State v. Douglas D.

243 Wis.2d 204

2001 WI 47

626 N.W.2d 725

IN the INTEREST OF DOUGLAS D., a person Under the Age of 17:

STATE of Wisconsin, Petitioner-Respondent, v. DOUGLAS D., Respondent-Appellant-Petitioner.¹

No. 99-1767-FT.

Supreme Court of Wisconsin.

Oral argument October 3, 2000.

Decided May 16, 2001.

For the respondent-appellant-petitioner there were briefs and oral argument by Eileen A. Hirsch, assistant state public defender.

For the petitioner-respondent the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the briefs was James E. Doyle, attorney general.

An amicus curiae brief was filed by Carol W. Medaris and Wisconsin Council on Children & Families, Madison, Adam Culbreath and National Center for Youth Law, Oakland, California, and Laval S. Miller-Wilson and Juvenile Law Center, Philadelphia, Pennsylvania, on behalf of the Juvenile Law Center and National Center for Youth Law.

An amicus curiae brief was filed by Jon G. Furlow, Christine Cooney Mansour and Michael Best & Friedrich LLP, Madison, on behalf of the American Civil Liberties Union of Wisconsin, Inc.

¶ 1. JON P. WILCOX, J.

This is a review of a court of appeals decision, In the Interest of Douglas D.: State v. Douglas D., No. 99-1767-FT, unpublished slip op. (Wis. Ct. App. Dec. 14, 1999), which affirmed a judgment by the Circuit Court for Oconto County, Judge Richard D. Delforge. The circuit court found that the content of an eighth-grade creative writing assignment authored by the petitioner, Douglas D. (Douglas), a minor, constituted a threat against Douglas's English teacher. Based on this finding, the court adjudicated Douglas delinquent for violating the disorderly conduct statute, Wis. Stat. § 947.01 (1997-98).²

¶ 2. Douglas now petitions this court to reverse the court of appeals decision, which affirmed his delinquency adjudication. In doing so, he presents two issues for review: (1) Can the disorderly conduct statute be construed to criminalize purely written speech, even if the speech does not cause a disturbance? (2) If so, is his speech protected by the First Amendment,³ thus barring the State from prosecuting him for disorderly conduct?

¶ 3. We conclude that purely written speech, even written speech that fails to cause an actual disturbance, can constitute disorderly conduct as defined by § 947.01; however, because Douglas's speech falls within the protection of the First Amendment, the State nonetheless is barred from prosecuting Douglas for disorderly conduct. Accordingly, we reverse the decision of the court of appeals.

I

¶ 4. This case arises from events that occurred while Douglas was an eighth-grade student at an Oconto County public school. On October 7, 1998, Douglas's English teacher, who commonly referred to herself in class as "Mrs. C," gave Douglas a creative writing assignment to complete during class. Mrs. C instructed Douglas to begin writing a story, which later would be passed on to a series of three other students, each adding to Douglas's work. But other than entitling the assignment "Top Secret," Mrs. C provided no limit regarding the topic on which Douglas was to write.

¶ 5. Rather than beginning his assignment, Douglas visited with some friends and disrupted the class. Therefore, Mrs. C sent Douglas into the hall to complete his assignment.

¶ 6. At the end of the period, Douglas returned to class and handed his work to Mrs. C. A few minutes later, Mrs. C read what Douglas had written:

There one lived an old ugly woman her name was Mrs. C that stood for crab. She was a mean old woman that would beat children sencless. I guess that's why she became a teacher.

Well one day she kick a student out of her class & he din't like it. That student was named Dick.

The next morning Dick came to class & in his coat he conseled a machedy. When the teacher told him to shut up he whiped it out & cut her head off.

When the sub came 2 days later she needed a paperclipp so she opened the droor. Ahh she screamed as she found Mrs. C.'s head in the droor.

¶ 7. Mrs. C believed this story to be a threat that if she disciplined Douglas again, Douglas intended to harm her. As a result, she became frightened and, after dismissing Douglas's class as scheduled, notified the school assistant principal of the incident.

¶ 8. Upon learning of the incident and observing that Mrs. C was very upset, the assistant principal called Douglas into his office. Douglas apologized for the story, stating that he did not intend it to be interpreted as a threat. The assistant principal then imposed on Douglas an in-school suspension.

