On July 30, 2019, the Connecticut Supreme Court decided a First Amendment free speech case with significant implications for both local and regional boards of education and institutions of higher education.  In Haughwout v. Tordenti, 332 Conn. 559 (2019), the Court heard an appeal of a Southern Connecticut State University student who had been expelled for violating several provisions of the university’s code of conduct related to threatening behavior, harassment, and disorderly conduct.  The university expelled the student after investigation reports that he had made repeated comments and gestures interpreted by some peers as threats of school violence.  Specifically, it was reported that the student had made frequent “shooting” gestures and “firing” noises; wondered aloud how much ammunition he would need to shoot others at the university; referenced his ownership of ammunition; showed pictures of his firearms to other students; “boasted” about bringing a firearm to the university; referenced “shooting up the school” on multiple occasions; suggested that someone should “shoot up the school;” identified a particular student as a “target;” and referenced recent shootings at other universities.

The student opposed his expulsion on various grounds, at times arguing that his statements and gestures were ambiguous or made in jest, and that he had been targeted for complaints by his peers due to his “personality.”  The student also argued that his statements were related to matters of public concern, such as gun ownership rights, and were thus free speech protected by the First Amendment.

The Court disagreed with the student, however, and, in a unanimous decision, upheld the lower court’s decision that his statements and gestures constituted “true threats” not protected by the First Amendment.  The Court noted that while the importance of the free speech normally requires government actions limiting speech to be “strictly scrutinized,” some speech, including true threats, is not protected by the First Amendment.  True threats are “statements through which the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”  An individual does not, however, need to intend to actually carry out a threat.  Rather, the principle that true threats are not protected speech is meant to protect individuals from fear of violence and the disruption that such fear causes, as well as the possibility that violence might occur.  True threats, the Court noted, do not relate to important public policy issues, and thus lack communicative value and are outweighed by social interests in order and morality.

Importantly, while true threats are not speech protected by the First Amendment, the Court held that government is nonetheless required to present evidence demonstrating that a “reasonable listener familiar with the entire factual context of the defendant’s statements, would be ‘highly likely’ to interpret them as communicating a genuine threat of violence, rather than protected expression, however offensive or repugnant.” Stated differently, the test for whether speech constitutes a true threat is whether a “reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm or assault.”  The Court emphasized the importance of interpreting an individual’s statements based on the “totality of the circumstances,” including surrounding events and the reactions of listeners.  The Court further noted that a listener’s concern or fear need not be dramatic or immediate, and that even “veiled statements” can amount to true threats.

The Court found that the student’s statements and gestures, when interpreted in context, were reasonably understood as true threats of school violence.  After cataloging the student’s specific statements and gestures, the Court noted that, while most of his individual actions were not explicit threats, some of his peers had been sufficiently concerned so as to contact the university police.  The Court further determined that the student had presented insufficient evidence that his statements and gestures were meant in jest or were otherwise related to his position on gun rights.  Finally, and quite significantly, the Court determined that recent history of school violence across the United States informed the reasonableness of the university’s determination that the student should be expelled for speech and gesture amounting to true threats of violence.

Local and regional boards of education and institutions of higher education should keep the Haughwout decision in mind when conducting investigations of actual or perceived threats of school violence.  While free speech is of vital importance and is generally protected as such by the First Amendment, not all speech is of the same value or afforded the same protections.  True threats of school violence must be thoroughly investigated and, if appropriate, disciplinary proceedings should be initiated in order to maintain safety and order.  At the same time, the burden rests with the school to prove, usually by a preponderance of the evidence, that certain speech, such as speech amounting to true threats of school violence, is violative of school codes of conduct and not protected by the First Amendment.  The context in which such speech occurs, particularly in this regrettable age of escalating school violence, should always be of paramount concern.

The full text of the Haughwout decision is available via the following web link:

https://www.jud.ct.gov/external/supapp/Cases/AROcr/CR332/332CR33.pdf

Attorneys at Berchem Moses PC are available to consult boards of education regarding regular and special education matters, including First Amendment issues, in the State of Connecticut.  For further information, please contact Attorney Michelle Laubin at mlaubin@berchemmoses.com.