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By
Jayne Kuehn, Attorney,
DeWitt Ross & Stevens SC
On
January 15, 2008, the Wisconsin Court of Appeals,
District I, reversed a decision of the Circuit Court for
Milwaukee County in the matter of State of Wisconsin v.
Robert T., Appeal N. 2006AP2206. The case involved a 911
call to the police from a school pay phone by a student
stating that there was a bomb in the school. A
surveillance camera in the school later identified the
student who was charged with a violation of WIS. STAT.
947.015, entitled “Bomb scares”. The student admitted
placing the call saying that “he was bored”. At the
trial court level a motion to dismiss was filed on
several grounds including a claim that the bomb scare
statute was too broad and violated the the Due Process
Clause of the 14th Amendment and the free speech
provisions of the Wisconsin and United States
Constitutions. The trial court found that the statute
was “impermissibly overbroad” and therefore
unconstitutional. The State appealed and the lower court
decision was reversed.
The
State's successful basis for appeal is an important and
frequently utilized tenet of constitutional law in the
realm of education. The State argued that WIS. STAT.
914.015 only prohibits speech which are “true threats”.
True threats are not protected by either the Wisconsin
or United States Constitution and as such may be
prohibited by law and punished accordingly. School
officials, in maintaining a safe and orderly school
environment, are frequently required to determine
whether or not speech and behavior constitutes a “true
threat” or merely a threat. Their response and the
resulting discipline are dependent upon that
determination. In this case the “bomb scare” statute
prohibits the speech (the threatening phone call) and
establishes the penalty.
On
appeal, in addition to challenging the constitutionality
of the statute, the student also argued that a “true
threat” must be directed at a person or persons and must
specifically threaten physical harm or death. The
Appeals Court rejected this argument, too, and found
that the language of WIS. STATE. 914.015 clearly
prohibits a threat to destroy property. The
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