Littleton, Colorado; Newtown, Connecticut; Parkland, Florida — the names ring in infamy, the tragedies sear our collective consciences. According to a recent CNN story, since the 2018 school shooting at Stoneman Douglas High School in Parkland, Florida, there have another 31 incidents in which someone has been shot.  The shootings have caused much introspection, including some in the journalism industry wondering whether some news reporting on school shootings needs to be changed.  Another casualty caused by school shootings has been violent-themed student speech. Any violent-themed student speech now is viewed with grave suspicion that the student may be a troubled soul who might be the next shooter.
There is some precedent for taking violent-themed student work seriously. In February 1999, a high school student authored a creative-writing essay for class depicting a mysterious man with black gloves and a duffel bag who killed a group of students. “If I could face an emotion of god, it would have looked like the man,” the student-writer conveyed. “I not only saw in his face, but also felt eminating [sic] from him power, complacence, closure and godliness.” 
The student’s essay concerned his English teacher, who talked to not only the student but also his parents about the violent content of the essay. It was a just creative writing, not a big deal, the student and the parents said. But, the essay gravely concerned the teacher. She later referred to it in a police report as “literary and ghastly – the most vicious story I ever read.” The teacher’s concerns were validated.  The author of the essay was Dylan Klebold – who only two months later, along with classmate Eric Harris, unleashed a wave of terror at Columbine High School at Littleton, Colorado – and unfortunately, some copycats in future years.
Unfortunately, Columbine also unleashed a mindset that viewed student speech as not only substantially disruptive under the U.S. Supreme Court’s seminal student-speech decision, Tinker v. Des Moines Independent Community School District  , but also as true threats  – a separate category of unprotected speech in First Amendment law. Consider the cases of the stolen letter, the two-year-drawing, and the whistle-blowing rapper.
The Case of the Stolen Letter
Two students in Arkansas, J.M. and K.G., dated in middle school. Over the summer, the girl, K.G., broke up J.M., the boy. Frustrated by the breakup, J.M. intended to create a rap song modeled after such rappers as Eminem, Juvenile, or Kid Rock. Instead, he crafted a letter which was graphic for its violence. In the letter, J.M. talks of his desire to murder, rape, and sodomize K.G. 
J.M. never brought the letter to school. He merely allowed his friend, D.M., to read the letter. D.M. then told K.G. about the letter. K.G. convinced D.M. to get the letter for her. D.M. stole the letter from J.M.’s home and brought it to K.G.  Upon reading the letter at school, K.G. began crying and became very upset. School officials expelled J.M. and he had to attend alternative school. He and his mother filed a lawsuit in federal court. A reviewing federal district court ruled in J.M.’s favor, finding that his drawing was not a true threat, because he created the letter at home and never intended to bring it to school. 
On appeal, the 8th U.S. Circuit Court of Appeals reversed. The court applied a multi-factor test to determine whether the letter was a true threat. These factors included: (1) the reaction of those who heard the threat; (2) whether the threat was conditional; (3) whether the person who made the threat communicated it directly to the recipient; (4) whether the speaker had a history of making threats; and (5) whether the recipient had reason to believe that the speaker had a propensity to engage in violence. 
“We conclude here that J.M. intended to communicate the letter and is therefore accountable if a reasonable recipient would have viewed the letter as a threat,” the 8th Circuit majority wrote. The majority emphasized that although D.M. took the letter from his home, J.M. allowed D.M. to read the letter.  But, mainly, the majority focused on the graphic content of the letter, including the use of the f-word more than 90 times and the fact that the letter spoke of J.M. wanted to kill, rape, and sodomize K.G. “Viewing the entire factual circumstances surrounding the letter, we conclude that a reasonable recipient would have perceived J.M.’s letter as a serious expression of an intent to harm K.G.,” the court wrote. 
Several judges dissented from this ruling. One judge pointed out that J.M. was recently a certificate of honor winner from the Greater Jonesboro Chamber of Commerce with a record of good grades and good behavior. “Admittedly, the content of the letter is chilling,” the dissent wrote. “At its core, however, the letter is expression that was never intended to be communicated to K.G.; it was a private response to his break-up.”  Another judge wrote a short dissenting opinion, explaining that the letter was private speech that did not rise to the level of a true threat. 
