Haughwout v. Tordenti , 332 Conn. 559 ( 2019 )

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AUSTIN HAUGHWOUT v. LAURA TORDENTI ET AL.
(SC 20076)
Robinson, C. J., and Palmer, McDonald, Mullins,
Kahn, Ecker and Vertefeuille, Js.
Syllabus
The plaintiff, who had been expelled from a state university, sought, inter
alia, a writ of mandamus reinstating him as a student. Specifically, the
plaintiff alleged that the defendants, certain university officials involved
in the decision to expel him, violated his federal constitutional right to
free speech. An investigation conducted by university police revealed
that the plaintiff had identified a particular student as ‘‘first on his hit
list,’’ shared digital photographs of a bullet with other students, remarked
that he had loose bullets at home and in his truck, made certain com-
ments about ‘‘shoot[ing] up’’ the university, greeted others by pointing
at them with his hand in the shape of a gun, and bragged to others about
his guns and ammunition. Although students described the plaintiff’s
conduct as joking and nonchalant, some of those students indicated a
sense of alarm, concern or fear. As a result of his statements and conduct,
the plaintiff was suspended on an interim basis. Thereafter, the university
commenced formal disciplinary proceedings on the ground that the
plaintiff had violated several provisions of the student code of conduct.
At a hearing before a panel of school administrators and a professor,
the plaintiff largely denied making the statements and gestures attributed
to him. The hearing panel found, however, that the plaintiff was responsi-
ble for the statements and conduct at issue and expelled him from the
university. The hearing panel’s decision was upheld after an internal
appeal before the university’s associate dean for student affairs. In
disposing of the plaintiff’s free speech claim, the trial court concluded,
inter alia, that the plaintiff’s statements and gestures were true threats
that were not protected under the first amendment to the United States
constitution because, in light of various mass shootings at schools and
universities around the country, a reasonable person would have inter-
preted the plaintiff’s statements and gestures as serious expressions of
an intent to cause harm. The trial court rendered judgment for the
defendants, from which the plaintiff appealed. Held that the trial court
correctly determined that the plaintiff’s statements and gestures were
true threats that were not protected by the first amendment, and, accord-
ingly, this court affirmed the trial court’s judgment: in light of the plain-
tiff’s access to ammunition and weapons and his express statements to
that effect, the context provided by the relative frequency of contempo-
rary mass school shootings, and the absence of any facts mooring the
plaintiff’s statements to political or artistic hyperbole, a reasonable
person hearing the plaintiff’s statements and viewing his gestures would
be more than justified in believing that those expressions constituted
a physical threat; moreover, the plaintiff’s claim that his expressions
lacked sufficient specificity to constitute a true threat was inconsistent
with his statement identifying a particular student as being on his hit
list, which was communicated directly to that student, and failed to
account for the fear of indiscriminate and random death resulting from
mass shootings that may be shared by any number of people who fre-
quent a public place that has been the subject of a threat, his claim that
contemporaneous listeners characterized his statements as jokes and
did not understand them to be a serious expression of an intent to cause
harm was undercut by the fact that his statements and conduct were
subsequently reported to the university police, and his claim that his
statements were benign, political hyperbole was unpersuasive because
he had specifically denied making those same statements during the
underlying disciplinary proceedings.
Argued October 17, 2018—officially released July 30, 2019
Procedural History
Action seeking reinstatement following the plaintiff’s
expulsion from Central Connecticut State University,
and for other relief, brought to the Superior Court in
the judicial district of New Britain, where the court,
Hon. Joseph M. Shortall, judge trial referee, granted in
part the defendants’ motion to dismiss certain counts
of the complaint; thereafter, the case was tried to the
court, Hon. Joseph M. Shortall, judge trial referee, who,
exercising the powers of the Superior Court, rendered
judgment for the defendants, from which the plaintiff
appealed. Affirmed.
Mario Cerame, for the appellant (plaintiff).
Ralph E. Urban, assistant attorney general, with
whom, on the brief, was George Jepsen, former attorney
general, for the appellees (defendants).
Rebecca E. Adams filed a brief for the Connecticut
Association of Boards of Education as amicus curiae.
Opinion
ROBINSON, C. J. In this appeal, we consider the
limits of free speech on a public university campus in
light of recent history that has led federal and state
courts to describe threats of gun violence and mass
shootings as the twenty-first century equivalent to the
shout of fire in a crowded theater once envisioned by
Justice Oliver Wendell Holmes, Jr.1 See, e.g., Ponce v.
Socorro Independent School District, 508 F.3d 765, 772
(5th Cir. 2007); Milo v. New York, 59 F. Supp. 3d 513,
517 (E.D.N.Y. 2014); In re A.S., 243 Wis. 2d 173, 194,
626 N.W.2d 712 (2001). The plaintiff, Austin Haughwout,
brought the present action seeking to challenge his
expulsion from Central Connecticut State University
(university). The plaintiff now appeals2 from the judg-
ment of the trial court in favor of the defendants, Laura
Tordenti, Ramón Hernández, Christopher Dukes, and
Densil Samuda, the university officials involved in that
decision.3 On appeal, the plaintiff claims that the trial
court incorrectly determined that the various state-
ments and gestures with respect to gun violence and
mass shootings that led to his expulsion from the univer-
sity were true threats that are not protected by the first
amendment to the United States constitution, rather
than hyperbolic and humorous statements on a matter
of public concern. Although a public university campus
is a unique forum for the free exchange of controversial,
unpopular, and even offensive ideas, we nevertheless
conclude that the plaintiff’s statements and gestures
were true threats. Accordingly, we affirm the judgment
of the trial court.
The record reveals the following facts, as found by
the trial court,4 and procedural history. ‘‘On September
17, 2015, a student at [the university] (complainant)
went to the headquarters of the campus police to report
a ‘suspicious incident’ at the student center. [The com-
plainant] provided a written statement in which he said
that [the plaintiff] ‘made verbal cues discussing the
physical harm of another [university] student,’ identi-
fied the other student as ‘first on his hit list,’ showed
digital [photographs] of a bullet on his cell phone, and
‘remarked that he had loose bullets at home and in
his truck.’ The complainant said he did not know [the
plaintiff], but the statements were made in his presence.
The complainant further reported that [the plaintiff]
had never shown any weapons on his person, and that
he has ‘a habit of making hand gestures in the shape
of handguns as a common gesture.’
‘‘On September 21, 2015, the campus police inter-
viewed another [university] student who had known
[the plaintiff] since the spring semester [of] 2015 and
hung around with him in a group that met at the student
center. That student recounted statements by [the plain-
tiff] that ‘someone should shoot up this school’ or ‘I
should just shoot up this school.’ [The plaintiff] was
‘always’ talking about guns and ammunition and ‘greets
everyone by pointing at them with his hand in the shape
of a gun.’ This student reported that [the plaintiff] had
said to him that he was [the plaintiff’s] ‘number one
target,’ ‘number one on my list.’ [The plaintiff] ‘brags
constantly about his guns and ammunition, shows off
pictures and boasts about wanting to bring a gun to
school.’ This student described these statements by [the
plaintiff] as made ‘jokingly’ and that the group in which
they hung around dismissed what he said as a joke.
‘‘On the same day, the campus police reinterviewed
the complainant, who repeated his allegations of Sep-
tember 17. Although [the complainant], too, described
[the plaintiff’s] statements as having been made ‘jok-
ingly,’ he was ‘alarmed’ by them, had started avoiding
[the plaintiff], left the student center when [the plaintiff]
arrive[d] and was ‘afraid for everyone’s safety.’
‘‘On September 22, the campus police interviewed a
third student who related that he had heard [the plain-
tiff] during the preceding week state ‘something like
‘‘might as well shoot up the place.’’ ’ While this student
described [the plaintiff’s] statement as having been
made ‘nonchalantly,’ he was ‘concerned about the con-
text of [the plaintiff’s] exclamation’ because [the plain-
tiff] had been ‘upset about something’ when he made it.
‘‘The campus police interviewed [the plaintiff] on Sep-
tember 22, 2015, as well. While he acknowledged talking
about guns a lot, he denied ever saying anything about
shooting up the school, stating that ‘he knows better
than to mention anything like that.’ He attributed the
complaints against him to his position on gun rights.
‘‘After interviewing [the plaintiff], the campus police
called two of the persons they had previously inter-
viewed and inquired why they had not contacted police
upon hearing [the plaintiff’s] alleged remarks about
‘shooting up the school.’ One said he had been told by
others who heard the remark to ‘take it as a joke and
ignore [the plaintiff]’; the other stated that [he] ‘didn’t
take it seriously but . . . was kind of concerned.’
