Interest of A.S., a minor

• Decision Date: 16 May 2001
• Citation: Interest of A.S., a minor, 626 N.W.2d 712 (Wis. 2001)
• Parties: (Wis. 2001) This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. In the Interest of A. S., a person Under the Age of 17: State of Wisconsin, Petitioner-Appellant, v. A. S., Respondent-Respondent-Petitioner. Case No.: 99-2317
• Court: Wisconsin Supreme Court

626 N.W.2d 712 (Wis. 2001)

This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.

In the Interest of A. S., a person Under the Age of 17:

State of Wisconsin, Petitioner-Appellant, v.A. S., Respondent-Respondent-Petitioner.

Case No.: 99-2317

SUPREME COURT OF WISCONSIN

May 16, 2001

October 3, 2000

REVIEW OF A DECISION OF THE COURT OF APPEALS

JUSTICES:

Concurred: ABRAHAMSON, C.J., concurs (opinion filed).

BABLITCH, J., concurs (opinionfiled).

ATTORNEYS:

For the respondent-respondent-petitioner there were briefs by Stephen P. Hurley, Marcus J. Berghahn and Hurley, Burish & Milliken, S.C., Madison, and oral argument by Marcus J. Berghahn.

For the petitioner-appellant the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.REVIEW of a decision of the Court of Appeals.Affirmed and cause remanded to the circuit court.

¶1.WILLIAM A. BABLITCH, J.

A.S., a juvenile, seeks review of two determinations by the court of appeals: (1) that the facts as pleaded in a delinquency petition alleging disorderly conduct were sufficient to constitute probable cause, and (2) that A.S.'s statements were not protected speech under the First Amendment.The disorderly conduct charge was based on statements made by A.S. threatening violence toward a number of named individuals.A.S. argues that (1) speech alone cannot constitute disorderly conduct; (2) his speech is protected under the First Amendment; and (3) under the facts of this case, the elements of disorderly conduct are not met.We conclude that speech alone in certain contexts can constitute disorderly conduct; that in context A.S.'s speech is not protected by the First Amendment; and that the two elements of disorderly conduct are met here.Accordingly, we affirm.

I

¶2.On April 29, 1999, the State of Wisconsin(State) filed a delinquency petition against A.S., charging him with two counts of disorderly conduct.The circuit court dismissed the second count of the petition on June 4, 1999, after concluding that the petition lacked sufficient facts to support a finding of disorderly conduct on this count.The State does not contest this dismissal.Thus, our review is limited to the first count.

¶3.The petition alleges the following facts in support of the first count.On April 27, 1999, the DeForest Police Department received a report from a juvenile girl, A.H., about several threatening comments that A.S. made on April 26, 1999, at a local youth center.At that time, A.S. was 13 years old.The petition states in relevant part as follows:

A.H. reported that while [she, A.S. and another girl, M.L.] were playing a computer game, A.S. made several statements that he was going to kill everyone at the middle school, that this would occur over a 10 minute period of time, and while discussing the Colorado school shootings, A.S. stated that he was going to "do something similar."A.H. further reported that A.S. stated that he was going to "make people suffer" and that he wished to kill everyone except for [A.H.], M.L., and some other buddies.A.H. further reported that A.S. stated that he wanted to "hang" DeForest Police Officer O'Neill as well as beat her at the knees.A.H. reported that A.S. stated that he would have Assistant Principal McHugh lie on the ground face down with his hands behind his back, that he would tell McHugh to count to 10, and prior to reaching 10, he would then shoot McHugh.A.H. reported that A.S. also stated that he wanted to shoot Mr. Clifford, the social studies teacher.A.H. further reported that A.S. also informed her that he would "rape" M.P., then let her go, and that A.S. appeared to be excited about this rape.(Names of juveniles replaced with initials.)

According to the petition, A.H. believed that A.S. would possibly commit the rape.A.H. noted that A.S. was not laughing when he made these statements and that he spoke in a "very matter-of-fact manner."The reference to school shootings in Colorado in the petition pertains to the shooting deaths of 15 individuals at Columbine High School in Littleton, Colorado on April 20, 1999.Two students who attended the high school caused these deaths.This incident received extensive national media attention.

