In re Interest of J.J.M.

• Decision Date: 21 December 2021
• Docket Number: No. 23 MAP 2020,23 MAP 2020
• Citation: In re Interest of J.J.M., 265 A.3d 246 (Pa. 2021)
• Parties: In the INTEREST OF: J.J.M., a Minor Appeal of: J.J.M., a Minor
• Court: Pennsylvania Supreme Court

265 A.3d 246

In the INTEREST OF: J.J.M., a Minor

Appeal of: J.J.M., a Minor

No. 23 MAP 2020

Supreme Court of Pennsylvania.

Argued: October 20, 2020

Decided: December 21, 2021

Sara E. Jacobson, Esq., for ACLU of Pennsylvania, Amicus Curiae.

Christine Frances Murphy, Esq., Lehigh County District Attorney's Office, Michael F. J. Piecuch, Esq., Snyder County District Attorney's Office, for Pennsylvania District Attorneys Association, Amicus Curiae.

Sara Jeannette Rose, Esq., ACLU of Pennsylvania, for ACLU of Pennsylvania, Amicus Curiae.

Robert Michael Buttner, Esq., Scranton, Demetrius William Fannick, Esq., Steven M. Greenwald, Esq., Wilkes-Barre, Luzerne County Public Defender's Office, for J.J.M., Appellant.

Stefanie Joy Salavantis, Esq., Gerry Scott IV, Esq., Luzerne County District Attorney's Office, for Commonwealth of Pennsylvania, Appellee.

BAER, C.J., SAYLOR, TODD, DONOHUE, DOUGHERTY, WECHT, MUNDY, JJ.

Justice Dougherty delivers the opinion of the Court with respect to Parts I, II, III, and IV(a) and announces the judgment of the Court with respect to all other issues.

OPINION

JUSTICE DOUGHERTY¹

We recently observed it "remains an open question" whether the First Amendment to the United States Constitution permits States to criminalize threats made in reckless disregard of the risk of causing fear.Commonwealth v. Knox , 647 Pa. 593, 190 A.3d 1146, 1157 n.10(2018).We now resolve that unsettled issue.Like the court below, we hold the First Amendment tolerates a conviction — in this case, under Pennsylvania's terroristic threats statute, 18 Pa.C.S. § 2706(a)(3) — for making a threatening statement even where the speaker did not intend to cause terror.However, upon our de novo review of the record, we are constrained to conclude the statements underlying appellant J.J.M.’s adjudication, though perhaps concerning to some because they were uttered in a school hallway only days after a deadly high school shooting, did not cross the constitutional threshold from protected speech to an unprotected true threat.We therefore vacate appellant's adjudication of delinquency.

I.Background

Some time between mid-January and the early part of February 2018, K.S., a 14-year-old student at West Side Career and Technology Center ("WSCTS"), a vocational high school, heard appellant, a 15-year-old student at the school, say he"doesn't think people deserve to live and everyone should just die."N.T. Hearing, 4/26/2018at 22.K.S., who described appellant as a loner who likes to wear black attire, did not report the statement to school officials at that time.It was not until weeks later when some "friends approached [her]" with information pertaining to a second statement by appellant that K.S. began to worry about the comments.Id . at 25.

Appellant's second statement was made on February 20, 2018, six days after 17 high school students at Marjory StonemanDouglas High School in Parkland, Florida were fatally shot.M.W., a 15-year-old classmate of appellant's, overheard appellant say "[h]e wanted to beat the record of 19."Id . at 14.² M.W. heard this statement from only two or three feet away while in the hallway between classes.Although appellant's remark was not directed at her, M.W. was unsure whether he was "talking to someone [else], or [if]he just said it" aloud.Id .Still, M.W. found the comment concerning enough to report it to school administrators before the day's end.³Meanwhile, K.S., after learning of appellant's "beat the record" statement secondhand, followed suit and reported what she had heard.Seeid . at 25("[A]fter I heard other statements [appellant]’s made, I then spoke up about it because it was a serious problem. ...I was nervous.I was scared.").Following these reports, appellant was expelled from WSCTS.

The Commonwealth later charged appellant with terroristic threats pursuant to Section 2706(a)(1) and (3) of the Crimes Code,⁴ and disorderly conduct.Following a hearing before a juvenile master, at which K.S. and M.W. testified as recounted above, appellant was adjudicated delinquent of one charge of terroristic threats under Section 2706(a)(3); the remaining charges were not substantiated.In support of its ruling, the juvenile master stated:

[Appellant] did commit the offense of [terroristic threats under Section 2706(a)(3),] having communicated indirectly, and having caused terror and serious public inconvenience with reckless disregard of the risk of causing such terror or inconvenience by way of committing the following acts: He spoke in the hallway at school, in a manner that was heard by others — within days of a mass school shooting — stating that he wanted to beat the record of 19, and by further stating that he doesn't think people deserve to live, and everyone should just die.