‘‘[Samuda], a detective with the campus police, partic-
ipated in this investigation. At its conclusion, on Sep-
tember 22, he applied for an arrest warrant charging [the
plaintiff] with the crime of threatening in the second
degree, in violation of General Statutes § 53a-62. The
state’s attorney declined the application, informing
. . . Samuda that probable cause for that crime was
lacking.5 [Samuda] reported the results of his investiga-
tion to [Dukes, the university’s director of student con-
duct, and] provided him with copies of the police
reports. On October 1, 2015, [the plaintiff] was placed on
an interim suspension by Hernández, [the university’s
associate dean for student affairs, because of] ‘alleged
behavior within our community.’ ’’ (Footnotes added
and omitted.)
Following an investigation by Dukes, the university
commenced disciplinary proceedings against the plain-
tiff on the ground that his actions had violated four
separate provisions of the university’s student code of
conduct prohibiting the following: physical assault,
intimidation, or threatening behavior; harassment; dis-
orderly conduct; and offensive or disorderly conduct.
A hearing was held before a panel consisting of two
administrators and a professor, at which the plaintiff
largely denied making the statements and gestures
attributed to him. See footnote 18 of this opinion. The
hearing panel found, however, that the plaintiff was
responsible on all charges, and decided to expel him
from the university’s campus. The hearing panel’s deci-
sion to expel the plaintiff from the university6 was sub-
sequently upheld after an internal appeal.7
The plaintiff subsequently brought this action seeking
a declaratory judgment, injunctive relief, and damages.
The plaintiff also sought a writ of mandamus reinstating
him as a student at the university, expungement of
misconduct allegations from his record, and a refund
of tuition and fees that had been withheld by the defen-
dants. The plaintiff claimed that his expulsion consti-
tuted a breach of contract, contravened an implied cov-
enant of duty of good faith and fair dealing, and violated
his state and federal constitutional rights to due process
of law and to freedom of speech.
After a hearing,8 the trial court issued a memorandum
of decision in which it rejected the plaintiff’s contrac-
tual and due process claims,9 and further concluded
that the defendants did not violate the plaintiff’s free
speech rights under the federal and state constitutions.
The trial court concluded that the plaintiff’s ‘‘statements
and gestures while in the student center at [the univer-
sity] fit the definition of ‘true threats,’ ’’ and ‘‘were cer-
tainly not statements that sought ‘to communicate a
belief or idea.’ ’’10 Because the plaintiff had ‘‘denied
almost all of these statements,’’ and, therefore, ‘‘the
record contains no direct evidence from him as to his
intentions in making them’’; see footnote 17 of this
opinion; the trial court relied on their content and ‘‘his
repeated utterances of them in a public place like the
student center,’’ and found that the plaintiff ‘‘meant
to ‘communicate a serious expression of an intent to
commit an act of unlawful violence to a particular indi-
vidual or group of individuals’ . . . namely, the stu-
dents at [the university]. Whether he actually intended
to carry through on the threat is unknown and immate-
rial.’’ (Citation omitted.) Given the ‘‘spate’’ of mass
shootings at schools and universities around the coun-
try, the trial court determined that ‘‘a reasonable person
. . . would have seen that such repeated statements
would be interpreted by the students to whom and in
whose presence he made them as ‘serious expressions
of intent to harm or assault.’ . . . And, although some
of the students treated [the plaintiff’s] statements as a
joke, at least some of them who heard these threats
were ‘alarmed’ and ‘concerned’ about them and in some
cases changed their behavior; e.g., coming less often
to the student center because of [the plaintiff’s] state-
ments.’’ (Citation omitted; footnote omitted.) Accord-
ingly, the trial court rendered judgment for the defen-
dants. This appeal followed.11
On appeal, the plaintiff, emphasizing that the first
amendment ‘‘doesn’t protect just the good jokes,’’
claims that the statements, gestures, and images that
he made were not true threats and, therefore, were a
constitutionally protected exercise of his right to free
speech.12 Relying heavily on the principles elucidated
in our decision in State v. Krijger, 313 Conn. 434, 97
A.3d 946 (2014), as well as the United States Supreme
Court’s decision in Watts v. United States, 394 U.S. 705,
89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969), the plaintiff
contends that his statements were not true threats but,
instead, were protected ‘‘jokes’’ or ‘‘ ‘political hyper-
bole’ ’’ akin to the satiric works of Lenny Bruce, which
constituted ‘‘dark humor’’ with long roots in Western
literature. The plaintiff emphasizes that, although it was
‘‘possible to construe [his] statements as a threat,’’ the
‘‘more plausible interpretation is benign,’’ given the con-
text in which ‘‘[e]veryone who heard the statements
understood them to be made jokingly,’’ and ‘‘[n]o con-
temporaneous listener understood [them] to be a seri-
ous expression of an intent to cause harm.’’ Relying on
his explanations before the hearing panel to provide
additional context, the plaintiff emphasizes that ‘‘none
[of the listeners] reacted in a manner consistent with
a serious expression of an intent to shoot members
of the school community’’ and puts his ‘‘[j]oking that
someone should shoot up the school’’ in the same con-
stitutionally protected ‘‘nasty bucket as a dead baby
joke.’’ The plaintiff further argues that his statements
lacked the particularity necessary to be a true threat,
and that his statements—whether examined as a whole
or in a ‘‘more granular way’’—were ambiguous and,
therefore, not true threats.
In response, the defendants argue that the plaintiff’s
statements and gestures were true threats under State
v. Krijger, supra, 313 Conn. 434, because ‘‘a reasonable
hearer or receiver of the expressive conduct would
believe [that he] was expressing a serious intent to
commit an act of unlawful violence.’’ Relying on, inter
alia, Doe v. Pulaski County Special School District, 306
F.3d 616 (8th Cir. 2002), and State v. DeLoreto, 265
Conn. 145, 827 A.2d 671 (2003), the defendants contend
that the plaintiff’s comments and gestures are reason-
ably understood as a true threat, given his access to
weapons and the fact that the students who witnessed
them evinced their fear insofar as some stopped going
to the student center, others went to the police, and,
‘‘while several of them verbally agreed to provide testi-
mony or information at [the plaintiff’s] campus disci-
plinary proceeding, only one showed up, and he became
notably agitated and fearful, and refused to appear
before the disciplinary panel when he learned [the plain-
tiff] would be present, leaving abruptly.’’ The defen-
dants argue that, although the plaintiff’s threats were
directed at particular individuals, including one student
whom he had described as his ‘‘ ‘number one target,’ ’’
the nature of the threats struck more broadly because
they implicated the randomness that is the ‘‘fear induc-
ing phenomenon’’ of mass shootings. The defendants
also contend that the record does not support the plain-
tiff’s contention that his statements and gestures were
humor, political satire, or political expression with
respect to gun control, largely because he ‘‘did not make
any such claims before the [university’s] hearing panel,
instead claiming that there was something about his
personality that caused people to lie about him and his
activities, and that the evidence against him was the
result of a personal vendetta by a particular student to
have him expelled.’’ Ultimately, the defendants claim
that the plaintiff’s ‘‘words and gestures, as received by
reasonable hearers or recipients, did not relate to any
important public policy issue, and [the plaintiff’s] man-
ner of expression, reasonably heard as true threats, was
clearly out of bounds on a college campus . . . .’’ We
agree with the defendants and conclude that the trial
court properly found that the plaintiff’s statements and
gestures were true threats not protected by the first
amendment.
‘‘The [f]irst [a]mendment, applicable to the [s]tates
through the [f]ourteenth [a]mendment, provides that
Congress shall make no law . . . abridging the freedom
of speech. The hallmark of the protection of free speech
is to allow free trade in ideas—even ideas that the over-
whelming majority of people might find distasteful or
discomforting. . . . Thus, the [f]irst [a]mendment ordi-
narily denies a [s]tate the power to prohibit dissemi-
nation of social, economic and political doctrine [that]
a vast majority of its citizens believes to be false and
fraught with evil consequence. . . .
