Wisconsin high court: Speech alone can constitute disorderly conduct

By The Associated Press

05.17.01

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MADISON, Wis. — Disorderly conduct statutes can be used to prosecute speech, even if the words don't cause an actual disturbance, the state Supreme Court ruled in two cases yesterday.

It was the first time the court has ruled that speech not protected by the First Amendment can be prosecuted under the disorderly conduct statutes.

The court ruled in one case that a boy's fictitious story was protected by the First Amendment and overturned his conviction on a disorderly conduct charge. In the other, the justices found a boy's threat to kill everyone at his middle school, made six days after the Columbine High School shootings, was not protected speech and could be prosecuted.

"It's one of these situations where in each case you have to apply the standard to the particular facts," said assistant attorney general Jeffrey Kassel, who argued both cases for the state.

In the first case, an Oconto County boy was found guilty of disorderly conduct after he turned in a writing assignment that described how a student decapitated his teacher with a machete after she told him to be quiet in class.

The boy, identified in court records as Douglas D., had disrupted a class and was sent into the hallway to complete an assignment to write a story.

The state argued the teacher could feel reasonably threatened because of parallels between the story and actual events in class. The boy in the story was "Dick" and the teacher was "Mrs. C.," a nickname the teacher used in class.

But the Supreme Court found the boy's story did not constitute a "true threat," which would be outside the First Amendment protections and possibly covered by the disorderly conduct law.

The teacher was justified in feeling offended, but "a 13-year-old boy's impetuous writings do not necessarily fall from First Amendment protection due to their offensive nature," Justice Jon P. Wilcox wrote in the 6-1 decision.

The court went on to say the disorderly conduct law could criminalize written speech in other situations.

"We conclude that purely written speech, even written speech that fails to cause an actual disturbance, can constitute disorderly conduct," Wilcox wrote.

In the second case, the court unanimously upheld an appeals court decision to reinstate a disorderly conduct charge against a De Forest boy who told friends he was going to kill everyone at his middle school six days after the shootings in Littleton, Colo.

The court ruled the boy could be prosecuted for disorderly conduct and found that his comments were "true threats."

The boy was playing video games with several friends at a community center when he allegedly made the threats and gave details about how he would rape or kill teachers and administrators.

A 13-year-old girl overheard the conversation and asked him to stop. The boy did, but the incident was reported to police two days later. The boy was arrested and charged with disorderly conduct. A trial judge dismissed the charges, but an appeals court reinstated them.

The Supreme Court found the boy had no more right to say what he did than someone does to yell "fire" in a crowded theater.

"The right of free speech is not absolute," Justice William Bablitch wrote.

"When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable."

Joe Ehmann, head of the State Public Defender's appellate office in Madison, which handled the first case, said the court made it clear schools can punish students for what both boys did. But he said making such childish behavior punishable by law is in part a reaction to the Columbine shootings.

"We used to rely on parents and schools to take care of these kinds of problems," he said. "The trend now is to ask the state and criminal justice system to step in where parents and schools used to."

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