author:
SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.
      JON P. WILCOX, J.

text:
    State of Wisconsin, Plaintiff-Respondent, v. Murle E. Perkins, III, Defendant-Appellant-Petitioner.
    Supreme Court

      No. 99-1924-CR.

      Oral argument December 1, 2000.

    Decided May 16, 2001.

    2001 WI 46
    (Also reported in 626 N.W.2d 762.)

      For the defendant-appellant-petitioner there were briefs and oral argument by William E. Schmaal, assistant state public defender.
    For the plaintiff-respondent the cause was argued by Thomas J. Balistreri, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE.

¶ 1. This is a review of a published decision of the court of appeals, State v. Murle E. Perkins, III, 2000 WI App 137, 237 Wis. 2d 313, 614 N.W.2d 25, affirming an order of the Circuit Court for Jackson County, Michael McAlpine, Circuit Court Judge. The circuit court order denied the motion of the defendant, Murle E. Perkins III, for postconviction relief from a conviction for threatening a judge in violation of Wis. Stat. § 940.203(2) (1997-98).

¶ 2. The question of law presented in this case is whether a new trial should be granted because the jury instruction relating to the crime of threatening a judge failed to shield the defendant from a conviction based on constitutionally protected speech. We conclude that the jury instruction in this case was inadequate. The real controversy in this case has not been fully tried and the defendant is entitled to a new trial. We therefore reverse the decision of the court of appeals and remand the cause for further proceedings not inconsistent with this opinion.

¶ 3. The facts of this case, although somewhat conflicting, are set forth below. On March 25, 1998, after spending the afternoon in a bar, the defendant called his sister-in-law, Peggy Perkins, to ask for a ride home. Ms. Perkins testified that the defendant was intoxicated and depressed because he had recently broken up with his girlfriend and he missed his children. Ms. Perkins drove the defendant to the residence of his parents, who were out of town. Ms. Perkins then returned to her nearby home.

¶ 4. A few hours later, Ms. Perkins heard a loud bang that sounded like a gunshot coming from the parents' residence. She called the defendant to see if he was all right, and he laughed and told her, "I haven't killed myself yet." She then visited the defendant and found Rim calm, but still intoxicated and depressed. The defendant told her that he would call the police before killing himself so that the police could remove his body before his parents arrived home.

¶ 5. Additional testimony from friends of the defendant established that he had called at least one friend that evening to say good-bye. One of these friends contacted the police, who visited the parents' residence, where they found the defendant and his sister-in-law.

¶ 6. One of the police officers testified at trial regarding his ensuing thirty-minute conversation with the defendant. During the course of this conversation, the defendant appeared to him to be intoxicated and depressed, but calm. According to the officer, the defendant stated that he had fired a gun that evening in the hopes that someone would come to talk to him. The defendant said he was thinking about killing himself, but that he did not have a specific plan. The officer asked the defendant what he would use if he were going to kill himself; the defendant grinned and said that he would use a shoestring. Later in the conversation, the defendant stated that if he were going to kill himself, it would be easy, and gestured toward a gun cabinet belonging to his parents.

¶ 7. The officer continued to question the defendant, and the defendant eventually stated that if he were going to kill himself, he would first kill Judge Robert W. Radcliffe, whom he referred to as a "brain-dead son-of-a-bitch." It was established at trial that Judge Radcliffe had recently held a contempt hearing in which the defendant had been ordered to pay $50,000 in overdue child support.

¶ 8. According to the testimony at trial, the conversation between the officer and the defendant continued calmly for several more minutes, when the officer decided to take the defendant to a hospital under an emergency chapter 51 detention. The officer believed that the defendant "was possibly a danger to himself and possibly others."

¶ 9. The defendant was later charged with one count of threatening a judge in violation of Wis. Stat. § 940.203(2). At trial, the defendant's mother testified that the defendant did not have access to the guns in the locked gun cabinet. The defendant testified that he had not shot a gun that evening, but rather had set off a large firecracker. The defendant also testified that his statement regarding Judge Radcliffe was intended as a hypothetical to show that he had no intention of killing himself. The defendant denied that he had intended to threaten or harm Judge Radcliffe.

¶ 10. At the close of the evidence, the jury instructions included an instruction in accordance with Wisconsin Jury Instructions — Criminal 1240, Battery or Threat to a Judge, § 940.203. The defendant did not object to this instruction. The jury returned a verdict of guilty on the count of intentional threat to a judge. The defendant filed a motion for postconviction relief, which the circuit court denied. The court of appeals affirmed the order of the circuit court.

¶ 11. The State argues that the defendant has waived the right to seek review of any error in the jury instructions because the defendant failed to object to the jury instructions at trial. Wisconsin Stat. § 805.13(3) provides that "[fjailure to object at the conference [about jury instructions] constitutes a waiver of any error in the proposed instructions or verdict."

¶ 12. We agree with the State that the defendant has waived his right of review of any allegedly erroneous jury instruction. Nevertheless, this court may reverse a conviction based on a jury instruction regardless of whether an objection was made, when the instruction obfuscates the real issue or arguably caused the real controversy not to be fully tried. Reversal is available under Wis. Stat. § 751.06 at the discretion of this court.

¶ 13. Along with this statutory authority to reverse a judgment on the basis of a waived error, this court has the inherent authority to review a waived error. In previous cases addressing this inherent authority to review a waived error, we have noted that this court "undoubtedly has the power, but ordinarily will not exercise it. The question is one of administration, not of power." When we review an alleged error under our inherent authority, "we do so because the alleged error in issue has some substantial significance in our institutional law-making responsibility as set forth in the statute and constitution."

¶ 14. The alleged error in this case — in the jury instruction relating to the crime of threatening a judge — has substantial significance in our body of statutory and constitutional law. Furthermore, if the jury instruction was erroneous, it is probable that the "instruction obfuscate[d] the real issue or arguably caused the real issue not to be tried [and] reversal would be available in the discretion" of this court. We consequently conclude that this court should exercise its discretion to review the jury instruction relating to the elements of the crime of threatening a judge to determine whether the jury instruction is consistent with the constitutional right to freedom of speech.

¶ 15. We therefore exercise our discretion to review the merits of the defendant's objections to the jury instruction.

HH I — I I — I

¶ 16. We begin our review of the jury instruction given in this case on the elements of the crime of threatening a judge by examining the First Amendment case law relating to statutes criminalizing threats to persons.

¶ 17. This court agrees with the State and the defendant that some threatening words are protected speech under the First Amendment. Only a "true threat" is constitutionally punishable under statutes criminalizing threats. The phrase "true threat" is a term of art used by courts to refer to threatening language that is not protected by the First Amendment.

¶ 18. In R.A.V. v. City of St. Paul, 505 U.S. 377, 388 (1992), the U.S. Supreme Court offered three rationales for denying First Amendment protection to threats of violence: "protecting individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur." The leading case distinguishing between punishable and protected threatening speech is Watts v. United States, 394 U.S. 705 (1969). In that case the U.S. Supreme Court reviewed Watts's conviction for violating a federal statute proscribing threats against the president of the United States. Watts was convicted for "threatening" President Lyndon Johnson at an antiwar rally, where he said:

They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B. J.

Watts, 394 U.S. at 706.

