updated 5/28/2004 8:11:56 AM ET 2004-05-28T12:11:56

The California Supreme Court is deciding whether to throw out the conviction of a 15-year-old boy who served 100 days in juvenile hall for writing a poem that included a threat to kill his fellow students.

The case weighs free speech rights against the government’s responsibility to provide safety in schools after campus shootings nationwide.

Attorneys for the San Jose boy, identified as George T. in court records, described the poem Thursday as youthful artistic expression. One passage says: “For I can be the next kid to bring guns to kill students at school.” Another reads: “For I am Dark, Destructive & Dangerous.”

“This is a classic case of a person expressing himself and trying to communicate his feelings through a poem,” attorney Michael Kresser told the court, which gave no clear indication what it would do. A ruling is expected within 90 days.

Poetic verses protected?
Chief Justice Ronald George and other justices wondered aloud whether George T.’s statements were protected speech because they were presented as verses in a poem.

Deputy Attorney General Jeffrey Laurence replied: “The First Amendment doesn’t protect against criminal conduct.”

The law in question, usually invoked in domestic violence cases, carries a maximum one-year term for criminal threats that convey an “immediate prospect of execution.” The lower courts found that this threat met that definition, a decision the boy’s attorney argued was unfounded.

Civil rights and free-speech groups were closely following the dispute.

“At the heart of this case is the First Amendment right of any young person to explore the whole range of his emotions and experiences, and write about disturbing subject matter without fear that he will be punished should his work be misinterpreted,” said Ann Brick, an American Civil Liberties Union attorney.

A student frightened by the poem notified a teacher, who called police. The boy, now 18, was arrested the next day and expelled from Santa Teresa High in San Jose.

Concerns raised by judges
Justice Marvin Baxter was unsure whether the justices could second-guess the lower courts. “How can we conclude that the threat was unequivocal?”

Justice Joyce Kennard suggested there was no immediacy to the threat and therefore no crime was committed. “The poem doesn’t say ’I will be the next kid to bring guns to school.’ It says, ’I can.”’

Justice Janice Rogers Brown said the First Amendment doesn’t shield works of art with unlawful intentions. She asked whether a bank robber could be immune from charges for giving a bank teller this note:

“Roses are red. Violets are blue. Give me the money or I’ll shoot you.”

Speaking for the state, Laurence said the boy’s poem cannot be analyzed in a vacuum. The boy passed the poem to a girl in his English class 11 days after a student killed two classmates and wounded 13 others at Santana High School in Santee on March 5, 2001.

“You have to look at it all in context,” Laurence said.

Kresser said after the hourlong hearing that the boy’s prosecution was an exaggerated response to Santee as well as the 1999 Columbine High student shooting that left 15 dead, and other student attacks.

Outside of court, Laurence said the case might have been harder to prove if the poem was written in a poetry class, or the events at Santee had not just occurred.

Related cases
In one of California’s first attempts to prosecute a schoolchild under the criminal threats statute in 2002, a Sacramento-based appeals court overturned a boy’s conviction for drawing a picture of a police officer being shot in the head. That boy was previously arrested by the officer on drug-related charges, and he submitted the work to his art class. An appeals court ultimately reversed that conviction, saying there was no immediate threat of harm.

Prosecutions of students under the statute are rare, but continue: on Wednesday, a 14-year-old boy was arrested at a middle school in the San Francisco suburb of Walnut Creek after posting a cartoon on the Internet with a caption that referred to a teacher, reading: “Maybe I should kill him and urinate on his remains.”

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