‘‘The protections afforded by the [f]irst [a]mendment,
however, are not absolute, and we have long recognized
that the government may regulate certain categories of
expression consistent with the [c]onstitution. . . . The
[f]irst [a]mendment permits restrictions [on] the con-
tent of speech in a few limited areas, which are of such
slight social value as a step to truth that any benefit
that may be derived from them is clearly outweighed
by the social interest in order and morality.’’ (Internal
quotation marks omitted.) State v. Krijger, supra, 313
Conn. 448–49; see also United States v. Alvarez, 567
U.S. 709, 716, 132 S. Ct. 2537, 183 L. Ed. 2d 574 (2012)
(observing that ‘‘content-based restrictions on speech
have been permitted, as a general matter, only when
confined to the few historic and traditional categories
[of expression] long familiar to the bar,’’ including
‘‘advocacy intended, and likely, to incite imminent law-
less action,’’ obscenity, defamation, ‘‘speech integral
to criminal conduct,’’ ‘‘so-called fighting words,’’ child
pornography, fraud, true threats, and ‘‘speech present-
ing some grave and imminent threat the government
has the power to prevent . . . although a restriction
under the last category is most difficult to sustain’’ [cita-
tion omitted; internal quotation marks omitted]).
The first amendment permits states to restrict13 true
threats, which ‘‘encompass those statements [through
which] the speaker means to communicate a serious
expression of an intent to commit an act of unlawful
violence to a particular individual or group of individu-
als. . . . The speaker need not actually intend to carry
out the threat. Rather, a prohibition on true threats
protect[s] individuals from the fear of violence and from
the disruption that fear engenders, in addition to pro-
tecting people from the possibility that the threatened
violence will occur. . . .
‘‘Thus, we must distinguish between true threats,
which, because of their lack of communicative value,
are not protected by the first amendment, and those
statements that seek to communicate a belief or idea,
such as political hyperbole or a mere joke, which are
protected. . . . In the context of a threat of physical
violence, [w]hether a particular statement may properly
be considered to be a [true] threat is governed by an
objective standard—whether a reasonable person
would foresee that the statement would be interpreted
by those to whom the maker communicates the state-
ment as a serious expression of intent to harm or
assault. . . . [A]lleged threats should be considered in
light of their entire factual context, including the sur-
rounding events and reaction of the listeners.’’ (Cita-
tions omitted; internal quotation marks omitted.) State
v. Krijger, supra, 313 Conn. 449–50; see also Virginia
v. Black, 538 U.S. 343, 359–60, 123 S. Ct. 1536, 155 L.
Ed. 2d 535 (2003); Watts v. United States, supra, 394
U.S. 707–708.
‘‘[T]o ensure that only serious expressions of an
intention to commit an act of unlawful violence are
punished, as the first amendment requires, the state
[actor] must do more than demonstrate that a statement
could be interpreted as a threat. When . . . a statement
is susceptible of varying interpretations, at least one of
which is nonthreatening, the proper standard to apply
is whether an objective listener would readily interpret
the statement as a real or true threat; nothing less is
sufficient to safeguard the constitutional guarantee of
freedom of expression. To meet this standard [the state
actor is] required to present evidence demonstrating
that a reasonable listener, familiar with the entire fac-
tual context of the defendant’s statements, would be
highly likely to interpret them as communicating a genu-
ine threat of violence rather than protected expression,
however offensive or repugnant.’’ (Emphasis in origi-
nal.) State v. Krijger, supra, 313 Conn. 460; see also
State v. Taupier, 330 Conn. 149, 173, 193 A.3d 1 (2018)
(true threat inquiry is objectively judged from perspec-
tive of reasonable listener, and first amendment does
not require speaker to have specific intent to terrorize),
cert. denied, U.S. , 139 S. Ct. 1188, 203 L. Ed.
2d 202 (2019). Because the true threats doctrine has
equal applicability in civil and criminal cases, case law
from both contexts informs our inquiry. See New York
ex rel. Spitzer v. Operation Rescue National, 273 F.3d
184, 196–97 (2d Cir. 2001).
In determining whether the trial court properly found
that the defendant’s statements and gestures were true
threats, we recognize that, although we ordinarily
review findings of fact for clear error, ‘‘[i]n certain first
amendment contexts . . . appellate courts are bound
to apply a de novo standard of review. . . . [In such
cases], the inquiry into the protected status of . . .
speech is one of law, not fact. . . . As such, an appel-
late court is compelled to examine for [itself] the . . .
statements [at] issue and the circumstances under
which they [were] made to [determine] whether . . .
they . . . are of a character [that] the principles of the
[f]irst [a]mendment . . . protect. . . . [I]n cases rais-
ing [f]irst [a]mendment issues [the United States
Supreme Court has] repeatedly held that an appellate
court has an obligation to make an independent exami-
nation of the whole record in order to make sure that
the judgment does not constitute a forbidden intrusion
[in] the field of free expression. . . . This rule of inde-
pendent review was forged in recognition that a
[reviewing] [c]ourt’s duty is not limited to the elabora-
tion of constitutional principles . . . . [Rather, an
appellate court] must also in proper cases review the
evidence to make certain that those principles have
been constitutionally applied. . . . Therefore, even
though, ordinarily . . . [f]indings of fact . . . shall not
be set aside unless clearly erroneous, [appellate courts]
are obliged to [perform] a fresh examination of crucial
facts under the rule of independent review.’’ (Citation
omitted; internal quotation marks omitted.) State v.
Krijger, supra, 313 Conn. 446–47; see also New York
Times Co. v. Sullivan, 376 U.S. 254, 284–86, 84 S. Ct.
710, 11 L. Ed. 2d 686 (1964). We emphasize, however,
that ‘‘the heightened scrutiny that this court applies in
first amendment cases does not authorize us to make
credibility determinations regarding disputed issues of
fact. Although we review de novo the trier of fact’s
ultimate determination that the statements at issue con-
stituted a true threat, we accept all subsidiary credibility
determinations and findings that are not clearly errone-
ous.’’ State v. Krijger, supra, 447; see id., 447–48 (noting
that independent review is applied to version of remarks
at issue that fact finder credited).
To frame our independent analysis, we note that the
trial court concluded that the student witnesses’ state-
ments supported findings that the plaintiff (1) ‘‘made
frequent shooting hand gestures as a form of greeting
to students in the student center,’’ (2) ‘‘with his hand
in a shooting gesture, [he] aimed at students and made
firing noises as they were walking through the student
center,’’ (3) ‘‘wondered aloud how many rounds he
would need to shoot people at the school and referred
to the fact that he had bullets at home and in his truck,’’
(4) ‘‘showed off pictures of the guns he owned and
boasted about bringing a gun to school,’’ (5) ‘‘referred
specifically and on more than one occasion to his ‘shoot-
ing up the school,’ ’’ (6) ‘‘during a test of the school’s
alarm system stated that ‘someone should really shoot
up the school for real so it’s not a drill,’ ’’ (7) ‘‘named
as his ‘number one target’ a particular student in the
student center,’’ and (8) ‘‘made specific reference to a
shooting at an Oregon community college where several
students had been killed and wounded, stating that the
Oregon shooting had ‘beat us.’ ’’ Having reviewed the
record, we agree with the trial court’s conclusion that
the totality of the plaintiff’s comments and gestures
would reasonably be understood to be a true threat of
gun violence at the university.14
Although most of the plaintiff’s comments were indi-
vidually not an ‘‘explicit threat,’’ that phrasing does not
render them protected speech, because ‘‘rigid adher-
ence to the literal meaning of a communication without
regard to its reasonable connotations derived from its
ambience would render [statutes proscribing true
threats] powerless against the ingenuity of threateners
who can instill in the victim’s mind as clear an apprehen-
sion of impending injury by an implied menace as by
a literal threat. . . . Thus, a determination of what a
defendant actually said is just the beginning of a threats
analysis. Even when words are threatening on their
face, careful attention must be paid to the context in
which those statements are made to determine if the
words may be objectively perceived as threatening.’’
(Citation omitted; internal quotation marks omitted.)