¶ 9. After Douglas served his suspension, the school readmitted him to class—albeit with a different English teacher. However, on November 19, 1998, the police filed a delinquency petition against Douglas, alleging that by submitting a "death threat" to Mrs. C, Douglas had engaged in "abusive conduct under circumstances in which the conduct tends to cause a disturbance," thus violating the disorderly conduct statute, § 947.01.

¶ 10. On March 11, 1999, the circuit court held a fact-finding hearing regarding the delinquency petition. After hearing testimony from Douglas, Mrs. C, the assistant principal, and an employee of the Oconto County Department of Human Services, the court explained that pursuant to § 947.01, the petitioner has the burden to prove two elements: (1) the juvenile engaged in abusive "conduct," which can include "either physical acts or language"; and (2) the juvenile's conduct occurred under circumstances that tend to cause a disturbance. Applying this standard to the facts, the court first found that Douglas had communicated a "direct threat" to Mrs. C. This threat, the court concluded, constituted abusive conduct unprotected by the First Amendment. Second, the court found that Douglas's conduct provoked a disturbance: it caused Mrs. C to become upset. Based on these findings, the court ruled that Douglas was guilty of disorderly conduct. Accordingly, it ordered that he be placed on formal supervision for one year.

¶ 11. Douglas raised two arguments on appeal. First, he argued that the delinquency adjudication based on the content of his school creative writing assignment violates his First Amendment right to free speech. Second, he contended that even if such an adjudication does not violate the First Amendment, § 947.01 criminalizes "conduct" and, therefore, cannot be construed to criminalize purely written speech. For these reasons, Douglas requested that the court of appeals reverse his adjudication.

¶ 12. The court of appeals rejected Douglas's arguments and affirmed the circuit court ruling. Douglas D., unpublished slip op. Addressing Douglas's first argument, the court explained that "true threats" are among the categories of speech that receive limited or no constitutional protection. Id. at 4-5. Further, the court discerned "no material difference in connotation between the phrase[s] `true threat' and `direct threat.'" Id. at 5 n.5. Thus, deferring to the circuit court's finding that Douglas's story constituted a "direct threat," the court of appeals ruled that the First Amendment does not protect Douglas's speech. Id. at 6. Regarding Douglas's second argument, the court held that the term "conduct," as used in § 947.01, applies to "both acts and (unprotected) words." Id. Hence, the court held that the State properly prosecuted Douglas pursuant to § 947.01 for the content of his story. Id. at 7.

¶ 13. Douglas subsequently filed a petition to this court for review of the court of appeals decision. On February 22, 2000, this court granted review.

II

[1]

¶ 14. We first review whether the disorderly conduct statute, § 947.01, can be construed to criminalize purely written speech, even if the speech does not cause a disturbance. This presents an issue of statutory interpretation, which this court reviews de novo. See Teague v. Bad River Band of the Lake Superior Tribe of Chippewa Indians, 2000 WI 79, ¶ 17, 236 Wis. 2d 384, 612 N.W.2d 709.

¶ 15. Section 947.01 provides: "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor." To prosecute a defendant for a violation of this statute, the State has the burden to prove two elements. First, it must prove that the defendant engaged in violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar disorderly conduct. See State v. Zwicker, 41 Wis. 2d 497, 514, 164 N.W.2d 512 (1969). Second, it must prove that the defendant's conduct occurred under circumstances where such conduct tends to cause or provoke a disturbance. Id. Under both elements, "[i]t is the combination of conduct and circumstances that is crucial in applying the statute to a particular situation." State v. Maker, 48 Wis. 2d 612, 616, 180 N.W.2d 707 (1970).

A

¶ 16. Douglas first argues that "conduct," as used in § 947.01, does not include speech unless such speech is intertwined with physical action. In support of his argument, Douglas cites R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), and Zwicker, 41 Wis. 2d 497, for the general rule that the government cannot regulate the content of speech. He further explains that Wisconsin courts have adhered to this rule. On one hand, Wisconsin courts consistently have struck down legislation that criminalizes speech protected by the First Amendment.⁴ On the other hand, there is no published Wisconsin opinion in which a court has upheld a conviction under § 947.01 for speech alone. In light of this precedent, Douglas argues, the State has recognized that it constitutionally is barred from convicting a person based solely on the content of his or her speech.

¶ 17. We reject this argument. To be sure, "[t]he First Amendment generally prevents government from proscribing...