¶ 19. In reversing the defendant's conviction for threatening the president, the U.S. Supreme Court evaluated the federal anti-threat statute in light of the First Amendment rights at stake. The Court determined that the statute was constitutional given the "valid, even. . .overwhelming, interest in protecting" the president. Watts, 394 U.S. at 707. However, despite the strength of this interest, the Court held that a statute criminalizing "pure speech" must distinguish between "true threats" and constitutionally protected speech. Id. >

¶ 20. In Watts, the Court concluded that Watts's statement was not a true threat but rather "political hyperbole." Watts, 394 U.S. at 708. Thus, Watts's only offense was "a kind of very crude offensive method of stating a political opposition to the President." Id.

¶ 21. The Watts court imposed a clear constitutional limit on the government's ability to punish threatening speech. Watts did not, however, "fashion a bright-line test for distinguishing a true threat from protected speech."

¶ 22. As a result, federal and state courts that have considered the issue of threatening speech have apparently created several tests to discern whether threatening language constitutes protected or unprotected speech. The tests are an attempt to balance freedom of speech with the public interest in prohibiting threatening statements that cause substantial harm by instilling fear.

¶ 23. The Second Circuit Court of Appeals wrote that a "true threat" must be "on its face and in the circumstances in which it is made so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution." United States v. Kelner, 534 F. 2d 1020, 1027 (2d Cir. 1976). In contrast to the Second Circuit, other courts have said that the absence of explicitly threatening language does not preclude the finding of a threat and that a conditional threat is nonetheless a threat.

¶ 24. Several courts have adopted an objective reasonable person standard to determine a "true threat." The objective standard asks whether the statement could reasonably be interpreted as a serious expression of an intention to inflict bodily harm. The federal and state cases applying an objective standard are, however, divided about whether to focus the test for reasonableness on the person who makes the threatening statement, the person who hears the threatening statement, or both.

¶ 25. For example, some courts approach the objective standard from the perspective of the speaker, asking whether the statement was made "in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or take the life of [another]." The First Circuit Court of Appeals adopted this speaker-based objective standard, reasoning that it is untenable to apply a standard guided from the perspective of a listener because a defendant might be convicted for making an ambiguous statement that a listener might find threatening because of events not within the knowledge of the defendant. United States v. Fulmer, 108 F.3d 1486, 1491 (1st Cir. 1997).

¶ 26. One question raised by the speaker-based objective standard is whether the reference to "those to whom the maker communicates the statement" contemplates the subjective view of an actual listener or the objective view of a reasonable listener. Language in some opinions adopting the speaker-based objective standard indicates that the likely effect on the listener is judged from the standpoint of a reasonable listener.

¶ 27. In contrast to the jurisdictions using a speaker-based objective standard, which may or may not implicitly incorporate the view of a reasonable listener, other jurisdictions appear to approach the objective standard explicitly from the standpoint of the listener only, requiring that "[t]he prohibited statements must be understandable as a threat by a reasonable person of ordinary intelligence." A benefit of this listener-based objective standard is that it explicitly states that the determination of whether the language is a true threat does not involve the reaction of a uniquely sensitive person or a person whose reaction is based on special information not available to the defendant.

¶ 28. Finally, at least one jurisdiction apparently incorporates both speaker- and listener-based elements of reasonableness, holding that a true threat exists when "a reasonable person would foresee that an objective rational recipient of the statement would interpret its language to constitute a serious expression of intent to harm." This standard requires that a reasonable person uttering the statement would foresee that a reasonable person listening to the statement would interpret the statement as a serious expression of an intent to harm. The benefit of this standard is that it considers the standpoint of both a reasonable speaker and a reasonable listener, which seems the best approach to evaluating the nature of a communication.

¶ 29. This court has considered these cases and concludes that the test for a true threat that appropriately balances free speech and the need to proscribe unprotected speech is an objective standard from the perspectives of both the speaker and listener. A true threat is determined using an objective reasonable person standard. A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.

¶ 30. This test for a "true threat" may, of course, need modification to fit the particular statute that criminalizes threatening speech. In this case, for example, the harm threatened is bodily harm. Other statutes may criminalize speech that threatens different harms.

¶ 31. In applying the objective test we have set forth herein, the trier of fact should consider the full context of the statement, including all relevant factors that might affect how the statement could reasonably be interpreted. For example, the Eighth Circuit's recent decision in United States v. Hart, 212 F.3d 1067 (8th Cir. 2000), set forth various factors for consideration in evaluating the circumstances of a threatening statement under the speaker- and listener-based objective test:

[Flactors to be taken into consideration when making this determination [include]: how the recipient and other listeners reacted to the alleged threat, whether the threat was conditional, whether it was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim on other occasions, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.

Hart, 212 F.3d at 1071 (citation omitted).

IV

¶ 32. We now turn to the jury instruction used in this case, to determine whether this instruction was sufficient for First Amendment purposes. The defendant argues that the jury instruction did not define the word "threat," that is, it did not adequately explain to the jury the difference between a "true threat" and protected free speech. Thus, argues the defendant, the conviction violated his right to free expression and his conviction is not constitutionally sound.

¶ 33. The jury instruction used in this case, patterned on Wisconsin Jury Instructions — Criminal 1240, explains that in order for the jury to render a guilty verdict it must find that six elements are present: (1) the defendant "threatened to cause bodily harm to" a person; (2) the threatened person "was a judge"; (3) the defendant "knew that [the threatened person] was a judge"; (4) the judge "was acting in an official capacity" or the threat "was in response to an action taken in the judge's official capacity"; (5) "the defendant threatened bodily harm without the consent of' the person threatened; and (6) "the defendant acted intentionally."

¶ 34. The jury in this case was instructed as follows:

Section 940.203 of the Criminal Code of Wisconsin, is violated by one who intentionally threatens to cause bodily harm to the person of any judge where at the time of the threat the person knows that the victim is a judge, the threat is in response to an action taken in the judge's official capacity, and there is no consent by the person threatened.
Before you may find the defendant guilty of this offense, the State must prove by evidence which satisfies you beyond a reasonable doubt that the following six elements were present.
The first element requires that the defendant threatened to cause bodily harm to Robert W. Radclifie.
The second element requires that Robert Radclifie was a judge.
A circuit court judge is a judge.
The third element requires that the defendant knew that Robert W. Radclifie was a judge.
The fourth element requires that the threat was in response to an action taken in the judge's official capacity. The responsibilities of a judge include making a determination which results in the issuance of an Order regarding back child support.
The fifth element requires that the defendant threatened bodily harm without the consent of Robert W. Radclifie. "Without consent" means that there was no consent in fact.
The sixth element requires that the defendant acted intentionally. This requires that the defendant acted with the mental purpose to threaten bodily harm to another human being.
You cannot look into a person's mind to find out intent. You may determine such intent directly or indirectly from all the facts in evidence concerning this offense. You may consider any statements or conduct of the defendant which indicate state of mind. You may find intent to threaten bodily harm from such statements or conduct, but you are not required to do so. You are the sole judges of the facts, and you must not find the defendant guilty unless you are satisfied beyond a reasonable doubt that the defendant intended to threaten bodily harm.
If you are satisfied beyond a reasonable doubt that the defendant intentionally threatened to cause bodily harm to Robert W. Radcliffe, that the threat was in response to an action taken in the judge's official capacity, that the defendant knew that the victim was a judge, that Robert W. Radcliffe did not consent to the threatening of bodily harm, and that the defendant intended to threaten bodily harm to Robert W. Radcliffe, you should find the defendant guilty of the first count of the information.
If you are not so satisfied, you must find the defendant not guilty.

