Doe v. Pulaski County Special School District: the Eighth Circuit Jeopardizes an Individual's Protected Speech by Adhering to the Incorrect Standard in Distinguishing a True Threat from Protected Speech

JurisdictionUnited States,Federal
CitationVol. 37
Publication year2022


Creighton Law Review

Vol. 37

"What is a threat must be distinguished from what is constitutionally protected speech."(fn1)


When the United States Supreme Court added true threats to the list of communications the First Amendment does not protect in Watts v. United States,(fn2) it failed to announce any type of test courts should use to distinguish true threats from protected speech.(fn3) Without any test, the federal courts of appeals have endeavored to determine for themselves when the government may constitutionally regulate an individual's speech to prevent threats of violence.(fn4) The circuits which have created a test unanimously agree courts should use an objective test to determine if a statement was a true threat or protected speech.(fn5) While the same circuits require the speaker's intent to communicate the threat be determined first, the circuits are split with regards to the viewpoint a court should consider the statement: that of a reasonable person acting as the speaker of the purported threat, or that of a reasonable person acting as the recipient of the purported threat.(fn6) Currently, the First, Third, Seventh, Ninth and Tenth Circuits follow a reasonable speaker standard in which the court asks if a reasonable speaker would have foreseen that the recipient would interpret the communication as a true threat.(fn7) Meanwhile, the Second, Fourth, Sixth, Eighth and Federal Circuits follow a reasonable recipient standard in which the court asks if a reasonable recipient would have viewed the communication as a serious expression of intent to harm.(fn8) Additionally, the Fifth and Eleventh Circuits currently utilize an objective viewpoint neutral approach.(fn9)

In Doe v. Pulaski County Special School District,(fn10) the United States Court of Appeals for the Eighth Circuit evaluated both the necessary intent to communicate the threat test and true threat test used to distinguish an actual threat from protected speech.(fn11) The mother of J.M., an eighth grade student, brought an action against the Pulaski County Special School District ("PCSSD") for allegedly infringing on his First Amendment rights when the school district expelled J.M. for a letter he had written at home to a fellow classmate, K.G.(fn12) The Eighth Circuit in an earlier panel decision of Doe v. Pulaski County Special School District,(fn13) declined to adhere to its own reasonable recipient standard and instead favorably cited the reasonable speaker standard used in the Ninth Circuit.(fn14) While the Eighth Circuit panel analyzed the factors of the reasonable recipient standard set out in an earlier Eighth Circuit decision, United States v. Dinwiddie,(fn15) it obfuscated the circuit's approach by instead quoting from Second, Sixth and Ninth Circuit opinions, where the courts followed a different approach.(fn16) The Eighth Circuit panel announced the test as "whether a reasonable person would foresee that J.M.'s letter would be interpreted by K.G. as a serious expression of an intent to harm her."(fn17) Subsequently, the Eighth Circuit, on rehearing en banc, reversed and held a true threat "is a statement that a reasonable recipient would have interpreted as a serious expression of an intent to harm or cause injury to another."(fn18) The Eighth Circuit concluded J.M. had intended to communicate the letter to K.G., and a reasonablerecipient would have viewed the letter as a serious expression of an intent to harm K.G.(fn19) Thus, the court viewed the letter as a true threat, not protected speech; therefore, the school board did not violate J.M.'s First Amendment rights when the school district expelled him.(fn20)

This Note will first examine the facts and holding of the en banc decision of Doe.(fn21) This Note will then review prior case law in which federal courts have interpreted the Supreme Court decision in Watts.(fn22) This Note will then analyze the holding in Doe.(fn23) Specifically, this Note will show the Eighth Circuit correctly analyzed the necessary intent required in a true threat analysis using an objective intent approach in light of the entire factual circumstances.(fn24) This Note will further show the Eighth Circuit correctly followed and stated the reasonable recipient standard utilized in previous Eighth Circuit true threat inquiry cases.(fn25) This Note will also demonstrate how the Eighth Circuit failed to consider the unique sensitivity issues associated with the reasonable recipient standard and how the test could infringe on a speaker's constitutional rights.(fn26) Furthermore, this Note will show the Eighth Circuit relied on the subjective reaction of the recipient in its objective test, thereby allowing a speaker's First Amendment rights to turn on the persuasive character of the complaining recipient.(fn27) This Note will show that had the Eighth Circuit used the reasonable speaker standard in place of the reasonable recipient standard, the court would have reached a different outcome.(fn28) This Note will conclude by demonstrating the Eighth Circuit unwisely decided to continue using the reasonable recipient standard and will suggest that the United States Supreme Court should remedy the current split in the federal circuits by adopting the reasonable speaker standard; the test which is best suited to protect an individual's First Amendment rights.(fn29)


