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Having winners of the Nobel and Pulitzer prizes on your side in a free-speech fight apparently is a good thing. On Thursday, the California Supreme Court — in a ruling that liberally cited a herd of amici curiae, including Nobel winner J.M. Coetzee and Pulitzer recipient Michael Chabon — ruled that violent poetry written by a San Jose high school student in 2001 did not constitute a criminal threat. “While the protagonist in �Faces’ declares that he has the potential or capacity to kill students given his dark and hidden feelings, he does not actually threaten to do so,” Justice Carlos Moreno wrote for a unanimous court. “While perhaps discomforting and unsettling, in this unique context this disclosure simply does not constitute an actual threat to kill or inflict harm.” First Amendment advocates worried that school officials — following sensational shootings at Colorado’s Columbine High School in 1999, California’s Santee High School in 2001, and others — were overreacting to security concerns by squelching students’ creativity and individuality nationwide. Besides Coetzee and Chabon, 10 famous writers signed on as amici curiae, as did numerous organizations as diverse as the American Civil Liberties Union of Northern California and the Comic Book Legal Defense Fund. In 2001, George T., a 15-year-old recent transfer to San Jose’s Santa Teresa High School, handed poems he had written to three female classmates. The primary poem, “Faces,” described the writer as “Dark, Destructive & Dangerous,” and stated that he “can be the next kid to bring guns to kill students at school.” The boy, who signed his poetry “Julius AKA Angel,” was arrested by police for making criminal threats in violation of state Penal Code Section 422. Santa Clara County Superior Court Judge Nazario Gonzales later adjudicated George T. a ward of the court and ordered him to serve 100 days in juvenile hall. San Jose’s Sixth District Court of Appeal affirmed the decision in a split decision in 2002. In reversing, the Supreme Court said George T.’s poetry was not so “unequivocal, unconditional, immediate and specific” to convey a direct threat. “�Faces’ was in the style of a relatively new genre of literature called �dark poetry’ that amici curiae . . . explain is an extension of the poetry of Sylvia Plath, John Berryman, Robert Lowell and other confessional poets who depict �extraordinarily mean, ugly, violent or harrowing experiences,’” Justice Moreno wrote. “Consistent with that genre,” he continued, “�Faces’ invokes images of darkness, violence, discontentment, envy and alienation. The protagonist describes his duplicitous nature — malevolent on the inside, felicitous on the outside.” In reaching its conclusion, the Supreme Court conducted an independent review, rejecting the state attorney general’s insistence that it follow the more stringent substantial evidence standard of review. “Independent review is particularly important in the threats context,” Moreno wrote, “because it is a type of speech that is subject to categorical exclusion from First Amendment protection, similar to obscenity, fighting words and incitement of imminent lawless action.” The ACLU’s Ann Brick hailed the ruling as proof that “students’ creative works deserve the same high level of First Amendment protection as that accorded to established poets, authors and artists.” Yet the court did not protect poets as thoroughly as the amici curiae had wished. In a footnote, the court declined their request that poems be given a “very strong presumption” that they are not true threats. “No bright-line rule may be drawn that adequately distinguishes a poem such as the one involved in the present case (or even poems of Plath, Lowell and Berryman),” Moreno wrote, “from a �poem’ that conveys a threat, such as, �Roses are red. Violets are blue. I’m going to kill you, and your family, too.’” Such a poem drew laughter when it was suggested by Justice Janice Rogers Brown during oral arguments in May. The high court acknowledged that school officials have a tough job and can’t ignore security concerns. In a separate concurring opinion, Justice Marvin Baxter said school and law enforcement officials in San Jose had “every reason to worry that [George T.], deeply troubled, was contemplating his own campus killing spree.” “Accordingly, the authorities were fully justified, and should be commended, insofar as they made a prompt, full and vigorous response to the incident. They would have been remiss had they not done so.” Nevertheless, Moreno held, ensuring safety and protecting freedom of expression “are not necessarily antagonistic goals.” George T.’s attorney, Michael Kresser, executive director of Santa Clara’s Sixth District Appellate Program, couldn’t be reached for comment Thursday. But San Francisco-based Deputy Attorney General Jeffrey Laurence took an upbeat position on the ruling, saying that the state has never viewed the case as one “criminalizing poetry or trying to put limitations on the First Amendment.” “We are gratified that the court reaffirmed that California’s criminal-threat statute satisfies First Amendment requirements,” he said. “And we are gratified that the court reaffirmed that when you have a true threat, that simply labeling it poetry or putting it in verse or lyrics does not create any additional presumption against criminality.” The ruling is In re George T., 04 C.D.O.S. 6524.

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