¶ 35. Two elements set forth in the jury instructions are relevant for the purposes of our discussion. Under the first element, the jury was required to find that the defendant threatened to cause bodily harm to Robert W. Radcliffe. No further instruction was given to tell the jury what language would be sufficient to find that the defendant "threatened to cause bodily harm."

¶ 36. Under the sixth element, the jury was required to find that the defendant acted intentionally. The jury was instructed with regard to the sixth element that acting intentionally meant that "the defendant acted with the mental purpose to threaten bodily harm to another human being." This instruction told the jury to examine the subjective intent of the defendant.

¶ 37. Because the instructions did not define the first element, namely, whether the defendant "threatened to cause bodily harm," the jury was not instructed that it had to apply an objective test in the first element to determine whether the defendant had "threatened to cause bodily harm," that is, that a speaker would reasonably foresee that a listener would reasonably interpret the statement to be a serious expression of a purpose to inflict bodily harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views, or other similarly protected speech.

¶ 38. The State acknowledges that an objective standard is constitutionally required to define threat in order to criminalize only "true threats," that is, threats not constitutionally protected under the First Amendment. The State also concedes that the instruction given on the elements of the crime of intentional threat to a judge was not perfect and could be improved. The State urges, however, that the jury instruction in conjunction with other aspects of the trial was sufficient to ensure that the defendant's conviction was not based on protected speech.

¶ 39. The State offers several arguments to support its position. First, it- asserts that the jury would have relied on the common understanding of the word "threat" as referring to an expression of intent to inflict injury, damage, or harm on another, as opposed to jest or hyperbole. Second, the State contends that the sixth element, requiring the jury to find that the defendant acted intentionally, means that the jury must have found that the defendant spoke with the mental purpose of expressing an intent to inflict bodily harm, as opposed to hyperbole or jest. Third, the State argues that the testimony and closing arguments in this case adequately informed the jurors that they could convict the defendant only if they found that the defendant made a true threat to kill Judge Radcliffe.

¶ 40. We reject the State's argument that other aspects of the trial adequately informed the jury that it could convict the defendant only if it found that the defendant made a true threat. A proper jury instruction is a crucial component of the fact-finding process. State v. Howard, 211 Wis. 2d 269, 290, 564 N.W.2d 763 (1997). The validity of the jury's verdict depends on the completeness of the instructions. State v. Dodson, 219 Wis. 2d 65, 87, 580 N.W.2d 181 (1998).

¶ 41. Arguments by counsel cannot substitute for an instruction by the court. Arguments by counsel are likely to be viewed as statements of advocácy, whereas a jury instruction is a definitive and binding statement of law. Moreover, in this case, the jury was expressly instructed to base its verdict on the court's instructions rather than on the attorneys' arguments.

¶ 42. Likewise, the defendant's testimony that he did not intend a threat cannot make up for the deficiency of the jury instruction. The defendant's testimony raised a factual dispute concerning his intent and his exact words to the officer.

¶ 43. We conclude that the testimony and closing arguments in this case were insufficient to overcome the deficiencies in the jury instruction on the elements of the crime of intentional threat to a judge. In this case the jury instruction was an incomplete statement of the law. The danger in this case is that the instruction gave the jury no definition of the essential element of a "threat" and that the jury may have used the common definition of "threat," thereby violating the defendant's constitutional right to freedom of speech. The common definition of threat is an expression of an intention to inflict injury on another. The definition of threat for the purposes of a statute criminalizing threatening language is much narrower. Therefore a reasonable likelihood exists that the jury interpreted and applied the instruction to the detriment of the defendant's constitutional right to freedom of speech.

¶ 44. We have no reason to believe that the jury would have added the necessary elements to the instruction it received on the elements of the crime of intentional threat to a judge and thus would have applied an interpretation of the statute that withstands constitutional scrutiny. If the jurors were following the jury instruction they would have concentrated simply on the subjective intent of the defendant to make the threatening statement and would have failed to consider whether a speaker would reasonably foresee that a listener would reasonably interpret the defendant's statement to be a serious expression of a purpose to inflict bodily harm, as distinguished from hyperbole, jest, expressions of political distaste, or other similarly protected speech.

¶ 45. Indeed, the jury instruction in this casé stands in stark contrast to the suggested federal jury instruction for the federal crime of threatening the president, which sets forth a distinction between a true threat and protected speech. The jury instruction used in this case also stands in stark contrast to the jury instructions provided in several of the true threat cases cited herein. It is apparent from these cases that other jurisdictions provide an extensive jury instruction that follows’the test for a true threat applied in the respective jurisdiction.

¶ 46. For the reasons set forth, we conclude that the jury instruction on the elements of the crime of intentional threat to a judge should, to comply with constitutional requirements, contain a clear definition of a threat based on the true threat standard we set forth herein.

¶ 47. The defendant notes that this court must determine, as a matter of law, the sufficiency of the evidence to support conviction even if there are grounds to reverse the judgment of conviction and remand for a new trial. If the evidence is insufficient to sustain a conviction, the federal and state constitutional guarantees against double jeopardy may preclude remanding the case for a new trial.

¶ 48. Courts have viewed the question whether an alleged statement constitutes a true threat, unprotected by the First Amendment, as an issue of fact for the fact finder unless a court can determine that the evidence is insufficient, as a matter of law, to support the defendant's conviction under the statute. Reviewing the evidence presented to the jury in the light most favorable to sustaining the conviction, we conclude that a jury properly instructed could be convinced beyond a reasonable doubt that the State proved all the elements of the crime of intentional threat to a judge.

¶ 49. The deficiency in the jury instruction on the elements of the crime of intentional threat to a judge in the present case leads us to conclude that the controversy was not fully tried. Accordingly, pursuant to Wis. Stat. § 751.06, we reverse the decision of the court of appeals and the order of the circuit court and remand the cause to the circuit court for proceedings not inconsistent with this opinion.

By the Court. — The decision of the court of appeals is reversed and the cause remanded.

JON P. WILCOX, J.

¶ 50. (concurring). I concur with the majority. However, I write separately to underscore the constitutional framework that governs this review.

¶ 51. This case involves far more than the limits that the First Amendment of the United States Constitution and Article I, Section 3 of the Wisconsin Constitution place on the State's authority to punish speech. It also implicates the constitutional guarantees of due process and the right to a jury trial.

¶ 52. The Due Process Clause in the Fourteenth Amendment of the United States Constitution protects a criminal defendant "against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which [the defendant] is charged." In re Winship, 397 U.S. 358, 364 (1970). Closely tied to this guarantee is the right to a jury trial, embodied in the Jury Clauses of the Sixth Amendment of the United States Constitution and Article I, Section 7 of the Wisconsin Constitution. In combination, these constitutional protections ensure a criminal defendant the right to be free from conviction unless a jury finds beyond a reasonable doubt that he or she violated every element of the alleged offense. "Thus, although a judge may direct a verdict for the defendant if the evidence is legally insufficient to establish guilt, he [or she] may not direct a verdict for the State, no matter how overwhelming the evidence." Sullivan v. Louisiana, 508 U.S. 275, 277 (1993).

