On November 17, 2021, the Pennsylvania Supreme Court concluded that when analyzing whether an expression by a student is a true threat, schools must utilize a subjective standard instead of the longstanding objective standard.
This represents a substantial change from the previous test, which did not consider the speaker’s intent in determining whether the expression in question represented a true threat.
In J.S. v. Manheim Township School District, the Court developed this new true threat standard by reasoning that in order for schools to censor a student’s First Amendment right, it shall determine whether the student intended the communication to be a serious expression of an intent to inflict harm. Regardless of whether an expression does amount to a true threat under the subjective standard, schools will then resume the historical Tinker analysis to determine if the speech causes or foreseeably could cause a substantial disruption to the school environment. In applying the subjective standard, the Court disagreed with the School District finding that J.S. did not engage in unprotected speech and did not cause a substantial disruption to the school environment.
Manheim Township School District expelled J.S. for allegedly making terroristic threats and bullying another student through social media, outside of the school day and off school property.
J.S. and another student (“Student One”) made fun of a third student (“Student Two”) by claiming Student Two looked like a school shooter. J.S. created memes that he shared via Snapchat with Student One. One of the memes was a photograph of Student Two captioned: “I’m shooting up the school this week. I can’t take it anymore I’m DONE!” After seeing this meme, Student One responded “LOL.” Neither J.S. nor Student One included Student Two in their conversations.
Student One published the second meme on his Snapchat until J.S. asked him to take it down. The meme was reported to the School District who contacted the police. The police concluded that there was no threat to school safety. Ultimately, the School District expelled J.S. for his violations of its Terroristic Threats/Acts and Bullying Policies.
J.S. appealed the decision to the Lancaster County Court of Common Pleas and argued that the School District’s determinations were not supported by substantial evidence. The trial court agreed with J.S. and relied on two seminal Pennsylvania true threats cases, J.S. v. Bethlehem Area School District (decided in 2002) and Commonwealth v. Knox (decided in 2019). The PA Supreme Court utilized two different standards in Bethlehem Area School District and Knox when determining whether an expression amounts to a true threat – the former an objective standard and the latter a subjective standard.
Traditionally, courts define a “true threat” as a communication that a speaker intended to be a serious expression of an intent to inflict harm, i.e., intended to intimidate or threaten the recipient of the message.
In Bethlehem Area School District, the PA Supreme Court employed an objective reasonable person approach, inquiring whether the speaker would reasonably foresee that the statement would be interpreted as a serious expression of purpose or intent to inflict harm. Contrarily in Knox, the same court concluded that an objective, reasonable-listener standard, such as that used in Bethlehem, is no longer viable for purposes of a criminal prosecution pursuant to a general anti-threat enactment and that the First Amendment required an inquiry into the speaker’s mental state.
The trial court analyzed these cases in conjunction with the famous Tinker v. Des Moines Independent Community School District, to also determine whether J.S.’s memes caused or could cause a substantial disruption of school activities or an invasion of the rights of others.
On appeal, the School District argued that the lower courts improperly used the subjective criminal intent analysis of Knox, displacing the objective standard set forth in Bethlehem Area School District. The Court also considered the implication of Mahanoy Area School Dist. v. B.L., a 2021 United States Supreme Court that did not involve true threats but discussed a school’s ability to restrict on-campus versus off-campus speech.
In considering Bethlehem Area School District, Knox, and Mahanoy, the Court concluded that the proper inquiry is whether the speaker intended the communication to be a serious expression of an intent to inflict harm, i.e., intended to intimidate or threaten the recipient of the message. The Court noted, a subjective intent approach is especially important for off-campus speech, including the home, where the authority of the school is diminished, and parent control is increased.
The Court developed a two-part inquiry in determining whether an expression is a true threat: (1) examining the content of the speech, and then (2) assessing relevant contextual factors surrounding the speech. The factors include, but are not limited to: (a) the language employed by the speaker; (b) whether the statement constituted political hyperbole, jest, or satire; (c) whether the speech was of the type that often involves inexact and abusive language; (d) whether the threat was conditional; (e) whether it was communicate directly to the victim; (f) whether the victim had reason to believe the speaker had a propensity to engage in violence; and (g) how the listeners reacted to the speech.
In applying this new test, the Court concluded that J.S. did not intend to communicate a serious expression of an intent to inflict harm, intimidate, or threaten the recipient of the message. Moreover, the Court found that any disruption from J.S.’s actions were not substantial enough to meet the Tinker standard.
Bottom Line for Schools
In the Mahanoy case, the United States Supreme Court sent a clear message to school administrators to tread lightly when it comes to meting out discipline for student speech outside of school.
Now, in Manheim Township, the Pennsylvania Supreme Court has raised the bar further by requiring school administrators and school boards to evaluative the subjective intent of a communication that might otherwise suggest a threat. This is yet another reason for school administrators to work collaboratively and consult counsel before imposing discipline for student speech.
School Law Bullets are a publication of KingSpry’s Education Law Practice Group. This article is meant to be informational and does not constitute legal advice.