A middle school student did not make a true threat when he helped create a drawing depicting his school being blown up by a bomb, a Wisconsin appeals court has ruled. The court relied principally on the fact that the student and his co-drawer did not intend to share the drawing with anyone else.  

In 2018, students A.N.G. and T.B. were classmates in a middle school summer-school program. During class, T.B. made a drawing with A.N.G.’s help. The drawing, which included both students’ names, showed a cartoon-style bomb, a school building, and a body lying on the ground.

Two weeks later, still carrying the bomb drawing around, T.B. and A.N.G. were communicating with each other in class. The teacher, thinking they were passing a note to each other, confiscated the piece of paper.

The teacher then questioned both boys and sent them to the school administrative office. Administrators contacted the police, who interviewed the boys and then searched their residences. Police found no weapons or bomb-related material.

The police pursued delinquency findings against A.N.G. of making a terroristic threat and disorderly conduct. (The court opinion doesn’t say whether or what type of charges were brought against T.B., who is not a party in this case.) A circuit court determined that A.N.G. had made a true threat with his involvement in the drawing and judged him delinquent on both charges. 

On appeal, the Wisconsin Court of Appeals reversed in its May 21, 2020, decision in State v. A.N.G.  The court emphasized that in  determining whether a communication is a true threat, courts must consider many factors, including how the recipient and others reacted to the alleged threat; whether the threat was conditional or explicit; whether the threat was communicated directly to an intended victim; whether the maker of the threat had made similar statements in the past; and whether the victim had reason to believe that the maker of the threat had violent tendencies.

A.N.G. argued that the drawing was not a true threat, and therefore was protected speech under the First Amendment, because he and T.B. intended to keep it private and not show it to any third party. He also argued that school staff had no reason to believe that he had any violent tendencies.

The state countered that the drawing was a threat, because it was not created as part of a school assignment and because it was not hyperbole or a joke. The state also argued that it was reasonably foreseeable that the drawing would be seen by others in class. The state also noted that A.N.G. had made a disturbing statement six months before the drawing: “Get out of the hallway before I turn this into a shooting range.” 

The appeals court judge determined that A.N.G. did not engage in a true threat because he did not intend for there to be any recipient-listener. Rather, he talked about it only with his classmate and co-creator. "

“This would be a different case if the boys took steps that had the effect of inviting any school staff or other students to view the drawing, or if there was evidence that A.N.G. knew that his workbook was going to be reviewed by the teacher after the drawing’s creation,” the appeals court wrote. The court emphasized that “there was no intent to ‘communicate’ the drawing to anyone.” 

Regarding A.N.G.’s statement six months earlier about turning the hallway into a “shooting range,” the appeals court called the statement “certainly concerning” but said it did not overcome the fact that A.N.G. did not intend to threaten anyone with the drawing. 

The appeals court “conclude[d] that A.N.G.’s private drawing was not a true threat in the constitutional sense” and dismissed the delinquency petition. 

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 First Amendment: Freedom of Speech (2012), of a 12-part lecture series titled Freedom of Speech: Understanding the First Amendment (2018), and of a 24-part lecture series, The American Constitution 101 (2019).