State v. Krijger, supra, 313 Conn. 452–53. Put differ-
ently, even veiled statements may be true threats. See
United States v. Dillard, 795 F.3d 1191, 1200–1201 (10th
Cir. 2015) (District Court incorrectly concluded that
defendant’s statement in letter to abortion clinic physi-
cian that ‘‘an unidentified ‘someone’ might place explo-
sives under [physician’s] car’’ was not true threat
because ambiguous statement without ‘‘direct state-
ment of personal intent’’ may be true threat given other
factors, including local history of violence); United
States v. Bly, 510 F.3d 453, 456–59 (4th Cir. 2007) (letter
sent by former doctoral student was true threat to uni-
versity board members and academic officers when
it made demands and [1] stated that ‘‘ ‘bullets are far
cheaper and much more decisive’ ’’ than legal action as
‘‘ ‘[a] person with my meager means and abilities can
stand at a distance of two football fields and end ele-
ments of long standing dispute with the twitch of my
index finger,’ ’’ [2] stated that ‘‘ ‘it would be a shame to
brutalize [thesis advisors] in order to guarantee that I
receive a hearing of my story and a form of justice,’ ’’
and [3] enclosed ‘‘copies of firearms practice targets
with bullet holes near their centers,’’ despite disclaimer
stating that ‘‘ ‘[t]hese comments are not to be interpre-
ted as illegal brandishing of a firearm, blackmail, or
extortion’ ’’); see also United States v. Voneida, 337
Fed. Appx. 246, 248–49 (3d Cir. 2009) (upholding jury
finding that college student transmitted threatening
communication in violation of 18 U.S.C. § 875 [c] when
he posted, inter alia, following statements on his per-
sonal social media page two days after Virginia Tech
mass shooting: [1] ‘‘ ‘Someday . . . I’ll make the Vir-
ginia Tech incident look like a trip to an amusement
park’ ’’; [2] ‘‘expressed ‘[shock]’ that after the Virginia
Tech [shooting] his classmates ‘were actually surprised
that there are people out there who would shoot them
if given the opportunity’ ’’; [3] ‘‘ ‘lost my respect [for]
the sanctity of human life’ ’’; and [4] included tributes
to Virginia Tech shooter as martyr, with wish that shoot-
er’s ‘‘ ‘undaunted and unquenched’ wrath would ‘sweep
across the land,’ ’’ particularly given fearful reactions
by multiple students at his university and elsewhere
who viewed post and contacted police).
Given his express statements that he had access to
firearms and ammunition, the plaintiff’s statements and
gestures—especially when viewed in the context that
they provide for each other—are within the realm of
those that have been deemed true threats, especially
in the contemporary context of school shootings. We
find particularly illustrative the decision of the United
States Court of Appeals for the Eighth Circuit in D.J.M.
v. Hannibal Public School District No. 60, 647 F.3d
754, 756–57 (8th Cir. 2011), which considered whether
statements sent by a public school student to another
student via instant message were true threats, rendering
his suspension not a first amendment violation. In
D.J.M., the court concluded that the following state-
ments, when viewed in their entirety, were reasonably
viewed as ‘‘serious expressions of intent to harm,’’
rather than ‘‘in jest out of teenage frustration’’: [1] that
the student admitted ‘‘he was depressed at being
rejected by a romantic interest; [2] his ‘access to weap-
ons’ which made his threats ‘believable’; [3] [the instant
message recipient’s] report that [the student] said he
intended to take a gun to school to shoot everyone he
hates and then himself; [4] his expressed ‘desire to
kill at least five classmates’; [5] his telling [the instant
message recipient he] ‘wanted [their town] to be known
for something’; and [6] [the instant message recipient’s]
growing concern that caused her to contact a trusted
adult about his threats.’’ Id., 762–63. The court rejected
the student’s reliance on Watts v. United States, supra,
394 U.S. 705, and held that a reasonable recipient would
find these statements threatening—despite the fact that
the immediate recipient responded humorously with
‘‘lol’’15—because the student had described individual
targets of his threat, indicated his access to a .357 Mag-
num that he could borrow from a friend, and the recipi-
ent was concerned enough to tell a trusted adult, who
informed school officials, later resulting in the student’s
suspension and inpatient psychiatric evaluation. D.J.M.
v. Hannibal Public School District No. 60, supra, 758,
762–64. The Eighth Circuit concluded that, in ‘‘light of
the [school district’s] obligation to ensure the safety of
its students and reasonable concerns created by shoot-
ing deaths at other schools such as [those in] Columbine
and the Red Lake [Indian] Reservation . . . the [school
district] did not violate the [f]irst [a]mendment by noti-
fying the police about [the student’s] threatening instant
messages and subsequently suspending him after he
was placed in juvenile detention.’’ Id., 764. Put most
succinctly, the court emphasized that the first amend-
ment ‘‘did not require the [school district] to wait and
see whether [the student’s] talk about taking a gun to
school and shooting certain students would be carried
out.’’ Id.
Numerous other cases support the reasonableness of
concern over threats of gun violence in the educational
setting because ‘‘knowledge by the target of a threat
that the defendant had the means to carry out the threat
can support the inference that the target would reason-
ably interpret the threat to be serious.’’ (Emphasis omit-
ted.) State v. Taupier, supra, 330 Conn. 183; see Lovell
v. Poway Unified School District, 90 F.3d 367, 372–73
(9th Cir. 1996) (concluding that ‘‘any person could rea-
sonably consider the statement ‘[i]f you don’t give me
this schedule change, I’m going to shoot you,’ made by
an angry teenager [to school guidance counselor], to
be a serious expression of intent to harm or assault,’’
especially ‘‘when considered against the backdrop of
increasing violence among school children today’’);
People v. Diomedes, 13 N.E.3d 125, 134–39 (Ill. App.
2014) (e-mail sent by student to anti-bullying activist,
although ‘‘ ‘an expression of teenage despair,’ ’’ was true
threat because they did not have confidential therapeu-
tic relationship, student expressed wish for certain
‘‘specific individuals to die and suffer,’’ student had
history of making at least one prior threat, and there
was no indication that statement was made in hyperbole
or jest), appeal denied, 39 N.E.3d 1006 (Ill. 2015); State
v. Trey M., 186 Wash. 2d 884, 888–90, 906–907, 383 P.3d
474 (2016) (concluding that juvenile’s statements to his
therapist, later repeated to police officer, that he
planned to take his grandfather’s nine millimeter gun
from a cabinet and bring it to school to shoot boys who
had bullied and teased him, and if he could not get gun
to use bombs, was true threat given specificity of access
to weapons, fear expressed by boys who were on juve-
nile’s ‘‘hit list,’’ juvenile’s confession to making bombs,
and communication of time and location of planned
shooting), cert. denied, U.S. , 138 S. Ct. 313, 199
L. Ed. 2d 207 (2017); In re A.S., supra, 243 Wis. 2d
182–83, 194 (juvenile’s statements, made in ‘‘very matter
of fact manner’’ while playing video games at local youth
center, that he would bring guns and ‘‘do something
similar’’ to Columbine school shooting, while sparing
some classmates and killing and raping certain specified
teachers and police officers, were true threats when
listeners were frightened, and there was no indication
in context or statements that they were ‘‘hyperbole,
jest, or political dissent’’); see also Feminist Majority
Foundation v. Hurley, 911 F.3d 674, 691–92 (4th Cir.
2018) (rejecting university’s defense in Title IX case
that first amendment ‘‘circumscribed’’ its ability to
respond to ‘‘online harassment and threats suffered’’
by member of campus women’s organization, because
threatening online messages were true threats, includ-
ing those threatening to ‘‘ ‘euthanize,’ ’’ kill, and sexually
assault organization’s members ‘‘where the backdrop
of the threatening messages is a campus environment
purportedly conducive to sexual assault, and those mes-
sages target persons by name and location’’); Walker v.
Suarez, United States District Court, Docket No. 15-
CV-01960 (RBJ) (D. Colo. January 26, 2016) (threat to
shoot down helicopter was true threat when it was
made against specific individual on multiple occasions
and by person with ‘‘access to guns’’ who had purchased
rifle scope on same day), appeal dismissed, United
States Court of Appeals, Docket No. 16-1055 (10th Cir.
May 02, 2016).
The plaintiff also contends that the requisite particu-
larity is lacking, because ‘‘[n]o one indicated a particu-
larized fear. All concern and worry [were] generalized.’’
We disagree. First, this argument is inconsistent with
the trial court’s finding that the plaintiff had in fact
identified one specific student as ‘‘ ‘number one’ ’’ on
the plaintiff’s ‘‘ ‘hit list,’ ’’ and the statement had been
communicated to that student directly. Although that
student believed that the statement was made ‘‘ ‘jok-
ingly,’ ’’ he nevertheless was ‘‘ ‘alarmed’ ’’ by it and was
sufficiently concerned for everyone’s safety to contact
the university police. Second, this argument reads too
narrowly the boilerplate proposition that a true threat
is ‘‘a serious expression of an intent to commit an act
of unlawful violence to a particular individual or group
of individuals.’’ (Emphasis added; internal quotation
marks omitted.) State v. Krijger, supra, 313 Conn. 449.
The fear of indiscriminate and random death and injury
that results from mass shootings, like Sandy Hook, Vir-
ginia Tech, and Columbine, transcends any one specific
individual and is shared by any one of the many people
who must frequent a public place—such as a university
student union—that has been the subject of a threat.