¶ 53. This right would ring hollow if courts were permitted to uphold convictions based on jury instructions that fail to set forth all the elements of the particular crime at issue. Courts instruct juries to decide cases based on the law set forth in the jury instructions. See, e.g., Wis JI — Criminal 100 (Opening Instructions) ("[Y]ou must base your verdict on the law I give you in these instructions."). As this court has explained, "[p]roper jury instruction is a crucial component of the fact-finding process. The jury must determine guilt or guiltlessness in light of the jury charge, and the validity of that determination is dependent upon the correctness, and completeness of the instructions given." State v. Howard, 211 Wis. 2d 269, 290, 564 N.W.2d 753 (1997) (citation omitted). If a court fails to instruct the jury regarding a key element of the crime at issue, the court effectively removes that element from the jury's consideration. As to that element, then, the jury is precluded from deciding the defendant's guilt or innocence. Id. at 293. Accordingly, to uphold a conviction under such circumstances would be tantamount to directing a verdict in favor of the State on the omitted element: the court, not the jury, is deciding guilt. Pursuant to the Due Process and Jury Clauses, such a result is strictly forbidden.

¶ 54. To be sure, error injury instructions — even constitutional error — can be harmless. Sullivan, 508 U.S. at 278-81. Harmless error analysis, however, looks to the basis on which the jury rested its verdict. Id. at 279.

The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered. . .was surely unattributable to the error. That must be so, because to hypothesize a guilty verdict that was never rendered — no matter how inescapable the findings to support that verdict might be — would violate the jury-trial guarantee.

Id.

¶ 55. As explained above, where jury instructions are devoid of explanation regarding an element of an alleged offense, the instructions effectively preclude the jury from rendering a verdict on that element. In such circumstances, there can be no jury verdict on that particular element and, therefore, harmless error analysis — which analyzes cases in terms of the jury verdict — is inapplicable. Howard, 211 Wis. 2d at 293; see also State v. Avila, 192 Wis. 2d 870, 893A, 532 N.W.2d 423 (1995) ("When a jury does not make a finding of guilty beyond a reasonable doubt on an element of the crime, a court cannot conclude that a deficient jury instruction with regard to that element is harmless error."). Accordingly, jury instructions that fail to set forth all the requisite elements of the charged offense always are grounds for reversal. Howard, 211 Wis. 2d at 293; accord Sullivan, 508 U.S. at 279 ("Although most constitutional errors have been held amenable to harmless-error analysis, some will always invalidate the conviction.").

¶ 56. In the present case, Perkins was convicted for violating Wis. Stat. § 940.203(2) for allegedly threatening a judge. As the majority explains, pursuant to the First Amendment and Article I, Section 3 of the Wisconsin Constitution, the State may not convict a person for uttering threatening words unless that speech is a constitutionally unprotected "true threat." Majority op. at ¶ 17. Thus, a key element to Perkins' alleged offense is that the speech at issue was a true threat.

¶ 57. However, the circuit court did not instruct the jury that, prior to returning a guilty verdict, it must find that Perkins' speech was a true threat. That is, the court failed to instruct the jury regarding a key element to Perkins' alleged offense. The jury consequently was entirely precluded from considering that element. Thus, Perkins' conviction does not rest upon a jury finding beyond a reasonable doubt that he violated every element of the alleged offense.

¶ 58. Indeed, Perkins may be guilty of violating § 940.203(2). The record seems to contain sufficient evidence to support a guilty verdict. However, it is not the province of this court to hypothesize a guilty verdict that, although possibly supported by the record, a jury never rendered. In light of the constitutionally deficient jury instructions at issue, if this court were to uphold Perkins' conviction, it in effect would be upholding a directed verdict in favor of the State on the issue of whether Perkins uttered a true threat. To do so would violate Perkins' constitutional rights to due process and a jury trial. For this reason, this court cannot uphold Perkins' conviction and must remand this case for a new trial.

¶ 59. I am authorized to state that Justice N. PATRICK CROOKS joins this concurrence.

       All subsequent references to the Wisconsin Statutes are to the 1997-98 version unless otherwise noted.

       U.S. Const, amend. I; Wis. Const, art. I, § 3.
      We determine this question of law independently of the circuit court and court of appeals, benefiting from their analyses.
      The defendant raises two other issues that we need not and do not address here: (1) whether the evidence is sufficient to support the conviction, and (2) whether his attorney's failure to stipulate to his prior felony convictions, as allowed by State v. McAllister, 153 Wis. 2d 523, 451 N.W.2d 764 (Ct. App. 1989), constitutes ineffective assistance of counsel.

       Wisconsin Stat. § 940.203(2) provides as follows:
      Whoever intentionally causes bodily harm or threatens to cause bodily harm to the person or family member of any judge under all of the following circumstances is guilty of a Class D felony:
      (a) At the time of the act or threat, the actor knows or should have known that the victim is a judge or member of his or her family.
      (b) The judge is acting in an official capacity at the time of the act or threat or the act or threat is in response to any action taken in an official capacity.
      (c) There is no consent by the person harmed or threatened.
      The defendant was also charged with one count of using a firearm while intoxicated, and one count of being a felon in possession of a firearm. The jury acquitted him of these two weapons charges, and they are not at issue in this review.

       Wisconsin Stat. § 972.11(1) makes § 805.13(3) applicable to criminal proceedings.

         Vollmer v. Luety, 156 Wis. 2d 1, 22, 456 N.W.2d 797 (1990).
      Wisconsin Stat. § 751.06, entitled "Discretionary reversal," provides as follows:
      In an appeal in the supreme court, if it appears from the record that the real controversy has not been fully tried, or that it is probable that justice has for any reason miscarried, the court may reverse the judgment or order appealed from, regardless of whether the proper motion or objection appears in the record, and may direct the entry of the proper judgment or remit the case to the trial court for the entry of the proper judgment or for a new trial, and direct the making of such amendments in the pleadings and the adoption of such procedure in that court, not inconsistent with statutes or rules, as are necessary to accomplish the ends of justice.

         Vollmer, 156 Wis. 2d at 12 (quoting Cappon v. O'Day, 165 Wis. 486, 491, 162 N.W. 655 (1917)).

         Vollmer, 156 Wis. 2d at 14. See also State v. Schumacher, 144 Wis. 2d 388, 404-07, 410, 424 N.W.2d 672 (1988).

        Vollmer, 156 Wis. 2d at 22.

         See United States v. Francis, 164 F.3d 120, 122 (2d Cir. 1999).

       For discussions of the true threat doctrine and the various tests applied by the federal and state courts, see Steven G. Gey, The Nuremberg Files and the First Amendment Value of Threats, 78 Tex. L. Rev. 541 (2000); John Rothchild, Menacing Speech and the First Amendment: A Functional Approach to Incitement that Threatens, 8 Tex. J. Women & L. 207 (1999); Robert Kurman Kelner, Note: United States v. Jake Baker: Revisiting Threats and the First Amendment, 84 Va. L. Rev. 287 (1998); Leigh Noffsinger, Notes & Comments: Wanted Posters, Bullet Proof Vests, and the First Amendment: Distinguishing True Threats from Coercive Political Advocacy, 74 Wash. L. Rev. 1209 (1999); David C. Potter, Note: The Jake Baker Case: True Threats and New Technology, 79 B.U. L. Rev. 779 (1999)\Recent Case: United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997), 111 Harv. L. Rev. 1110 (1998); Anna S. Andrews, When Is a Threat "Truly" a Threat Lacking First Amendment Protection? A Proposed True Threats Test to Safeguard Free Speech Rights in the Age of the Internet, UCLA Online Inst, for Cyberspace L. & Pol'y (1999), at http.7/ www.gseis.ucla.edu/ iclp /aandrews2.htm (last visited April 24, 2001).