The Case of the Two-Year-Old Drawing
When he was fourteen years old, Louisiana high-school student Adam Porter drew a picture on his sketchpad of his school, East Ascension High School, being firebombed by a missile launcher, gasoline truck, and other things.  Adam showed the sketchpad to his mother, brother, and a friend and then placed the sketchpad in a closest where it remained for two years.  Two years later in March 2001, Adam’s younger brother, Andrew Breen, picked up the sketchpad and took it to school with him. Andrew had been working on his own drawing, a picture of an llama. Andrew showed his drawing to a classmate on the school bus. The other student looked at the drawing and then also found Adam’s drawing of the school being firebombed. 
The other student told the bus driver that the kids were going to blow up the school. The bus driver contacted the principal and then the chain reaction continued. Interrogated by school officials, Andrew said the drawing of the school being firebombed was created by his brother Adam. School officials searched Adam’s locker and found a box-cutter.  The police placed Adam in jail for making terrorist threats and his school expelled him.
Adam and his mother filed a lawsuit in federal court, contending that his expulsion for a two-year-old drawing violated his First Amendment, free-speech rights. A district court ruled in favor of school officials. On appeal, the 5th U.S. Circuit Court of Appeals ultimately affirmed, finding that school officials were entitled to qualified immunity –a doctrine that protects government officials from liability unless they violate clearly established constitutional law.
The 5th Circuit found that Adam’s drawing did not constitute a true threat, as he had no intention of threatening anyone with a drawing that he placed in his closet for two years. “Private writings made and kept in one’s home enjoy the protection of the First Amendment, as well as the Fourth,” the 5th Circuit wrote.  “Because Adam’s drawing was composed off-campus, displayed only to members of his own household, stored off-campus, and not purposefully taken by him to EAHS or publicized in a way certain to result in its appearance at EAHS, we have found that the drawing is protected by the First Amendment.” 
But, Adam Porter still lost his First Amendment case. The federal appeals court ruled that the principal acted reasonably under the unique facts of the case. The appeals court focused on the “unsettled nature of First Amendment law as applied to off-campus student speech inadvertently brought on campus.” 
It was hard to argue with Adam Porter’s mother who told this author in 2010: “The very first thing we learn in studying the Constitution is that you cannot be punished for voicing your opinion, otherwise expressing yourself.”  Indeed, Adam Porter’s case was the “epitome of overreaction in the Columbine age.” 
The Case of the Whistle-blowing Rapper
Eighteen-year-old, high school senior Taylor Bell learned that two Caucasian teachers-coaches allegedly made sexually inappropriate comments to African-American female students. Bell, through his persona T-Bizzle, posted a rap recording on Facebook and then YouTube that blasted the teachers.  His song criticized the two Caucasian coaches for allegedly sexually inappropriate comments toward African-American female students. The song featured profanity and language that some considered possibly threatening, such as the line: “betta watch your back/I’m a serve this nigga, like I serve the junkies with some crack.” 
When school officials learned of the rap recording, they sent Bell home that day.  Later, the school superintendent suspended Bell for “alleged threatening intimidation and/or harassment of one or more school teachers.”  After a hearing, a disciplinary committee recommended to the school board that Bell face a seven-day suspension and be placed in an alternative school for the remainder of the grading period.  The school board not only determined that Bell intimidated and harassed the coaches but also that his vulgar rap recording also constituted a true threat. The board upheld the punishment. 
Bell sued in federal court, contending school officials violated his First Amendment free-speech rights. A federal district court ruled in favor of the school defendants, finding that Bell’s rap song constituted “harassment and intimidation of teachers and possible threats against teachers, and threatened, harassed, and intimidated school employees.” 
Bell appealed to the U.S. Court of Appeals for the Fifth Circuit. A divided three-judge panel of the Fifth Circuit reversed and ruled in favor of Bell.  The panel majority determined that school officials violated Bell’s First Amendment rights. The majority reasoned that the rap song was not a true threat. The dissenting judge, Judge Rhesa Hawkins Barksdale, proclaimed: “Regrettably, although the majority pays lip service to the increasing danger in schools, it then sanctions the threats, harassment, and intimidation in the rap recording, including by turning its back on the deference that must be accorded school administrators in dealing with such serious matters.”  She explained that Bell’s rap recording constituted a true threat. 