See State v. Pelella, 327 Conn. 1, 11, 16–17, 170 A.3d 647
(2017) (‘‘[A] threat need not be imminent to constitute
a constitutionally punishable true threat’’ because ‘‘a
prohibition on true threats protect[s] individuals from
the fear of violence and from the disruption that fear
engenders, in addition to protecting people from the
possibility that the threatened violence will occur. . . .
Indeed, [t]hreatening speech . . . works directly the
harms of apprehension and disruption, whether the
apparent resolve proves bluster or not and whether
the injury is threatened to be immediate or delayed.’’
[Citation omitted; internal quotation marks omitted.]).
Indeed, the relative frequency of these mass shoot-
ings informs the reasonableness of viewing the plain-
tiff’s remarks, which were apparently unmoored to
political or other discourse, as true threats. See, e.g.,
D.J.M. v. Hannibal Public School District No. 60, supra,
647 F.3d 764 (noting school district’s ‘‘obligation to
ensure the safety of its students and reasonable con-
cerns created by shooting deaths at other schools such
as [those in] Columbine and the Red Lake [Indian] Res-
ervation’’); Doe v. Pulaski County Special School Dis-
trict, supra, 306 F.3d 625–26 and n.4 (letter authored
by student expressing his ‘‘wish to sodomize, rape, and
kill’’ his ex-girlfriend was true threat justifying suspen-
sion ‘‘in the wake of Columbine and Jonesboro,’’ render-
ing it ‘‘untenable’’ that school officials learning about
the letter ‘‘would not have taken some action based on
its violent and disturbing content’’). It is no wonder
that, especially in an educational setting, threatening
statements about mass shootings are the equivalent of,
‘‘in the words of [Justice] Holmes, [a cry of] ‘fire’ in a
crowded theater.’’ In re A.S., supra, 243 Wis. 2d 194;
see, e.g., Ponce v. Socorro Independent School District,
supra, 508 F.3d 772; Milo v. New York, supra, 59 F.
Supp. 3d 517; see also State v. Parnoff, 329 Conn. 386,
426, 186 A.3d 640 (2018) (Kahn, J., concurring) (recog-
nizing that, in current times, ‘‘the threat of gun violence
is tasteless, shameful, and all too real’’).
The plaintiff argues, however, that ‘‘[n]o contempora-
neous listener understood the statements to be a serious
expression of an intent to cause harm,’’ and that
‘‘[e]veryone who heard the statements understood them
to be made jokingly.’’ We disagree with the plaintiff’s
reading of the record. Although the narrative in the
police reports that were evidence before the hearing
panel indicates that some students elected to treat the
plaintiff’s remarks as made in jest, that narrative also
indicates that some of those same students nevertheless
were sufficiently perturbed to contact the university
police, with one complaining witness apparently so
fearful for his safety that he refused to appear as a
witness at the university’s disciplinary hearing. Given
the objective nature of the inquiry, the listener’s reac-
tion of concern or fear need not be dramatic or immedi-
ate, and the apparently mixed emotions of the listeners
are not dispositive. See D.J.M. v. Hannibal Public
School District No. 60, supra, 647 F.3d 758, 762–63
(teenage recipient of instant message with threats
responded ‘‘lol,’’ but was also concerned enough to tell
trusted adult); Lovell v. Poway Unified School District,
supra, 90 F.3d 372–73 (The court noted that a school
guidance counselor had ‘‘stated repeatedly that she felt
threatened’’ when confronted, and that ‘‘[t]he fact that
she chose not to seek help instantly is not dispositive.
She did report the conduct to [an assistant principal]
within a few hours, before she went home that day.
Exhibiting fortitude and stoicism in the interim does
not vitiate the threatening nature of [the student’s] con-
duct, or [the guidance counselor’s] belief that [the stu-
dent had] threatened her.’’); see also State v. Taupier,
supra, 330 Conn. 158–59, 191–92 (reader of e-mail con-
taining threat to judge mentioned her concern to several
people, but waited several days and gathered additional
information before disclosing it to attorney for fur-
ther action).
To this end, we also disagree with the plaintiff’s argu-
ment that his statements and gestures were ambiguous
and more properly interpreted as benign jokes or politi-
cal hyperbole that are protected by the first amendment,
including the numerous innocent explanations that he
proffers for them on a more granular basis, such as the
existence of a gun emoji to justify his use of images of
firearms and ammunition. These arguments reflect the
plaintiff’s attempts to seek shelter under the United
States Supreme Court’s landmark decision in Watts v.
United States, supra, 394 U.S. 706, the leading true
threats decision in which a Vietnam War protestor, after
being drafted, stated at a public rally in Washington,
D.C., three years after the assassination of President
John F. Kennedy, that, ‘‘ ‘[i]f they ever make me carry
a rifle the first man I want to get in my sights is L.
B. J.’ ’’ In concluding that this statement was political
hyperbole protected by the first amendment, rather
than a true threat, the Supreme Court noted the condi-
tional nature of the statement, and that it was made at
a public rally on a matter of great public concern to an
audience response of laughter. Id., 707–708. The
Supreme Court emphasized that even ‘‘vehement, caus-
tic, and sometimes unpleasantly sharp attacks on gov-
ernment and public officials’’ should not be prohibited
given the ‘‘background of a profound national commit-
ment to the principle that debate on public issues should
be uninhibited, robust, and wide open . . . .’’ (Internal
quotation marks omitted.) Id., 708; see also State v.
Krijger, supra, 313 Conn. 450. Accordingly, we agree
with the plaintiff—in theory—that not all references to
school violence necessarily will constitute true threats
unprotected by the first amendment.16
The plaintiff’s attempt to cast the present case as
one of political hyperbole and humor akin to Watts is
particularly unpersuasive in light of his strategy before
the trial court and university hearing tribunal. Specifi-
cally, the plaintiff expressly elected to forgo a formal
bench trial by allowing the trial court to rely on the
facts found during the university’s disciplinary proceed-
ings and an earlier motion hearing that had focused on
certain due process issues not relevant to the present
appeal.17 The evidence contained in that record provides
virtually no factual support for his claim that his state-
ments were political hyperbole or poorly stated satire.
Compounding this is the fact that the record reveals that
the plaintiff’s elected strategy before the university’s
hearing panel consisted of (1) denying outright that
he made the statements at issue, and (2) framing the
university proceedings against him as a political and
personal persecution,18 rather than defending the spe-
cific statements as artistic or political hyperbole.19 Put
differently, the plaintiff’s prior disavowal of the state-
ments is inconsistent with his claim that they were
spoken to make a political point. Accordingly, the
record, although adequate for review of the plaintiff’s
constitutional claims, simply does not contain factual
support for his argument that his statements and ges-
tures would reasonably be understood as political
hyperbole or humor, rather than a true threat.20
We acknowledge that ‘‘[f]reedom of speech needs
breathing space to survive. . . . And vigilant protec-
tion of [f]irst [a]mendment rights is nowhere more vital
than at public universities, which are peculiarly the
marketplace of ideas. . . . For those reasons. . . poli-
cies that formally or informally suppress protected
expression at public universities raise serious [f]irst
[a]mendment concerns. . . . And while we are mindful
of universities’ obligations to address serious discrimi-
nation and harassment against their students, we also
are attentive to the dangers of stretching policies
beyond their purpose to stifle debate, enforce dogma, or
punish dissent.’’21 (Citations omitted; internal quotation
marks omitted.) Abbott v. Pastides, 900 F.3d 160, 179–80
(4th Cir. 2018), cert. denied, U.S. , 139 S. Ct.
1292, 203 L. Ed. 2d 428 (2019); see also Healy v. James,
408 U.S. 169, 180, 92 S. Ct. 2338, 33 L. Ed. 2d 266 (1972);
NAACP v. Button, 371 U.S. 415, 433, 83 S. Ct. 328, 9 L.
Ed. 2d 405 (1963). Nevertheless, in the absence of any
facts mooring the plaintiff’s statements to political or
artistic hyperbole, and given his stated access to weap-
ons and ammunition, a reasonable person hearing the
plaintiff’s statements and viewing his gestures at a
school in the same state as Sandy Hook would be more
than justified in understanding his statements as a phys-
ical threat to the ‘‘great bazaars of ideas’’ themselves.
