A juvenile did not utter true threats when he said people deserved to die and that he wanted “to beat the record of 19,” the Pennsylvania Supreme Court has ruled. The state high court also ruled, however, that a person can utter a true threat recklessly. That question has sharply divided lower courts across the country. 

In early February 2018, K.M., a 14-year-old student at the vocational high school West Side Career and Technology Center in Kingston, Pa., said he heard 15-year-old J.J.M. say that he “doesn’t think people deserve to live and everyone should just die.” K.M. did not report this statement to school authorities at the time.

However, on Feb. 18, 2018, 15-year-old M.W., a classmate of J.J.M.’s, allegedly heard J.J.M. say in the school hallway that he “wanted to beat the record of 19.” M.W. interpreted this to mean that J.J.M. wanted to beat the record of individuals slain by students. J.J.M. made the statement six days after the infamous school shooting at Marjory Stoneman Douglas High School in Parkland, Fla.

M.W. told school authorities of the statement and expressed concern that J.J.M. might be a possible school shooter. When K.M. learned of this “beat the record” statement, she also reported J.J.M.’s earlier statement that she had overheard. School authorities expelled J.J.M. from the vocational high school.

Police later charged J.J.M. with making a terroristic threat and disorderly conduct. Pennsylvania’s anti-threat law provides:

A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to:

(1) commit any crime of violence with intent to terrorize another;

(2) cause evacuation of a building, place of assembly or facility of public transportation;

or (3) otherwise cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.

At a hearing before a juvenile master, J.J.M. was adjudicated delinquent for making a terroristic threat but not disorderly conduct. The juvenile master placed J.J.M. on probation, ordered him to comply with any mental health recommendations, and prohibited him from having contact with weapons.

J.J.M. appealed to the Luzerne County Court of Common Pleas. This trial court upheld the juvenile master’s adjudication of delinquency for uttering threats. J.J.M. then appealed to Pennsylvania Superior Court. A three-judge panel of that court also affirmed the delinquency adjudication in September 2019.

J.J.M. appealed further to the Pennsylvania Supreme Court, the state’s highest court. J.J.M. argued that the threat statute was unconstitutional  because it was too broad and allowed convictions for true threats that are only made recklessly.

The high court reversed the adjudication of guilty, reasoning that J.J.M’s statements did not rise to the level of a true threat. However, the court also held that — under the right circumstances — a person can recklessly utter a true threat. In other words, a person can be convicted under the anti-threat law even if the defendant does not actually intend to harm someone.

Writing the main opinion, Justice Kevin Dougherty explained in In the Interest of J.J.M.  that other courts “have disagreed regarding whether — in order for a statement to constitute an unprotected true threat — the speaker must merely intend to communicate the statement or whether the speaker must also intend that the statement be interpreted by the recipient as a serious expression of an intent to commit an act of unlawful violence.”

J.J.M. argued that his delinquency adjudication was invalid, because the lower courts failed to consider whether he actually had the subjective intent to intimidate others. He also argued that his first statement – that people deserved to die — was more opinion than any sort of threat, and that his other statement about “beating the record of 19” was vague.

Conversely, the Commonwealth argued that the true-threat exception applies to statements that cause others fear and disruption. The Commonwealth contended that an individual can recklessly utter a true threat.

Dougherty wrote that “we agree with [the government] that the First Amendment does not prohibit the States from criminalizing threats made in reckless disregard of the risk of causing fear.” He added that the law “requires proof of a conscious disregard of a substantial and unjustifiable risk of terrorizing or intimidating others.”

However, Dougherty then reasoned that J.J.M. did not utter a true threat. 

“The entire record demonstrates only that [J.J.M.] expressed an opinion to one person, and then, weeks later, another person overheard him make a facially ambiguous statement either to himself or an unidentified third party,” he wrote. Dougherty said the first statement was an opinion and the second was simply too vague.

Dougherty emphasized that J.J.M. did not aim his comments at a specific recipient but apparently uttered the comments generally. He further wrote, “There is simply no evidence on this record from which to conclude appellant was aware the ambiguous remark he made might cause a serious public inconvenience or terror, and consciously proceeded to disregard that risk.”

Justice Debra Todd, joined by two other justices, wrote a concurring opinion. She agreed that the delinquency adjudication should be vacated but also said the anti-threat law was unconstitutional because it was too broad and could apply to threats made recklessly instead of intentionally or knowingly.

Todd wrote: “I conclude that, in order to criminalize a defendant's speech as a true threatwithout violating the First Amendment, the government must prove that the defendant intended that the recipient feel threatened, not merely that the defendant communicated or uttered words which might be construed as threatening by a listener.”

Justice Sallie Updyke Mundy, joined by one other justice, wrote an opinion concurring in part and dissenting in part. She agreed with the majority that the anti-threat law was constitutional. However, she agreed with the lower courts that there was sufficient evidence to determine that J.J.M. had uttered true threats.

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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).