       See also United States v. Crews, 781 F.2d 826, 831 — 32 (10th Cir. 1986) (requiring a showing that a threat "according to [its] language and context conveyed a gravity of purpose and likelihood of execution so as to constitute speech beyond the pale of protected 'vehement, caustic. . .unpleasantly sharp attacks on government and public officials.'") (quoting United States v. Kelner, 534 F. 2d 1020, 1026 (2d Cir. 1976)).

        United States v. Fulmer, 108 F.3d 1486, 1492 (1st Cir. 1997); United States v. Malik, 16 F.3d 45, 49 (2d Cir. 1994); United States v. Schneider, 910 F.2d 1569, 1570 (7th Cir. 1990).

       See, e.g., United States v. Saunders, 166 F.3d 907, 913 n.6 (7th Cir. 1999), and Fulmer, 108 F.3d at 1491-92 (noting agreement among federal circuit courts of appeal that an objective test be employed to determine whether a statement is a true threat, but disagreement among those courts regarding whether the test should be speaker- or listener-based).

        United States v. Hoffman, 806 F.2d 703, 707 (7th Cir. 1986) (quoting Roy v. United States, 416 F.2d 874, 877 (9th Cir. 1969)). For other courts applying this test, see, for example, Fulmer, 108 F.3d at 1492 (test focuses on "what the defendant reasonably should have foreseen"); Saunders, 166 F.3d at 912 (test is whether "statement was made 'in a context or under such circumstances wherein a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates a statement as a serious expression of an intention to inflict bodily harm'") (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir. 1990), cert. denied, 498 U.S. 986 (1990)); United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990) (test is "whether a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of intent to harm").

       The listener might be the victim of a threat or another recipient of the communication. In this case, for example, the victim of the threat was Judge Radcliffe. But the listener, the recipient of the communication, was the police officer.

       The Seventh Circuit treats both the listener's response to a statement and the listener's belief that it was a threat as relevant evidence, even though the standard is what a person making the statement should have reasonably foreseen. Saun

        ders, 166 F.3d at 913-14. The Seventh Circuit explained in Khorrami, 895 F.2d at 1192, that the listener is viewed as "a reasonable recipient, familiar with the context of the communication."
      In Schneider, 910 F.2d at 1570-71, the Seventh Circuit stated the following:
      The test for whether a statement is a threat is an objective one; it is not what the defendant intended but whether the recipient could reasonably have regarded the defendant's statement as a threat. . . .The fact that the victim acts as if he believed the threat is evidence that he did believe it, and the fact that he believed it is evidence that it could reasonably be believed and therefore that it is a threat. (Emphasis in originad.)

         Iowa v. Milner, 571 N.W.2d 7, 10 (Iowa 1997). See also Malik, 16 F.3d at 49 ("The test is an objective one — namely, whether 'an ordinary reasonable recipient who is familiar with the context of the letter would interpret it as a threat of injury.'") (quoting United States v. Maisonet, 484 F.2d 1356, 1358 (4th Cir. 1973), cert. denied, 415 U.S. 933 (1974)); United States v. Hart, 212 F.3d 1067, 1071 (8th Cir. 2000) ("To determine 'whether a true threat exists, a court must. . .determine whether the recipient of the alleged threat could reasonably conclude that it expresses a determination or intent to injure presently or in the future.'") (quoting United States v. Dinwiddie, 76 F.3d 913, 925 (8th Cir. 1996) (cert. denied, 519 U.S. 1043 (1996)); United States v. Viefhaus, 168 F.3d 392, 396 (10th Cir. 1999) ("The question is whether those who hear or read the threat reasonably consider that an actual threat has been made.").

       See, e.g., Anna S. Andrews, When Is a Threat "Truly" a Threat Lacking First Amendment Protection? A Proposed True Threats Test to Safeguard Free Speech Rights in the Age of the Internet, UCLA Online Inst, for Cyberspace L. & Pol'y 11 (1999), at http://www.gseis.ucla.edu/iclp/aandrews2.htm (arguing that a standard that considers the particular sensitivities of the listener is underprotective of free speech).
      One commentator takes this approach a step further, arguing that evidence of the listener's subjective response should be barred under the reasonable listener standard in order to prevent convictions based on a listener's unique sensitivity. See Recent Case: United States v. Fulmer, 108 F.3d 1486 (1st Cir. 1997), 111 Harv. L. Rev. 1110, 1113 (1998) ("This evidence [of the actual listener's reaction] yields precisely the danger that the objective, speaker-based test seeks to avoid: namely, that a jury will consider a hearer's 'unique sensitivity.'").

        United States v. Miller, 115 F.3d 361, 363 (6th Cir. 1997) (citations omitted).

       One commentator has embraced a subjective standard as a necessary supplement to the objective standard in order to best protect free speech. See, e.g., Anna S. Andrews, When Is a Threat "Truly" a Threat Lacking First Amendment Protection? A Proposed True Threats Test to Safeguard Free Speech Rights in the Age of the Internet, UCLA Online Inst, for Cyberspace L. & Pol'y 11 (1999), at http:// www.gseis.ucla.edu/ iclp /aandrews2.htm ("The subjective element, requiring that a speaker intend that his speech be taken as a threat, is what is missing from the tests currently followed by a majority of courts. This element is particularly important to protecting freedom of speech, as it insures that a person will not be prosecuted for speech that he or she did not intend to be taken as a threat.") (emphasis in original). In this case the sixth element of the crime of intentional threat to a judge requires a subjective intent.

       For application of this true threat test in prosecutions under the disorderly conduct statute, see In the Interest of Douglas D., 2001 WI 47, ¶ 37, 243 Wis. 2d 204, 626 N.W.2d 725, and In the Interest of AS., 2001 WI 48, ¶ 23, 243 Wis. 2d 174, 626 N.W.2d 712.

       The Ninth Circuit has recently cautioned about the use of a background of violence to gauge whether a true threat has been made against abortion providers where the speech did not contain an explicit statement of violence and was not directly communicated to the intended victim. See Planned Parenthood of Columbia/Willamette, Inc. v. American Coalition of Life Activists, 244 F.3d 1007 (9th Cir. 2001).

       The instruction given to the jury, patterned on Wis JI — Criminal 160 (1999), entitled "Closing Arguments of Counsel," provides as follows:
      Consider carefully the closing arguments of the attorneys, but their arguments and conclusions and opinions are not evidence. Draw your own conclusions from the evidence, and decide upon your verdict according to the evidence, under the instructions given you by the court.

       The suggested instruction states inter alia: "A threat is an avowed present determination or intent to injure, at once or in the future. The mere hope, desire or wish to kill or to inflict harm upon the President is insufficient to constitute a threat. In order to find that the defendant threatened the President you must find that a reasonable person would have understood the defendant's statement as a serious expression of intent, determination, or purpose to harm the President. Even the crudest, most offensive methods of stating political opposition to the President are not threats." See Leonard B. Sand et al., 2 Modern Federal Jury Instructions 31-5 (1998).

         See, e.g., Fulmer, 108 F.3d at 1493-94; Malik, 16 F.3d at 51; Hoffman, 806 F.2d at 705-06.

        See also Planned Parenthood, 244 F.3d at 1016-20 (jury instruction was insufficient because it allowed jurors to consider the violent acts of others in finding a true threat based on speech that did not contain an explicit statement of violence and was not directly communicated to the victims).

         Burks v. United States, 437 U.S. 1, 18 (1978); State v. Hamilton, 120 Wis. 2d 532, 540, 356 N.W.2d 169 (1984); State v. Ivy, 119 Wis. 2d 591, 610, 350 N.W.2d 622 (1984).