(Internal quotation marks omitted.) Doe v. Rector &
Visitors of George Mason University, 149 F. Supp. 3d
602, 627 (E.D. Va. 2016). Accordingly, we conclude that
the trial court correctly determined that the plaintiff’s
statements were true threats that were not protected
by the first amendment.22
The judgment is affirmed.
In this opinion the other justices concurred.
1
Schenck v. United States, 249 U.S. 47, 52, 39 S. Ct. 247, 63 L. Ed. 470 (1919).
2
The plaintiff appealed from the judgment of the trial court to the Appellate
Court, and we transferred the appeal to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1.
3
At the time of the events underlying the present appeal, Tordenti was
vice president for student affairs, Hernández was the associate dean for
student affairs, Dukes was the director of student conduct, and Samuda
was a detective employed by the university police department.
4
The trial court did not receive evidence or hear arguments during a
formal bench trial in the present case. Instead, with the agreement of the
parties, the trial court found facts on the basis of the record of the university’s
disciplinary proceedings and certain testimony from the plaintiff and Dukes
at a pretrial hearing held before the court on August 8, 2016. See footnote
17 of this opinion and accompanying text.
5
The trial court stated that it ‘‘consider[ed] the prosecutor’s declination
of little moment. The requirements for establishing probable cause for the
elements of threatening in the second degree, in violation of § 53a-62, bear
no necessary relationship to the requirements for taking disciplinary action
for a violation of the [university’s student code of conduct].’’
6
In addition to his expulsion from the university, the plaintiff was also
‘‘permanently banned from returning to,’’ or attending events on, the prem-
ises of the other three four year university campuses in the Connecticut
State College and University system.
7
Specifically, the plaintiff appealed from the hearing panel’s decision to
Tordenti, the university’s vice president for student affairs, who, in turn,
assigned Hernández to hear the appeal. After a hearing, Hernández issued
a decision rejecting the plaintiff’s claims that the hearing did not comply
with the university’s student code of conduct and that ‘‘the sanction of
[e]xpulsion . . . was not appropriate . . . .’’
8
See footnotes 4 and 17 of this opinion.
9
We note that, on appeal, the plaintiff does not challenge the trial court’s
determinations that the university’s ‘‘disciplinary procedures did not violate
[his] due process rights under either the federal or state constitution and
[that the university] adhered to the disciplinary procedures prescribed by
the [university’s student code of conduct],’’ and, therefore, no breach of
contract or the duty of good faith and fair dealing occurred in that respect.
10
A detailed listing of the statements and gestures that the trial court
determined were a true threat is set forth in the text accompanying footnote
14 of this opinion.
11
On November 16, 2018, after the oral argument in the present appeal,
we invited numerous organizations and institutions, namely, the American
Civil Liberties Union of Connecticut, the Connecticut Conference of Indepen-
dent Colleges, the University of Connecticut, several sections of the Connect-
icut Bar Association, Yale University, and the Connecticut Association of
Boards of Education, to file briefs as amici curiae. Only the Connecticut
Association of Boards of Education accepted our invitation, and we are
grateful for its participation.
12
We note that the plaintiff, although attempting to reserve and ‘‘not
[waive]’’ the right to do so, has specifically declined to brief a claim, in
accordance with State v. Geisler, 222 Conn. 672, 610 A.2d 1225 (1992), that
his speech is entitled to greater protection under article first, §§ 4, 5 and
14, of the Connecticut constitution. This absence was based on the ‘‘good
faith’’ belief of his counsel that, because ‘‘the established federal standard
is clearly dispositive on this factual record . . . this case does not provide
occasion to define any daylight between the state and federal constitutions
on the issue of true threats.’’ Consistent with his attempted reservation, but
inconsistent with his no ‘‘daylight’’ assertion, the plaintiff’s reply brief raises
a claim that, under the state constitution, the speaker must have the specific
intent to speak threateningly for a statement to be a true threat, which he
casts as a response to an issue that the defendants ‘‘pressed’’ in their brief.
As is reflected in our April 4, 2018 order granting the defendants’ motion
to strike the corresponding pages of the plaintiff’s reply brief, we decline
to countenance this approach, which violates the well settled principle that
claims may not be raised for the first time in a reply brief. See, e.g., Isabella
D. v. Dept. of Children & Families, 320 Conn. 215, 236 n.19, 128 A.3d 916,
cert. denied, U.S. , 137 S. Ct. 181, 196 L. Ed. 2d 124 (2016); see also
Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 32–33, 12 A.3d 865
(2011) (declining to consider claim that statute violates separation of powers
provision under state constitution because it was unpreserved and raised
for first time under State v. Golding, 213 Conn. 233, 239–40, 567 A.2d 823
[1989], in reply brief).
Beyond this procedural bar to review of the plaintiff’s state constitutional
claim, we recently rejected its merits in State v. Taupier, 330 Conn. 149,
193 A.3d 1 (2018), cert. denied, U.S. , 139 S. Ct. 1188, 203 L. Ed. 2d
202 (2019), in which we concluded that neither the federal nor the state
constitution require the speaker to have the specific intent to threaten in
order for a statement to be deemed an unprotected true threat. See id.,
173–74 (joining those federal courts that have concluded that true threat
under first amendment does not require proof of specific intent); id., 174–76
(concluding after Geisler analysis that true threat under state constitution
does not require proof of specific intent).
13
It is undisputed that, given its status as a public institution of higher
education, the university’s enforcement of its student code of conduct via the
commencement of disciplinary proceedings against the plaintiff constituted
state action for purposes of the first amendment. See, e.g., IOTA XI Chapter
of Sigma Chi Fraternity v. George Mason University, 993 F.2d 386, 393
(4th Cir. 1993); see also Furumoto v. Lyman, 362 F. Supp. 1267, 1276–80
(N.D. Cal. 1973) (citing cases and rejecting argument that state benefits and
regulation of Stanford University rendered it arm of state for purposes of
action under 42 U.S.C. § 1983 claiming that disciplinary action violated
students’ first amendment rights).
14
We note that the multiple statements and gestures made at different
times in this case differ from those in our previous true threat cases, which
considered the import of statements or gestures made in the course of a
single incident. See, e.g., State v. Taupier, supra, 330 Conn. 156–57 (single
e-mail to judge containing multiple threatening statements); State v. Pelella,
327 Conn. 1, 4, 170 A.3d 647 (2017) (single threat made during domestic
dispute between brothers); State v. Krijger, supra, 313 Conn. 439–41 (single
in-person reference to injuries previously suffered by listener’s son made
during angry altercation); State v. Cook, 287 Conn. 237, 240–41, 947 A.2d
307 (threat with table leg), cert. denied, 555 U.S. 970, 129 S. Ct. 464, 172 L.
Ed. 2d 328 (2008); State v. DeLoreto, supra, 265 Conn. 156–58 (statements to
police officers on separate occasions formed independent bases for multiple
charges). In contrast to these cases, the present case largely turns on the
sum of the parts of the plaintiff’s statements and gestures made over a
relatively extended period of time.
15
We note that the abbreviation ‘‘ ‘lol’ means the speaker is ‘laughing out
loud.’ ’’ D.J.M. v. Hannibal Public School District No. 60, supra, 647 F.3d 758.
16
Consistent with Watts, our research reveals that not every reference to
the topics of violence or shootings in the school setting—even the troubling
and offensive ones—will rise to the level of a true threat. Some references
are, for example, overtly political speech. See Ross v. Jackson, 897 F.3d
916, 918, 922 n.7 (8th Cir. 2018) (gun control advocate did not commit true
threat by asking, ‘‘ ‘[w]hich one do I need to shoot up a kindergarten’ ’’ on
Facebook meme with numerous pictures of firearms and their proffered
uses because comment ‘‘directly paralleled the language of the meme’’ and
‘‘was in the form of a rhetorical question, which identified no school where
a shooting would happen’’ [emphasis added]).
Other school violence references, while disturbing, are made in creative
or artistic contexts that lack other indicia of a true threat. See, e.g., In re
George T., 33 Cal. 4th 620, 624, 635–38, 93 P.3d 1007, 16 Cal. Rptr. 3d 61
(2004) (poem authored by high school student in honors English class
‘‘labeled ‘Dark Poetry,’ which recites in part, ‘I am Dark, Destructive, &
Dangerous. I slap on my face of happiness but inside I am evil!! For I can
be the next kid to bring guns to kill students at school. So parents watch
your children cuz I’m BACK!!’ ’’ was not criminal threat because context
provided no indicia of threat, such as animosity between author and fellow
student to whom he gave poem, or other ‘‘threatening gestures or manner-
isms’’); In re Douglas D., 243 Wis. 2d 204, 213–14, 234–35, 626 N.W.2d 725
(2001) (noting that thirteen year old boy’s story depicting teacher’s death was
not true threat when it was phrased in third person, contained ‘‘hyperbole
and attempts at jest,’’ and was written in ‘‘the context of a creative writing
class,’’ and opining that case would be different if boy had ‘‘penned the
same story in a math class, for example, where such a tale likely would be
grossly outside the scope of his assigned work’’).