However, the school board petitioned for en banc, or full-panel review and prevailed. Judge Barksdale, the dissenter on the three-judge panel decision, authored the en banc majority opinion ruling against Taylor Bell. She emphasized the “recent rise in incidents of violence against school communities”  and “increasing concerns regarding school violence.”  The majority explained: “And finally, numerous, recent examples of school violence exist in which students have signaled potential violence through speech, writings, or actions, and then carried out violence against school communities, after school administrators and parents failed to properly identify warning signs.” 
Barksdale’s opinion found that Bell’s rap recording was substantially disruptive under the Supreme Court’s student-speech case, Tinker v. Des Moines Independent Community School District, and, thus, did not directly address the true-threat analysis. But, given her opinion below, it was obviously that Judge Barksdale viewed the recording as a true threat.
Several justices wrote separate dissenting opinions. Judge James L. Dennis, who had authored the majority opinion at the three-judge panel level, wrote the most comprehensive dissent. He termed Bell a “student whistleblower”  , adding that four female students had filed affidavits detailing incidents of sexual harassment against the coaches that Bell mentioned in his song.  He also that the majority’s decision turned the First Amendment on its head, as the First Amendment was designed to allow people to criticize school officials, but in this case school officials silenced Bell’s critical speech. 
The three cases of the stolen letter, the two-year-old drawing, and the whistle-blowing rapper are by no means the only cases in which students have been punished for violent themed expression. These cases run the gamut from Halloween essays, online hit lists, rap songs, creative writing essays, and a variety of other forms of expression.  What is important is that school officials pay attention and use nuance rather than assume that all violent-themed student speech constitutes a substantial disruption or rises to the level of a true threat.
 Brandon Griggs and Christina Walker. “In the year since Parkland, there’s been a school shooting, on average, every 12 days,” CNN.com, Feb. 14, 2019.
 David L. Hudson, Jr. Let the Students Speak!: A History of the Fight for Free Expression in American Schools (Beacon Press, 2011), at p. 121-22.
 Id. at 122.
 393 U.S. 503 (1969).
 David L. Hudson, Jr. “True Threats,” May 12, 2008, https://www.freedomforuminstitute.org/first-amendment-center/topics/freedom-of-speech-2/personal-public-expression-overview/true-threats/
 Doe v. Pulaski County Special Sch. Dist., 306 F.3d 616, 619 (8 th Cir. 2002).
 Id. at 619.
 Id. at 620.
 Id. at 623.
 Id. at 624.
 Id. at 626.
 Id. at 628 (J. Heaney, dissenting).
 Id. at 631.
 Id. at 636 (J. McMillan, dissenting).
 Porter v. Ascension Parish Sch. Bd., 393 F.3d 608, 611 (5 th Cir. 2004).
 Id. at 611.
 Id. at 611-12.
 Id. at 612.
 Id. at 617.
 Id. at 620.
 Id. at 620.
 Quoted in Hudson, Let the Students Speak, at p. 137.
 David L. Hudson, Jr. “Adam Porter’s Case: Epitome of Overreaction in Colubmine Age,” Freedom Forum Institute, April 1, 2005.
 Bell v. Itawamba Cnty. Sch. Bd., 799 F.3d 379, 384 (5th Cir. 2015).
 Id. at 384.
 Id. at 385.
 Id. at 385.
 Id. at 386.
 Id. at 387.
 Id. at 388, quoting Bell v. Itawamba Sch. Bd., 859 F.Supp.2d 834, 840 (N.D. Miss. 2014).
 Id. at 388-89, citing Bell v. Itawamba Cnty. Sch. Bd., 774 F.3d 280 (5th Cir. 2014).
 Bell, 774 F.3d 280, 307 (J. Barksdale, dissenting).
 Id. at 315.
 Bell, 799 F.3d at 393.
 Id. at 393.
 Id. at 399.
 Bell , 799 F.3d at 403 (J. Dennis, dissenting).
 Bel l, 799 F.3d at 409, n.3.
 Bell , 799 F.3d at 412 (J. Dennis, dissenting).
 David L. Hudson, Jr. Student Speech in the Age of Columbine: Securing Safety and Protecting First Amendment Rights . Freedom Forum, 2005.