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A junior high school student in Arkansas who wrote a violent letter to an ex-girlfriend does not enjoy First Amendment protection, the 8th U.S. Circuit Court of Appeals has ruled, even though he wrote the letter at home and did not deliver it. Doe v. Pulaski County Special School District, No. 01-1048. Referred to only as J.M. in the court’s opinions, the boy and his parents had appealed the school district’s decision to expel him for one year. The boy’s note — which said he’d be waiting for the girl under her bed with a knife — was delivered by a mutual friend who took it from the boy’s room, court records said. An Arkansas district court had concluded the letter was not a “true threat” and therefore had free-speech protection, and an 8th Circuit panel affirmed that decision. But an en banc panel voted, 6-4, to reverse the ruling on Sept. 25. J.M. wrote the letter the summer after the seventh grade, upset that his girlfriend, K.G., had broken up with him. The note stayed in his home until a friend, D.M., found it. At first, J.M. snatched it away from D.M., but then let him read it, although he would not let him make a copy. K.G. learned about the note from phone conversations with J.M., and asked D.M. to get it for her. D.M. took the letter from J.M.’s house and gave it to the girl in school. K.G. said she was so unnerved that for a few days she slept with the lights on. In determining whether the contents of J.M.’s note met the definition of a “true threat,” the 8th Circuit noted that courts part ways in deciding whether a statement should be viewed from a reasonable recipient’s or a reasonable speaker’s frame of reference. The 8th Circuit said that in most circumstances the result would be the same either way and that “the recipient’s reaction still must be a reasonable one even if he or she suffers from some unique sensitivity.” In determining that the boy intended to make a threat, the court noted that he had let his friend read the letter and had talked with K.G. about the note. “One can hardly say … ” the majority said, “ that J.M. intended to keep the letter, and the message it contained, within his own lockbox of personal privacy.” In the leading dissent, however, Judge Gerald W. Heaney said K.G.’s foreknowledge of the letter works against her, noting that rather than seek an adult’s help, she instead turned to “a complicated tangle of teenage networking.” Further, K.G. and J.M. had civil conversations after she learned of the letter. A reasonable person might well be shocked by the letter, he said, but would not feel endangered. In his own dissent, Judge Theodore McMillian questioned whether the school had any authority over the letter, given that it was written at home and then stolen. “If anything,” he said, “the statement was arguably a police matter, for which, I note, the local prosecuting attorney refused to issue any charges.” Little Rock, Ark., lawyer Greg Jones, who represented the school district, said this decision helps clarify the reasonable-response portion of the “true threat” test, tilting it more toward the recipient. Also, he said the court rightly recognized the disruption that such statements could have on schools. “These are danger signs that schools just can’t ignore,” he said. “You wish you could, but you can’t.” Morgan “Chip” Welch, who represented the boy at the behest of the American Civil Liberties Union, said the decision now allows, if not requires, the school board’s presence in its students’ bedrooms during the summer. And while he is sympathetic to school boards’ need to protect students, he calls this a case of oversensitivity. “I think that this case is haunted by the specter of Columbine,” he said. “I think we are all horrified at what children have gotten into in the last four or five years.”

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