¶4.The petition also states that the police interviewed two other juveniles, M.L. and J.G., about A.S.'s statements at the youth center.M.L. confirmed the allegations made by A.H. concerning A.S.'s statements at the youth center.M.L. also alleged that she told A.S. that his statements scared her and that she had to ask A.S. several times to stop making the statements before he stopped.J.G. reported that he heard A.S. talking to two girls at the youth center about bringing guns to school with him.

¶5.Finally, the petition states that the police interviewed A.S. about his statements and that he admitted making them.The petition provides in relevant part as follows:

A.S. admitted that he stated, "I'm going to take over the school like in Colorado."A.S. admitted that he also made statements about shooting [the assistant principal] as he knelt and counted to 10. A.S admitted that he also stated he would hang Officer O'Neill by her wrists, break her legs and shoot her.A.S. further admitted that he also made statements that he would like to rape M.P. (Names of juveniles replaced with initials.)

Based on these facts, the delinquency petition alleges that A.S. "engage[d] in abusive and otherwise disorderly conduct under circumstances in which such conduct tended to cause or provoke a disturbance; contrary to Section 947.01 of the Wisconsin Statutes. . . ."

¶6. A.S. moved to dismiss the petition.The circuit court granted A.S.'s motion.The court concluded that A.S.'s statements needed "some additional basis" before they would constitute disorderly conduct.Although the court believed A.S.'s comments were "repulsive and shocking," it regarded the statements as "an extreme level of adolescent 'trash talking,'" which produced no immediate disorder.The court noted that the failure of the listener to report A.S.'s conduct until the following day showed a lack of any immediate disorder and that such circumstances were "simply not of the type (charged, tense, volatile, disruptive, interfering, etc.) so as to allow probable cause to be found that these actions were 'otherwise disorderly.'"

¶7.The court of appeals, in a one-judge unpublished decision, reversed the order of dismissal.The court first concluded that A.S.'s comments were not protected speech under the First Amendment.It opined that A.S. could be prosecuted because the government has an interest in protecting individuals from such threats of violence.The court then found that the allegations in the petition could support a conclusion that A.S.'s statements constituted disorderly conduct.As a result, based on the totality of the circumstances and the specific nature of A.S.'s statements, the court concluded that further proceedings on the disorderly conduct count were justified.A.S. petitioned this court for review.

¶8.The following three issues are presented for review: whether the disorderly conduct statute can be applied solely to speech; whether A.S.'s speech is protected under the First Amendment; and whether the elements of disorderly conduct are met in this case.We address each issue in turn.

II

¶9.The disorderly conduct statute, Wis. Stat. §947.01(1999-2000),¹states as follows: "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."The statute contains two elements: (1) conduct of the type enumerated in the statute or similar thereto, and (2) the conduct must be engaged in under circumstances which tended to cause or provoke a disturbance.State v. Zwicker, 41 Wis.2d 497, 515, 164 N.W.2d 512(1969).

¶10.The delinquency petition in this case reveals that the disorderly conduct charge against A.S. is based solely on his statements to other juveniles at the youth center.A.S. argues that it is impermissible for the State to proceed in this manner because the disorderly conduct statute cannot be applied solely to his speech.Instead, A.S. contends that, consistent with prior cases that have applied the statute, the statute can only be applied to speech when the speech is accompanied by conduct.A.S. argues that, by applying the statute solely to his speech, the State has effectively transformed the disorderly conduct statute into a content-based regulation, and as a result, an examination of the constitutionality of the statute must take place in light of this classification.In particular, A.S. asserts that the application of the statute in this manner requires us to ensure that the statute is narrowly drawn to proscribe only speech outside the protections of the First Amendment.

¶11.In essence, this challenge asks whether the disorderly conduct statute can be applied to regulate speech when that speech is unaccompanied by any physical conduct and is not unreasonably loud.We acknowledge that no Wisconsin court has ever examined whether the statute can be permissibly applied in this manner.This question, one of the nature and scope of the disorderly conduct statute, presents a question of law that we review de novo.

¶12.We examined the regulatory scope of the disorderly conduct statute in Zwicker, 41 Wis.2d 497.In that case, we particularly examined whether the statute was vague and overly broad and whether its application could be extended into the area of protected speech.Id. at 507-11.We concluded that the statute was sufficiently designed to overcome an attack for vagueness and that it was not so broad that it could be applied to conduct...