Such statements caused terror in the witnesses, and furthermore caused serious public inconvenience because the witnesses missed their classes or school work in order to seek help and guidance, and report the matter.The matter also required the convention of a school hearing to determine what actions needed to be taken to both protect the school students, and prevent such future incidences.

Juvenile Master's Findings of Fact, 4/26/2018at 1.As part of its disposition, the juvenile master placed appellant on probation, ordered him to comply with any mental health recommendations, and prohibited him from having contact with weapons.

Appellant filed an appeal, and the matter proceeded to a de novo hearing before the Luzerne County Court of Common Pleas.By the parties’ agreement, the trial court received the audio testimony and transcript from the prior proceeding in lieu of recalling the witnesses.Based on that evidence, on May 14, 2018, the trial court upheld appellant's adjudication of delinquency under Section 2706(a)(3).Appellant then filed a post-dispositional motion arguing, inter alia , that the subsection under which he was adjudicated violates the First Amendment.The trial court denied the motion on July 16, 2018.Regarding appellant's free speech claim, the trial court briefly remarked appellant's statements "were threats that invaded [K.S.’s and M.W.’s] sense of personal security and caused psychological concern[,]"Trial Court Opinion, 7/16/2018at 9, but it did not directly confront the First Amendment issue.

Appellant next appealed to the Superior Court, arguing, first, that the evidence was insufficient to sustain his adjudication because his statements did not constitute threats, and because he did not possess the necessary mens rea for conviction under Section 2706(a)(3).He also continued to claim Section 2706(a)(3) is unconstitutional in that it violates the right to free speech under the First Amendment.As well, appellant alleged Section 2706(a)(3) is unconstitutionally vague on its face and as applied, such that it violates his due process rights under the Fifth and Fourteenth Amendments to the United States Constitution.

A unanimous three-judge panel of the Superior Court affirmed appellant's adjudication of delinquency in a published opinion.In the Interest of: J.J.M. , 219 A.3d 174(Pa. Super.2019).The court first rejected appellant's challenge to the sufficiency of the evidence.Appellant's argument in support of this claim was twofold: (1)he asserted his statements did not amount to a true threat; and (2)he maintained the evidence did not support a finding of a mens rea beyond mere negligence, because there was no evidence establishing he knew that anyone who overheard his statement would associate it with previous school shootings.The court was not convinced.Pointing to the recent proliferation of school shootings in America and, in particular, the high school shooting in Parkland less than a week earlier, the court reasoned that "from this context and the circumstances surrounding [a]ppellant's statement, the words expressed an intent to cause harm and an indication of impending menace."Id . at 181.⁵For similar reasons, the court did "not hesitate to conclude [a]ppellant consciously disregarded a substantial and unjustifiable risk that his threat would terrorize his fellow students."Id ., citing18 Pa.C.S. § 302(a)(3)(defining recklessness).

Turning to appellant's claim Section 2706(a)(3) violates his First Amendment right to free speech, the Superior Court began by acknowledging that children do not " ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.’ "Id . at 182, quotingTinker v. Des Moines Indep. Cmty. Sch. Dist. , 393 U.S. 503, 506, 89 S.Ct. 733, 21 L.Ed.2d 731(1969).Yet, it further observed the United States Supreme Court has "repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools[,]" and that "[p]art of a school's awesome charge is to balance the exercise of rights that enrich learning with order and a safe and productive school environment."Id . (citations and quotations omitted).

The Superior Court also recognized that neither this Court, nor the High Court, has specifically decided "whether threats communicated not with the subjective intent to terrorize, but instead with reckless disregard for the risk of causing terror in the listener, [are protected] under the First Amendment."Id . at 183.Nevertheless, citing our decision in Knox , supra , the Superior Court opined we would likely require some inquiry into the speaker's mental state and "would not apply a wholly objective test focused only upon the effects a threat had upon the recipients as some of the federal circuits employ."Id . at 184.Ultimately, the court resolved that, "in the context of the special circumstances attendant with threats made in a school setting, a threat made with the mental state of recklessness, i.e. , with conscious disregard of the risk of causing terror, constitutes a true...