Beyond artistic and political statements utilizing the imagery of mass
shootings and violence, some references are just sophomoric attempts at
humor—which, as the plaintiff points out, are protected as ‘‘[d]istasteful
and even highly offensive communication does not necessarily fall from
[f]irst [a]mendment protection as a true threat simply because of its objec-
tionable nature.’’ J.S. v. Bethlehem Area School District, 569 Pa. 638, 659,
807 A.2d 847 (2002); see also Burge v. Colton School District 53, 100 F.
Supp. 3d 1057, 1060, 1069 (D. Or. 2015) (eighth grade student’s comment
on Facebook page, that ‘‘ ‘haha [teacher] needs to be shot,’ ’’ was not true
threat because settings were not visible to school faculty or staff, and were
understood by ‘‘audience as critique of [teacher’s] skills and not the serious
expression of intent to harm her,’’ and because there was no evidence of
access to weapons or history of violence); Murakowski v. University of
Delaware, 575 F. Supp. 2d 571, 590–92 (D. Del. 2008) (college student’s
‘‘racist, sexist, homophobic, insensitive, degrading [online writings that]
contain graphic descriptions of violent behavior,’’ such as raping and murder-
ing women ‘‘like ‘[O.J.] Simpson’ and kill[ing] through his black gloves,’’
were not true threats because, although they were ‘‘sophomoric, immature,
crude and highly offensive in an alleged misguided attempt at humor or
parody,’’ they were not directed to ‘‘specific individuals, a particular group
or even to women on . . . campus,’’ and were visible on a public website
for more than one year); State v. Metzinger, 456 S.W.3d 84, 96–97 (Mo. App.
2015) (tweets about sending pressure cookers to Boston and references to
Boston Marathon bombing were ‘‘tasteless and offensive’’ but not true threats
when context, including hashtags about 2013 World Series and St. Louis
Cardinals, ‘‘reveal that they were made in the context of [a] sports rivalry,
an area often subject to impassioned language and hyperbole’’); C.G.M., II
v. Juvenile Officer, 258 S.W.3d 879, 880–83 (Mo. App. 2008) (twelve year
old juvenile’s statement to friend that ‘‘ ‘he may get dynamite from his dad
for his birthday’ ’’ and asking if he ‘‘ ‘wanted to help him blow up the school’ ’’
was not true threat when friend did not fear that threat would be carried
out or that juvenile would get dynamite for his birthday, principal did not
learn of statement until five months later, and had no concerns about safety);
J.S. v. Bethlehem Area School District, supra, 657–59 (applying Watts and
concluding that middle school student’s posting on his ‘‘ ‘Teacher Sux’ ’’
web page, which asked ‘‘why [the teacher] should die, show[ing] a picture
of [the teacher’s] head severed from her body and solicit[ed] funds for a
hitman,’’ was not true threat but, instead, was ‘‘sophomoric [and] degrading’’
humor when considered in ‘‘full context,’’ including comedic and profane
references, comparison of teacher to Adolf Hitler, lack of forwarding address
for solicitation of ‘‘$20 to help pay for the hitman,’’ humorous reaction of
viewers, absence of direct communication to teacher, inaction by school
officials for ‘‘extended time period,’’ and lack of any reason to believe that
student had ability to carry out threats).
17
At the on-the-record status conference, which the trial court had con-
vened for scheduling purposes in order to expedite a decision in this matter
before the spring semester, the parties confirmed that, in light of the plain-
tiff’s withdrawal of his monetary claims against the state, there was no
additional evidence for the court to hear subsequent to the hearing on the
plaintiff’s motion for a preliminary injunction. Counsel for both parties
confirmed that summary judgment was not appropriate given factual issues
relevant to the due process claim, but also agreed that there were no out-
standing factual issues with respect to the first amendment claim, which
the plaintiff’s attorney argued ‘‘remains clear . . . .’’ The parties then agreed
with the trial court’s determination that ‘‘the record is closed, as far as
evidence is concerned,’’ and that they ‘‘believe that they have adequately
briefed the legal issues and essentially [are] waiting for a decision . . . .’’
18
Specifically, the plaintiff repeatedly denied making the statements at
issue in this case, arguing that the accusations against him were ‘‘entirely
false.’’ The plaintiff repeatedly stated his willingness to wear a body camera
on campus, consistent with the ‘‘multiple cameras’’ that he keeps in one of
his vehicles, as a result of vendettas and false statements that had been
made against him by officers with multiple police departments, which he
believed were the politically motivated result of the ‘‘flying gun that I had
created at my house over the summer.’’
With respect to the specific allegations, Dukes stated that, during his
investigation, the plaintiff had acknowledged having shown digital pictures
of bullets to persons on campus and having discussed keeping ammunition
inside of a vehicle, but denied making hand gestures in the form of a gun,
having a ‘‘hit list,’’ or referring to ‘‘anyone being his number one target.’’
The plaintiff also stated during the investigation that one of the complaining
students made up the allegations in an attempt to have him expelled from
school. The plaintiff declined to question Dukes during the hearing.
During his own statement to the hearing panel, the plaintiff acknowledged
having taken a picture of a bullet in one of his vehicles and explained that
it was the result of having to search that vehicle for knives and ammunition
to ensure compliance with university rules. The plaintiff denied making the
shooting gestures with his hand, except for a ‘‘few occasions’’ on which
one other student made them ‘‘in reply to me or has initiated [similar ges-
tures] with me because I’m always talking about guns . . . .’’ The plaintiff
stated that his remarks about the Oregon shooting were not that ‘‘they won
or anything like that’’ but ‘‘essentially’’ that ‘‘the Oregon shooting’s going to
be the one discussed in the media because it was a larger shooting than
Newtown.’’ The plaintiff then denied saying that he ‘‘should shoot up the
school’’ during testing of the school alarm system, stating that ‘‘I had not
said anything to that effect. What I had said is imagine if there was an actual
emergency where they needed to do it or have used it for real at this time
because, you know, it’s already being used. So if you had to use it for some
reason, not suggesting that there would be any reason, but if you had
to use it for some reason, how would you go about communicating the
emergency.’’ The plaintiff then stated that he showed off the picture of the
bullet because he’s ‘‘very political’’ and wanted to make the point that gun
control legislation had the absurd result of requiring his expulsion for having
ammunition in the vehicle, even if he had nothing with which to fire it.
Finally, the plaintiff argued that he viewed one complainant’s allegations
as politically motivated given what the plaintiff had thought was friendly
‘‘political banter’’ in the student center about topics such as gun control or
health care.
19
We acknowledge the plaintiff’s argument that, ‘‘[r]eviewing the record
as a whole, other statements [therein] indicate the statements were a joke.’’
He cites his ‘‘quippish slip [during his opening statement to the hearing
panel] comparing the president of the association of schools to a kind of
monarch,’’ as a ‘‘faux slipup [that] evinces the nuanced intellectual basis
for his humor, the libertarian ben[t] that is the motive for the humor, and
his dry delivery.’’ This is consistent with the plaintiff’s other argument that
his statements were akin to Lenny Bruce’s satiric observations, insofar as
guns were one of his hobbies, he was ‘‘politically minded’’ and always up
for a debate on political topics, including the right to bear arms, and had
‘‘found the bullets discussed in his vehicle while cleaning it out to comply
with school rules’’ and ‘‘showed a picture of a bullet as part of a thoughtful
meditation on the substance of gun rights . . . .’’ The plaintiff further argues
that this sense of humor was ‘‘consistent with statements [that his father]
made to police,’’ noting that the plaintiff was ‘‘knowledgeable about many
things and guns in particular’’ but had to be counseled ‘‘ ‘about saying the
appropriate things during conversation.’ ’’ Although this evidence might well
bear on the plaintiff’s subjective intent in making the statements at issue,
the trial court aptly noted that such evidence is immaterial, insofar as
whether the statements constituted a true threat is an objective inquiry not
requiring evidence of intent to threaten. See State v. Taupier, supra, 330
Conn. 173.