         See, e.g., Viefhaus, 168 F.3d at 397; Miller, 115 F.3d at 364; Schneider, 910 F.2d at 1570; Khorrami, 895 F.2d at 1192.

       The Due Process Clause provides: "nor shall any State deprive any person of life, liberty, or property, without due process of law." U.S. Const, amend. XIV, § 1.

       The Jury Clause of the Sixth Amendment provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed." The Fourteenth Amendment Due Process Clause protects this constitutional guarantee against infringement by the states. Duncan v. Louisiana, 391 U.S. 145, 149 (1968).

       The Jury Clause of Article I, Section 7 provides: "In all criminal prosecutions [by indictment, or information,] the accused shall enjoy the right. . .to a speedy public trial by an impartial jury of the county or district wherein the offense shall have been committed." See also Wis. Stat. § 972.02(1) (1997 — 98) (codifying the right to a jury trial in criminal proceedings).

        All future references to the Wisconsin Statutes are to the 1997-98 version unless otherwise indicated.

       The court further discusses this issue in two companion cases to the present case, also released today. See State v. A.S., 2001 WI 48, ¶¶ 22-24, 243 Wis. 2d 173, 626 N.W.2d 712; State v. Douglas D., 2001 WI 47, ¶ 31, 243 Wis. 2d 204, 626 N.W.2d 725.

       As noted above, a court can determine that there is insufficient evidence to support a guilty verdict and, therefore, dismiss a case as a matter of law. Sullivan v. Louisiana, 508 U.S. 275, 277 (1993); see also majority op. at ¶¶ 47-48. However, such disposition would not be appropriate in the case at hand. Taking into account the substantial evidence which may support a jury finding that Perkins' speech was a true threat, this court must remand this case for a new trial. See majority op. at ¶¶ 48-49.


source: Caselaw Access Project

author: WILLIAM A. BABLITCH, J. SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE WILLIAM A. BABLITCH, J.

license: Public Domain

text:
    In the Interest of A.S., a person Under the Age of 17: State of Wisconsin, Petitioner-Appellant, v. A.S., Respondent-Respondent-Petitioner.
    Supreme Court

      No. 99-2317.

      Oral argument October 3, 2000.

    Decided May 16, 2001.

    2001 WI 48
    (Also reported in 626 N.W.2d 712.)

      For the respondent-respondent-petitioner there were briefs by Stephen P. Hurley, Marcus J. Berghahn and Hurley, Burish & Milliken, S.C., Madison, and oral argument by Marcus J. Berghahn.

    For the petitioner-appellant the cause was argued by Jeffrey J. Kassel, assistant attorney general, with whom on the brief was James E. Doyle, attorney general.
   WILLIAM A. BABLITCH, J.

¶ 1. A.S., a juvenile, seeks review of two determinations by the court of appeals: (1) that the facts as pleaded in a delinquency petition alleging disorderly conduct were sufficient to constitute probable cause, and (2) that A.S.'s statements were not protected speech under the First Amendment. The disorderly conduct charge was based on statements made by A.S. threatening violence toward a number of named individuals. A.S. argues that (1) speech alone cannot constitute disorderly conduct; (2) his speech is protected under the First Amendment; and (3) under the facts of this case, the elements of disorderly conduct are not met. We conclude that speech alone in certain contexts can constitute disorderly conduct; that in context A.S.'s speech is not protected by the First Amendment; and that the two elements of disorderly conduct are met here. Accordingly, we affirm.

HH

¶ 2. On April 29, 1999, the State of Wisconsin (State) filed a delinquency petition against A.S., charging him with two counts of disorderly conduct. The circuit court dismissed the second count of the petition on June 4, 1999, after concluding that the petition lacked sufficient facts to support a finding of disorderly conduct on this count. The State does not contest this dismissal. Thus, our review is limited to the first count.

¶ 3. The petition alleges the following facts in support of the first count. On April 27,1999, the DeForest Police Department received a report from a juvenile girl, A.H., about several threatening comments that A.S. made on April 26,1999, at a local youth center. At that time, A.S. was 13 years old. The petition states in relevant part as follows:

A.H. reported that while [she, A.S. and another girl, M.L.] were playing a computer game, A.S. made several statements that he was going to kill everyone at the middle school, that this would occur over a 10 minute period of time, and while discussing the Colorado school shootings, A.S. stated that he was going to "do something similar." A.H. further reported that A.S. stated that he was going to "make people suffer" and that he wished to kill everyone except for [A.H.], M.L., and some other buddies. A.H. further reported that A.S. stated that he wanted to "hang" DeForest Police Officer O'Neill as well as beat her at the knees. A.H. reported that A.S. stated that he would have Assistant Principal McHugh lie on the ground face down with his hands behind his back, that he would tell McHugh to count to 10, and prior to reaching 10, he would then shoot McHugh. A.H. reported that A.S. also stated that he wanted to shoot Mr. Clifford, the social studies teacher. A.H. further reported that A.S. also informed her that he would "rape" M.P., then let her go, and that A.S. appeared to be excited about this rape. (Names of juveniles replaced with initials.)

According to the petition, A.H. believed that A.S. would possibly commit the rape. A.H. noted that A.S. was not laughing when he made these statements and that he spoke in a "very matter-of-fact manner." The reference to school shootings in Colorado in the petition pertains to the shooting deaths of 15 individuals at Columbine High School in Littleton, Colorado on April 20, 1999. Two students who attended the high school caused these deaths. This incident received extensive national media attention.

¶ 4. The petition also states that the police interviewed two other juveniles, M.L. and J.G., about A.S.'s statements at the youth center. M.L. confirmed the allegations made by A.H. concerning A.S.'s statements at the youth center. M.L. also alleged that she told A.S. that his statements scared her and that she had to ask A.S. several times to stop making the statements before he stopped. J.G. reported that he heard A.S. talking to two girls at the youth center about bringing guns to school with him.

¶ 5. Finally, the petition states that the police interviewed A.S. about his statements and that he admitted making them. The petition provides in relevant part as follows:

A.S. admitted that he stated, "I'm going to take over the school like in Colorado." A.S. admitted that he also made statements about shooting [the assistant principal] as he knelt and counted to 10. A.S admitted that he also stated he would hang Officer O'Neill by her wrists, break her legs and shoot her. A.S. further admitted that he also made statements that he would like to rape M.P. (Names of juveniles replaced with initials.)

Based on these facts, the delinquency petition alleges that A.S. "engage[d] in abusive and otherwise disorderly conduct under circumstances in which such conduct tended to cause or provoke a disturbance; contrary to Section 947.01 of the Wisconsin Statutes...."

¶ 6. A.S. moved to dismiss the petition. The circuit court granted A.S.'s motion. The court concluded that A.S.'s statements needed "some additional basis" before they would constitute disorderly conduct. Although the court believed A.S.'s comments were "repulsive and shocking," it regarded the statements as "an extreme level of adolescent 'trash talking,'" which produced no immediate disorder. The court noted that the failure of the listener to report A.S.'s conduct until the following day showed a lack of any immediate disorder and that such circumstances were "simply not of the type (charged, tense, volatile, disruptive, interfering, etc.) so as to allow probable cause to be found that these actions were 'otherwise disorderly.'"

