33 Cal. 4th 620, 93 P.3d 1007, 16 Cal Rptr.3d 61, 190 Ed. Law Rep. 550 (2004).
A California juvenile court found that George T., a high school student, had made a criminal threat in violation of California Penal Code Section 422 by writing a poem and giving it to fellow students in his English Honors Class. On October 23, 2002, the California Court of Appeals upheld the juvenile court’s finding of delinquency. George T. appealed to the California Supreme Court, and the Court agreed to hear the case. NCYL joined the Juvenile Law Center, Legal Services for Children, and Legal Advocates for Children and Youth in an amicus brief that supported the student’s contention that the poem was a lawful exercise of his First Amendment rights and not a criminal threat under the California Penal Code. On July 22, 2004, the California Supreme Court held that the student’s poem did not constitute a criminal threat and reversed the decision of the Court of Appeals.
While in his English Honors Class, the youth, George T., handed a poem to Mary, one of his classmates. On the cover page, George T. wrote, “these poems describe me and my feelings. Tell me if they describe you and your feelings.” George T. was new to the school and had no significant prior history with Mary. When he handed Mary the poem he also asked whether there was a poetry club at the school. In the poem, George T. described himself as dangerous and evil, and declared that he could be the next kid to bring guns to kill students at school. Although the student had disciplinary issues at other schools in the district, he had no prior history of violence.
Mary subsequently alleged that she was fearful and told her parents about the poem when she came home. She also emailed a summary of the poem to her English teacher. The teacher called the police who subsequently appeared at the school the following day. The police proceeded to arrest George T. and charged him with making a criminal threat in violation of California Penal Code Section 422. At his trial, the Santa Clara County juvenile court concluded that George T.’s poem and his handing it out to other students met all five of the elements necessary to establish a criminal threat.
On appeal, the Court of Appeal upheld the juvenile court’s finding of delinquency. The Court of Appeal found that there was sufficient evidence to conclude that the poem constituted a criminal threat. The Court also rejected his claim of First Amendment protections on the basis that the speech was not entitled to protection because it “would materially and substantially disrupt the work … of the school.”
Amici argued in the Supreme Court that the delinquency finding should reverse for several reasons. First, amici noted that the lower courts failed to take into consideration normal adolescent development when assessing the criminal intent of George T.’s behavior. Second, amici pointed out that the poem, though expressing unpleasant and angry thoughts, was entitled to the same constitutional protection as other written expression. Third, amici noted that the lower courts appeared to operate under the misconception that schools are increasingly violent when in fact there is significant data demonstrating the contrary. Finally, amici concluded that such misconceptions about school safety have led in this case as well as others to the criminalization of minor offenses that are best handled by school officials rather than police officers and juvenile courts.
The California Supreme Court reversed the lower court decision and held that the student’s poem, along with the circumstances surrounding its dissemination, did not constitute a criminal threat. In making its decision, the Court determined that the case did implicate the student’s First Amendment rights. For this reason, the Court did not apply a substantial evidence test as its standard of review, but rather conducted an independent review of the lower court’s finding that the student violated the criminal threat statute. Based on its independent review of the facts, the Court concluded that the prosecution had failed to establish all of the elements necessary to prove a criminal threat. In particular, the Court concluded that the poem and the circumstances surrounding its dissemination were not “so unequivocal, unconditional, immediate, and specific as to convey a gravity of purpose and an immediate prospect of execution of the threat.” 33 Cal. 4th 620, 93 P.3d 1007, 16 Cal Rptr.3d 61, 190 Ed. Law Rep. 550 (2004).
Counsel: Pat Arthur, NCYL; Abigail Trillin, Legal Services for Children; Marsha Levick, Juvenile Law Center; Michael A. Kresser, Sixth District Appellate Program.