Terroristic Threats, 18 Pa.C.S. § 2706(a); “True Threat” not within Scope of First Amendment Protection

In the Interest of: J.J.M., 219 A.3d 174 (Pa. Super. 2019), allocatur granted Apr. 1, 2020, appeal docket 23 MAP 2020 

The Pennsylvania Supreme Court granted allocatur to determine, as a matter of first impression, whether, in the context of the special circumstances for threats made in a school setting, a threat made with reckless disregard for the risk of causing terror in the listener constitutes a “true threat” not entitled to First Amendment protection.

In February 2018, seventeen students were killed in a high school in Parkland, Florida. Six days later at West Side Career and Technology Center, a Luzerne County vocational high school, a student, M.W., informed school officials that she overheard another student, fifteen-year old J.J.M., make statements regarding “things in reference to death and such” and that he “wanted to break the record of 19,” allegedly in reference to school shooting deaths. Slip op. at 1. The Commonwealth charged J.J.M. with terroristic threats for his statements.

At the juvenile court adjudication hearing, M.W. testified that she overheard J.J.M. make the statements and that they were not said directly to her, but that “the statements concerned her because he’s shown signs of possibly being violent.” Slip op. at 1. Another student, K.S., testified that she previously heard J.J.M. make statements that “he doesn’t think people deserve to live and everyone should just die,” which she reported to school officials after learning about the statements that M.W. reported. Slip op. at 2. The juvenile hearing officer adjudicated J.J.M. delinquent of terroristic threats under 18 Pa.C.S. § 2706(a)(3), which provides: “A person commits the crime of terroristic threats if the person communicates, either directly or indirectly, a threat to: . . . cause serious public inconvenience, or cause terror or serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience.” J.J.M. challenged the recommendation, which the juvenile court upheld. J.J.M. appealed to Superior Court, arguing that the adjudication based upon the statute’s recklessness criterion violates his First Amendment free speech rights.

Superior Court affirmed the dispositional order concluding that J.J.M.’s speech constituted a true threat not within the protections of the First Amendment. The Superior Court reasoned:

The circumstances surrounding Appellant’s statement that he “wanted to beat the record of 19” evidenced that it was a threat, and that Appellant communicated it with a conscious disregard for the likelihood that his words would engender fear in those who heard them. Appellant’s subjective mental state was such that he acted with knowledge of its wrongness, for the events of the day in question, described above in detail, do not suggest that Appellant spoke to express an opinion, or that he was just jesting, or even that he was merely negligent in inducing fear in his schoolmates.

Rather, Appellant, who had cultivated an image among his classmates as one who relished the thought of death to human beings, must have known the effect that his words would have upon his fellow students in the wake of the Parkland shooting. Yet he chose to utter them anyway, in school, in the hallway between classes, for anyone and everyone around him to hear. We do not believe the First Amendment is or ever was intended to give Appellant a protected right to do so. Accord Elonis [v. United States], [135 S.Ct. 2001,] 2027-28 [(2015)] (Thomas, J. dissenting) (“We generally have not required a heightened mental state under the First Amendment for historically unprotected categories of speech. . . . I see no reason why we should give threats pride of place among unprotected speech.”).

Slip op. at 16-17.

The Supreme Court granted allocatur to review:

Whether the Superior Court misapprehended controlling facts, in a case of first impression in this Commonwealth, when concluding that the terroristic threats statute, requiring only a conviction based upon recklessness, did not violate [Petitioner’s] First Amendment right under the United States Constitution to free speech?

For more information, contact Kevin McKeon or Dennis Whitaker.