¶ 7. The court of appeals, in a one-judge unpublished decision, reversed the order of dismissal. The court first concluded that A.S.'s comments were not protected speech under the First Amendment. It opined that A.S. could be prosecuted because the government has an interest in protecting individuals from such threats of violence. The court then found that the allegations in the petition could support a conclusion that A.S.'s statements constituted disorderly conduct. As a result, based on the totality of the circumstances and the specific nature of A.S.'s statements, the court concluded that further proceedings on the disorderly conduct count were justified. A.S. petitioned this court for review.

¶ 8. The following three issues are presented for review: whether the disorderly conduct statute can be applied solely to speech; whether A.S.'s speech is protected under the First Amendment; and whether the elements of disorderly conduct are met in this case'. We address each issue in turn.

I — I I — I

¶ 9. The disorderly conduct statute, Wis. Stat. § 947.01 (1999-2000), states as follows: "Whoever, in a public or private place, engages in violent, abusive, indecent, profane, boisterous, unreasonably loud or otherwise disorderly conduct under circumstances in which the conduct tends to cause or provoke a disturbance is guilty of a Class B misdemeanor." The statute contains two elements: (1) conduct of the type enumerated in the statute or similar thereto, and (2) the conduct must be engaged in under circumstances which tended to cause or provoke a disturbance. State v. Zwicker, 41 Wis. 2d 497, 515, 164 N.W.2d 512 (1969).

¶ 10. The delinquency petition in this case reveals that the disorderly conduct charge against A.S. is based solely on his statements to other juveniles at the youth center. A.S. argues that it is impermissible for the State to proceed in this manner because the disorderly conduct statute cannot be applied solely to his speech. Instead, A.S. contends that, consistent with prior cases that have applied the statute, the statute can only be applied to speech when the speech is accompanied by conduct. A.S. argues that, by applying the statute solely to his speech, the State has effectively transformed the disorderly conduct statute into a content-based regulation, and as a result, an examination of the constitutionality of the statute must take place in light of this classification. In particular, A.S. asserts that the application of the statute in this manner requires us to ensure that the statute is narrowly drawn to proscribe only speech outside the protections of the First Amendment.

¶ 11. In essence, this challenge asks whether the disorderly conduct statute can be applied to regulate speech when that speech is unaccompanied by any physical conduct and is not unreasonably loud. We acknowledge that no Wisconsin court has ever examined whether the statute can be permissibly applied in this manner. This question, one of the nature and scope of the disorderly conduct statute, presents a question of law that we review de novo.

¶ 12. We examined the regulatory scope of the disorderly conduct statute in Zwicker, 41 Wis. 2d 497. In that case, we particularly examined whether the statute was vague and overly broad and whether its application could be extended into the area of protected speech. Id. at 507-11. We concluded that the statute was sufficiently designed to overcome an attack for vagueness and that it was not so broad that it could be applied to conduct protected by the constitution. Id. at 507-09. We also noted that the statute could be applied to "activities intertwined with protected freedoms," but only if these activities were "carried out in a manner" consistent with the disorderly conduct statute. Id. at 509.

¶ 13. In the course of our examination, we specifically noted that the disorderly conduct statute is aimed at proscribing conduct in terms of the results that could be reasonably expected therefrom. Id. at 508. In other words, the statute is not aimed at circumscribing the content of speech directly. Cf. City of Madison v. Baumann, 162 Wis. 2d 660, 673, 678-81, 470 N.W.2d 296 (1991) (citing Zwicker, this court upheld the constitutionality of a city ordinance that was "substantially analogous" to the disorderly conduct statute, concluding that the ordinance's purpose was not to regulate speech). However, we noted in Zwicker that, even though such general regulatory statutes, like the disorderly conduct statute, are not aimed at directly controlling speech, their application may result in the incidental limitation on the content of speech. Zwicker, 41 Wis. 2d at 510 (quoting Konigsberg v. State Bar of California, 366 U.S. 36, 50 (1961)); cf. State v. Wickstrom, 118 Wis. 2d 339, 353-54, 348 N.W.2d 183 (Ct. App. 1984) (citing Zwicker, the court of appeals concluded that Wis. Stat. § 946.69(1), which prohibits falsely assuming to act as a public officer or employee, could also incidentally limit speech because the statute penalized conduct, not speech). We noted that this limitation on speech is permissible because:

Constitutionally protected rights, such as freedom of speech and peaceable assembly, are not the be all and end all. They are not an absolute touchstone. The United States Constitution is not unmindful of other equally important interests such as public order. To recognize the rights of freedom of speech and peaceable assembly as absolutes would be to recognize the rule of force; the rights of other individuals and of the public would vanish.

Zwicker, 41 Wis. 2d at 509.

¶ 14. Indeed, in Feiner v. New York, 340 U.S. 315 (1951), the United States Supreme Court recognized that disorderly conduct statutes, which are not designed to specifically proscribe pure speech, may apply to incidentally limit speech in this manner.

The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility. It includes not only violent acts but acts and words likely to produce violence in others. No one would have the hardihood to suggest that the principle of freedom of speech sanctions incitement to riot or that religious liberty connotes the privilege to exhort others to physical attack upon those belonging to another sect. When clear and present danger of riot, disorder, interference with traffic upon the public streets, or other immediate threat to public safety, peace, or order appears, the power of the State to prevent or punish is obvious.

Feiner, 340 U.S. at 320 (quoting Cantwell v. State of Connecticut, 310 U.S. 296, 308 (1940)).

¶ 15. In Zwicker, we discussed certain types of speech, which by their very nature cause a breach of the peace.

There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, and libelous, and the insulting or "fighting" words — those which by their very utterance inflict injury or tend to incite an immediate breach of the peace. It has been well observed that such utterances are no essential part of any exposition of ideas, and 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.

Zwicker, 41 Wis. 2d at 510 (quoting Chaplinsky v. New Hampshire, 315 U.S. 568, 571 (1942)). Thus, even though, as in this case, the disorderly conduct statute is being applied to speech, this application is permissible because the application is not directed at the content of the speech itself. Instead, the prosecution is directed at controlling the harmful effects of the speech.

¶ 16. Because the disorderly conduct statute only proscribes speech that is not constitutionally protected, it does not result in the statute becoming overly broad. See In the Interest of Douglas D., 2001 WI 47, ¶¶ 21, 24, 243 Wis. 2d 204, 626 N.W.2d 725. As Douglas D. concludes, the disorderly conduct statute does not infringe on speech that is protected under the First Amendment because the statute sanctions only categories of speech that have been traditionally regarded as beyond the protection of the First Amendment. Id. Thus, A.S.'s speech can be prosecuted only if his speech is one of the limited categories of speech that fall outside the protections of the First Amendment.

¶ 17. We conclude that application of the disorderly conduct statute to speech alone is permissible under appropriate circumstances. The right of free speech is not absolute. When speech is not an essential part of any exposition of ideas, when it is utterly devoid of social value, and when it can cause or provoke a disturbance, the disorderly conduct statute can be applicable.

I — I HH H-H

¶ 18. A.S. also argues that, even if the disorderly conduct statute can be applied solely to his speech, application of the statute in this case is unconstitutional because his statements are protected under the First Amendment of the United States Constitution and Article I, Section 3 of the Wisconsin Constitution. A.S. contends that his speech is protected because it is mere hyperbole and that it is simply, as the trial court stated, immature "trash talking." A.S. argues that, in order for his speech to fall outside the protections of the First Amendment, it must have either incited immediate lawless action or caused an immediate physical reaction from a listener. A.S. contends that neither occurred in this instance. As a result, the petition must be dismissed because it is based on speech that is protected under the First Amendment.

