## Facts

- Douglas D., an eighth-grade student, was assigned to begin a creative-writing story titled “Top Secret” for classmates to continue.
- After being removed from class for misbehavior and told to work in the hallway, Douglas returned and handed his English teacher (“Mrs. C.”) his writing.
- The writing portrayed a character resembling the teacher being violently attacked and killed by a student character.
- The teacher read the story, became frightened, and viewed it as a threat that Douglas might harm her if disciplined again.
- The assistant principal confronted Douglas; he denied intending a threat and apologized.
- The school imposed an in-school suspension.
- About a month later, the State filed a juvenile delinquency petition alleging disorderly conduct under Wis. Stat. § 947.01 based on submitting a “death threat” under circumstances tending to cause a disturbance.

## Issues

1. Whether Wis. Stat. § 947.01 may be construed to reach purely written speech, even if no actual disturbance occurs.
2. If the statute can reach written speech, whether the First Amendment (and the coextensive Wisconsin free-speech guarantee) bars prosecution because the writing is protected expression rather than an unprotected “true threat.”

## Decision

- The Wisconsin Supreme Court reversed the court of appeals and vacated the delinquency adjudication.
- The court held that purely written speech can, in principle, constitute disorderly conduct under § 947.01 even without an actual disturbance.
- The court nevertheless held that Douglas’s writing, in context, was protected by the First Amendment and therefore could not be the basis for a disorderly conduct prosecution.

## Legal Principles

- To prove disorderly conduct under Wis. Stat. § 947.01, the State must establish: (1) qualifying disorderly conduct (e.g., violent, abusive, indecent, profane, boisterous, unreasonably loud, or similar conduct) and (2) circumstances in which the conduct tends to cause or provoke a disturbance.
- The statute’s application depends on the combination of the conduct and the surrounding circumstances; it is not limited to physical or loud behavior and may extend to expressive activity, including written words.
- Constitutional limits apply when § 947.01 is used against expression; protected speech may not be punished unless it falls within an unprotected category, including a “true threat.”
- Whether speech is a “true threat” is assessed in context; a disturbing or violent theme in a school assignment is not, by itself, enough to remove First Amendment protection.
- The free-speech protections of the First Amendment and Article I, § 3 of the Wisconsin Constitution were treated as equivalent for purposes of this analysis.

## Conclusion

The court recognized that Wisconsin’s disorderly conduct statute can cover purely written expression in appropriate circumstances, but it vacated Douglas’s delinquency adjudication because his creative-writing submission, considered in context, was protected speech and not a punishable true threat.


In re Interest of Douglas D., 243 Wis. 2d 204, 626 N.W.2d 725 (Wis. 2001)