20
We emphasize that our true threat analysis in the present case is limited
to this record as reflected by the lower burden of proof in civil cases, and,
consistent with the decision of the state’s attorney not to prosecute in this
case; see footnote 5 of this opinion; we take no position on whether the
facts of the present case would have provided a sufficient basis for criminal
liability under several potentially applicable statutes; see, e.g., State v. Tau-
pier, supra, 330 Conn. 154; particularly given the much higher burden of
proof in criminal cases. See In re George T., 33 Cal. 4th 620, 639, 93 P.3d
1007, 16 Cal. Rptr. 3d 61 (2004) (‘‘[A] [m]inor’s reference to school shootings
and his dissemination of his poem in close proximity to the Santee school
shooting no doubt reasonably heightened the school’s concern that [the]
minor might emulate the actions of previous school shooters. Certainly,
school personnel were amply justified in taking action following [a fellow
student’s] e-mail and telephone conversation with her English teacher, but
that is not the issue before us. We decide . . . only that [the] minor’s poem
did not constitute a criminal threat.’’).
21
Some prominent commentators are concerned that ‘‘[c]urrent college
students are often ambivalent, or even hostile, to the idea of free speech
on campus,’’ and have expressed ‘‘surprise’’ about ‘‘how much the students
wanted campuses to stop offensive speech and trusted campus officials to
have the power to do so. A 2015 survey by the Pew Research Institute
[indicated] that four in ten college students believe that the government
should be able to prevent people from publicly making statements that are
offensive to minority groups. The most recent studies demonstrate that
students continue to wrestle with how best to value free speech and inclusi-
vity, with more than half of students valuing diversity and inclusivity above
free speech, more than half supporting bans on hate speech, and almost a
third supporting restrictions on offensive speech.’’ (Footnote omitted.) E.
Chemerinsky, ‘‘The Challenge of Free Speech on Campus,’’ 61 Howard L.J.
585, 588 (2018); see also, e.g., M. Papandrea, ‘‘The Free Speech Rights
of University Students,’’ 101 Minn. L. Rev. 1801, 1803 (2017) (Rejecting
application of government speech doctrine with respect to student speech
because, ‘‘[a]though it should be clear that students, particularly college
and university students, do not speak for the university, institutions of
higher education are increasingly caving to various constituencies inside
and outside of the university who believe that they do. Rather than appreciat-
ing the traditional role of the university as the quintessential marketplace
of ideas, students, alumni, and the public frequently appear to believe that
whenever a school tolerates offensive speech, the university is endorsing
those viewpoints.’’).
Given this significant debate with respect to the vitality of freedom of
speech on twenty-first century college campuses, it is understandable that
the plaintiff attempts to frame his statements and gestures as those of a
provocateur arguing in support of the right to bear arms, with his expulsion
the result of offending the sensibilities of the university’s snowflakes. See
Doe v. Rector & Visitors of George Mason University, 149 F. Supp. 3d 602,
627 (E.D. Va. 2016) (‘‘In short, controversial and sometimes offensive ideas
and viewpoints are central to the educational mission of universities. It
follows that university students cannot thrive without a certain thickness
of skin that allows them to engage with expressions that might cause distress
or discomfort . . . . The coddling of the nation’s young adults by proscrib-
ing any expression on a university campus that is likely to be distressing
or discomforting does not protect the work . . . of the school; such rules
frustrate the mission of the university.’’ [Emphasis in original; internal quota-
tion marks omitted.]). The record of the present case is, however, squarely
devoid of any evidence supporting that interpretation of the facts and,
instead, supports the finding that the plaintiff’s conduct was, in fact, reason-
ably interpreted as a true threat. See also footnotes 17 and 18 of this opinion
and accompanying text.
22
We note that the material and substantial disruption of school activities
standard articulated in Tinker v. Des Moines Independent Community
School District, 393 U.S. 503, 513, 89 S. Ct. 733, 21 L. Ed. 2d 731 (1969), has
been used, in connection with the physical safety analysis of the more recent
‘‘BONG HiTS 4 JESUS’’ case; Morse v. Frederick, 551 U.S. 393, 397, 407–408,
127 S. Ct. 2618, 168 L. Ed. 2d 290 (2007); to permit administrative response
to threats in both public universities and high schools without running
afoul of the first amendment, even without consideration of whether those
threatening statements rise to the level of true threats. See, e.g., Ponce v.
Socorro Independent School District, supra, 508 F.3d 772 (‘‘[W]hen a student
threatens violence against a student body, his words are as much beyond
the constitutional pale as yelling ‘fire’ in crowded theater . . . and such
specific threatening speech to a school or its population is unprotected by
the [f]irst [a]mendment. School administrators must be permitted to react
quickly and decisively to address a threat of physical violence against their
students, without worrying that they will have to face years of litigation
second-guessing their judgment as to whether the threat posed a real risk
of substantial disturbance.’’ [Citation omitted.]); Wisniewski v. Board of
Education, 494 F.3d 34, 38 (2d Cir. 2007) (‘‘Although some courts have
assessed a student’s statements concerning the killing of a school official
or a fellow student against the ‘true threat’ standard of Watts . . . we think
that school officials have significantly broader authority to sanction student
speech than the Watts standard allows. With respect to school officials’
authority to discipline a student’s expression reasonably understood as
urging violent conduct, we think the appropriate [f]irst [a]mendment stan-
dard is the one set forth by the Supreme Court in Tinker . . . .’’ [Citations
omitted.]), cert. denied, 552 U.S. 1296, 128 S. Ct. 1741, 170 L. Ed. 2d 540
(2008); Doe v. Rector & Visitors of George Mason University, 132 F. Supp.
3d 712, 729–30 (E.D. Va. 2015) (after concluding that speaker’s threat to
shoot himself was not true threat because it did not threaten harm to his
ex-girlfriend or ‘‘to anyone else besides’’ himself, court permitted additional
discovery and deferred consideration of claim pending development of
record regarding whether text message at issue originated on or off campus,
and whether university interests as expressed in code of conduct justified
expelling student); J.S. v. Bethlehem Area School District, 569 Pa. 638,
673–75, 807 A.2d 847 (2002) (concluding that offensive student website,
although not true threat, caused ‘‘actual and substantial disruption of the
work of the school,’’ thus permitting school to impose disciplinary action
pursuant to Tinker).
The defendants’ brief and oral argument before this court initially sug-
gested that they asked us to apply the Tinker standard in a college setting,
which presents a significant question of constitutional law given some poten-
tially unclear language and quotations of Tinker in, among other cases,
Healy v. James, supra, 408 U.S. 189. See Tatro v. University of Minnesota,
816 N.W.2d 509, 519 n.5 (Minn. 2012) (declining to consider issue but noting
that ‘‘controversy exists over whether the free speech standards that devel-
oped in K-12 school cases apply in the university setting’’); K. Sarabyn, ‘‘The
Twenty-Sixth Amendment: Resolving the Federal Circuit Split over College
Students’ First Amendment Rights,’’ 14 Tex. J. C.L. & C.R. 27, 32 (2008)
(discussing circuit split and arguing that twenty-sixth amendment to United
States constitution instituted ‘‘age-based bright line’’ for full citizenship for
eighteen year olds that ‘‘creates, for the purposes of free speech, a corres-
ponding bright line between primary and secondary schools on the one
hand, and universities on the other’’); compare McCauley v. University of
the Virgin Islands, 618 F.3d 232, 247 (3d Cir. 2010) (‘‘Public universities
have significantly less leeway in regulating student speech than public ele-
mentary or high schools. Admittedly, it is difficult to explain how this
principle should be applied in practice and it is unlikely that any broad
categorical rules will emerge from its application. At a minimum, the teach-
ings of Tinker . . . and other decisions involving speech in public elemen-
tary and high schools, cannot be taken as gospel in cases involving public
universities.’’), with Yeasin v. Durham, 719 Fed. Appx. 844, 852 (10th Cir.
2018) (observing that language from Healy ‘‘suggests that the Supreme Court
believes that [Tinker’s material and substantial disruption] test applies in
the university setting’’), and Ward v. Polite, 667 F.3d 727, 733–34 (6th Cir.
2012) (suggesting that such standards can account in practice for differing
levels of maturity between college and public school students). Having
concluded that the trial court correctly determined that the plaintiff’s state-
ments and gestures were a true threat, we leave this issue to another day,
particularly given the defendants’ subsequent clarification at oral argument
that they cited Healy in their brief only for the proposition that the college
setting is a unique part of the factual ‘‘constellation’’ that informs whether
the plaintiff’s statements may be objectively understood to be a true threat.