In Doe v. Pulaski County Special School District,(fn30) J.M. and his family moved to Pulaski County, Arkansas, during J.M.'s seventh grade year.(fn31) J.M. enrolled at Northwood Junior High School in the Pulaski County Special School District ("PCSSD").(fn32) During the 1999-2000 school year, J.M. dated K.G., a fellow classmate and church member.(fn33) The relationship suffered numerous breakups during the school year.(fn34) At some point in the summer after the seventh grade year, K.G. broke up with J.M. for good because she was interested in another boy.(fn35)

Upset over the breakup, J.M. planned to write a rap song similar to songs by rap artists such as Eminem, Juvenile and Kid Rock.(fn36) J.M. ultimately wrote two separate compositions as letters, signingboth at their conclusion.(fn37) J.M. wrote both letters at J.M.'s home and J.M. did not deliver either letter to K.G.(fn38) The letters included violent, profane rants expressing J.M.'s wish to molest, rape and kill K.G.(fn39) Throughout the handwritten pages, J.M. used the f-word at least ninety times.(fn40) The letter contained four threats to kill K.G. and three threats to rape and sodomize K.G.(fn41)

Approximately one month prior to the beginning of the 2000-2001 school year, J.M.'s best friend, D.M., found one of the letters while in J.M.'s bedroom.(fn42) At first, J.M. snatched the letter from D.M., but later gave the letter back to D.M., allowing D.M. to read it.(fn43) However, J.M. refused to give D.M. a copy of the letter when D.M. requested one.(fn44)

In the days following D.M.'s discovery of the letter, J.M. shared two or three telephone conversations with K.G.(fn45) During the conversations, K.G. learned of a letter concerning threats to K.G.'s life, but J.M. told her another boy had written the letter.(fn46) In their final telephone conversation, J.M. disclosed to K.G. he had written the letter.(fn47) J.M. also declined to allow K.G. to read it.(fn48)

K.G. obtained D.M.'s help to take the letter from J.M. approximately one week prior to the start of the eighth grade year.(fn49) D.M. took the letter from J.M., without J.M.'s knowledge or permission.(fn50) On the second day of school, D.M. delivered the letter to K.G.(fn51) When K.G. read the letter during gym class, she began to cry and becamefrightened.(fn52) A student immediately notified the school resource officer, James Kesterson ("Kesterson"), of the threats against K.G. and Kesterson then conducted an investigation.(fn53)

Principal Robert Allison ("Principal Allison") also conducted an investigation and recommended to the school board J.M.'s expulsion for the remainder of the eighth grade year.(fn54) Principal Allison's recommendation rested on Rule 36 of the PCSSD Student Handbook for Student Conduct and Discipline, which prevented a student from making a terrorizing threat against another student.(fn55) J.M. and his parents appealed Principal Allison's recommendation to Dr. Welsh, Director of Student Services for PCSSD.(fn56) Dr. Welsh recommended J.M.'s expulsion for one semester, but allowed J.M. to attend the district's alternate school, Alpha Academy, during the suspension.(fn57) J.M. and his parents appealed Dr. Welsh's recommendation to thePCSSD School Board.(fn58) J.M. attended Alpha Academy from August 29, 2000, until September 12, 2000, the date of J.M.'s appeal hearing.(fn59) At the hearing's conclusion, the school board adopted Principal Allison's first recommendation to expel J.M. from Northwood and Alpha Academy for the remaining school year.(fn60)

Unhappy with the decision, J.M., through his parents, sued PCSSD in the United States District Court for the Eastern District of Arkansas, seeking reinstatement at Northwood.(fn61) J.M. claimed the expulsion violated his rights to free speech.(fn62) On September 27, 2000...

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