In the wake of several high profile school shootings at the end of the 1990s, school administrators struggled with the question of how to predict and prevent future attacks. They were not alone. Case law reveals that judges, too, have been moved by these events, and they are trying to do their part to curb school violence, often by punishing threats of violence made by student speakers. The Supreme Court has held that “true threats” are not protected by the First Amendment based on three justifications: preventing fear, preventing the disruption that follows from that fear, and diminishing the likelihood that the threatened violence will occur. In this Note, the author challenges the application of the true threat doctrine to student threats on three grounds. First, the doctrine is excessively vague and does not provide judges with sufficient standards, which leads to disparate enforcement across cases. Second, recent evidence suggests that punishing threats as a proxy for punishing or preventing future violence—which is explicitly endorsed by the Court’s true threat jurisprudence—is ineffective in the context of student speech. Third, the author identifies a serious policy concern implicated by any punitive response to student threats. To address these shortcomings, Stanner concludes with a series of recommendations for different courts that are designed to improve both the formulation and the implementation of the true threat doctrine.
LawReview
