J.W. – (1) disturbing school operations; and (2) knowingly making a threat. A circuit court, sitting as a juvenile court, found that J.W. did not willfully disturb school operations but did adjudicate him delinquent for making a threat. The circuit court judge placed J.W. on three years of probation.
On appeal, J.W. argued that he did not utter a true threat but instead was joking. The Maryland Court of Special Appeals reversed in its March 12, 2021, decision in In Re J.W., finding that J.W. did not utter a true threat.
“Whether any particular statement is a true threat requires consideration of its context,” the appeals court wrote. The key, according to the court, is determining whether reasonable recipients of the statement consider it to be a serious expression of an intent to cause bodily harm.
The appeals court determined that there was insufficient evidence to find that J.W. uttered a statement that qualifies as a true threat. “The juvenile court’s finding that J.W.’s statement was a true threat is at odds with the evidence of how the statement actually was understood by those who heard it in context,” the appeals court wrote.
T.L. testified that she believed J.W. made the statement “very jokingly.” Another witness known as T.B. also did not understand J.W.’s statement as a serious expression of an intent to cause harm.
“There was ultimately no evidence that anyone viewed the statement as a serious threat,” the appeals court wrote. “In sum, the State did not produce a single witness who perceived the statement as a true threat.”
The appeals court reiterated that the First Amendment protects “idle or careless talk, exaggerated statements or statements made in a joking matter.”
The Free Speech Center newsletter offers a digest of First Amendment and news media-related news every other week. Subscribe for free here: https://bit.ly/3kG9uiJ
David L. Hudson Jr. is a professor at Belmont University College of Law who writes and speaks regularly on First Amendment issues. He is the author of Let the Students Speak: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), and of First Amendment: Freedom of Speech(2012). Hudson is also the author of a 12-part lecture series, Freedom of Speech: Understanding the First Amendment (2018), and a 24-part lecture series, The American Constitution 101 (2019).