¶ 19. This challenge presents a question of law that we determine de novo. State v. Weidner, 2000 WI 52, ¶¶ 6-7, 235 Wis. 2d 306, 611 N.W.2d 684; see also State v. Pallone, 2000 WI 77, ¶¶ 26-27, 236 Wis. 2d 162, 613 N.W.2d 568 (concluding that application of constitutional principles to a set of facts is a question of constitutional fact, which is a question of law).

¶ 20. A.S. relies primarily on Brandenburg v. Ohio, 395 U.S. 444 (1969), to support his argument that his speech is protected. Brandenburg involved the conviction of a Ku Klux Klan leader for violating Ohio's criminal syndicalism statute. Id. at 444-45. This statute prohibited the advocacy of violent political reform and the assembly in a group to teach or advocate such doctrine. Id. The speech at issue in Brandenburg was delivered during a rally and advocated, in part, that "if our President, our Congress, our Supreme Court, continues to suppress the white, Caucasian race, it's possible that there might have to be some revengeance taken." Id. at 446. The Court reversed the leader's conviction on this statute, concluding that the mere advocacy of violence was protected by the First Amendment as long as the advocacy did not incite people to imminent action. Id. at 447. Relying on this holding, A.S. contends that his statements are protected speech because they constituted mere advocacy and did not incite any immediate lawless action.

¶ 21. The State argues, however, that A.S.'s statements more closely resembled "true threats," which the United States Supreme Court first recognized as a class of unprotected speech in Watts v. United States, 394 U.S. 705 (1969). Watts involved the conviction of an antiwar demonstrator under a federal statute prohibiting threats against the President. Id. at 706. Watts told a crowd of demonstrators that" '[i]f they ever make me carry a rifle the first man I want to get in my sights is L.B.J.'" Id. Based on this statement, he was convicted of " 'knowingly and willfully. . .[making a] threat to take the life of or to inflict bodily harm upon the President of the United States.'" Id. at 705. In reversing Watts' conviction, the Supreme Court concluded that the statute required the Government to initially prove a "true threat." Id. at 708. The Court concluded that a "true threat" was not proven; instead the court regarded the statement made by Watts as mere "political hyperbole." Id. The Court reasoned that "[t]aken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise." Id. The Watts Court did not provide any other guidelines for determining "true threats."

¶ 22. We conclude that the factual allegations in the petition more closely resemble that of a threat under Watts than of an incitement to action under Brandenburg. Thus, we examine A.S.'s statements under a "true threat" analysis. In our examination, we apply a test for a "true threat" that was adopted in our decision in State v. Perkins, 2001 WI 46, 243 Wis. 2d 141, 626 N.W.2d 712. This test employs an objective reasonable person standard and defines a "true threat" as follows:

A true threat is a statement that a speaker would reasonably foresee that a listener would reasonably interpret as a serious expression of a purpose to inflict harm, as distinguished from hyperbole, jest, innocuous talk, expressions of political views or other similarly protected speech. It is not necessary that the speaker have the ability to carry out the threat. In determining whether a statement is a true threat, the totality of the circumstances must be considered.

Id. at ¶ 29. Consideration must be given to "the full context of the statement, including all relevant factors that might affect how the statement could reasonably be interpreted." Id. at ¶ 31. To this end, various factors should be considered, including:

how the recipient and other listeners reacted to the alleged threat, whether the threat was conditional, whether it was communicated directly to its victim, whether the maker of the threat had made similar statements to the victim on other occasions, and whether the victim had reason to believe that the maker of the threat had a propensity to engage in violence.

Id. (citation omitted).

¶ 23. In applying the test to A.S.'s statement, we conclude that his statements, as alleged in the petition, did constitute true threats. Under the totality of the circumstances, a reasonable speaker in the position of A.S. would foresee that reasonable listeners would interpret his statements as serious expressions of an intent to intimidate or inflict bodily harm. M.L. told him that his statements were scaring her. She asked him several times to stop making the statements. The recent events at Columbine High School, which A.S. made reference to during the course of his statements, heightened the anxiety of the listeners. A reasonable person in the position of A.S. had to know that his listeners were concerned about what had happened at Columbine and about what could happen if A.S. was determined to carry out his threats.

¶ 24. The alleged facts in the petition also indicate that he made the statements in a very matter of fact manner and was not laughing at the time. There was nothing in the statements, nor was there anything in the context, that would indicate that A.S. was simply engaging in hyperbole, jest, or political dissent. These were true threats. A.S. had no more right to make these statements than, in the words of Holmes, does a man have the right to cry "fire" in a crowded theater.

IV

¶ 25. Our conclusion that, based on the facts in the petition, A.S.'s statements constituted a "true threat" is alone not determinative of whether the pleading contains probable cause for disorderly conduct. Indeed, the State is also required to provide sufficient facts in the petition to support the charge of disorderly conduct. See State v. Becker, 51 Wis. 2d 659, 664-66, 188 N.W.2d 449 (1971). A.S. challenges the petition in this respect, arguing that it must be dismissed because it fails to allege sufficient facts to support a finding of disorderly conduct.

¶ 26. The sufficiency of a criminal complaint is a question of law, which we review de novo. State v. Smaxwell, 2000 WI App 112, ¶ 5, 235 Wis. 2d 230, 612 N.W.2d 756. The same principles that apply when reviewing the sufficiency of a criminal complaint apply to a petition in juvenile court proceedings. In Interest of L.A.T., 167 Wis. 2d 276, 283, 481 N.W.2d 493 (Ct. App. 1992). In turn, a petition "must charge a crime under the law, must describe the conduct alleged to constitute the offense, and must contain sufficient facts to persuade a neutral and detached magistrate that the charged crime has probably been committed by the accused." State v. O'Connor, 77 Wis. 2d 261, 275-76, 252 N.W.2d 671 (1977). The petition should state what charge is alleged, who is charged, when and where the offense is alleged to have taken place, why this juvenile is being charged, and who is making the allegations. Becker, 51 Wis. 2d at 663; State ex rel. Evanow v. Seraphim, 40 Wis. 2d 223, 230, 161 N.W.2d 369 (1968).

¶ 27. It is not necessary that the petition establish the juvenile's guilt beyond a reasonable doubt. State v. Hoffman, 106 Wis. 2d 185, 200, 316 N.W.2d 143 (Ct. App. 1982). The petition's function is informative, not adjudicative. State v. Olson, 75 Wis. 2d 575, 583, 250 N.W.2d 12 (1977). The petition will be sufficient if the facts, by themselves or together with the reasonable inferences to which they give rise, lead a fair-minded magistrate to reasonably conclude that the facts alleged justify further criminal proceedings. Becker, 51 Wis. 2d at 662-63.

¶ 28. We examine the facts alleged in the petition in light of the elements of the charged offense. Disorderly conduct has two elements. The first requires that the conduct must be violent, abusive, profane, boisterous, unreasonably loud, or otherwise disorderly. To satisfy this element, the petition alleges that A.S.'s statements were both abusive and otherwise disorderly.

¶ 29. We provided a limited definition of "abusive" language in Lane v. Collins, 29 Wis. 2d 66, 70-72, 138 N.W.2d 264 (1965). In Lane, the defendant was arrested for violating a city disorderly conduct ordinance after he called a police officer a "son-of-a-bitch." Id. at 70-71. We concluded that the city ordinance was similar in import to the first element of the state disorderly conduct statute and noted:

The underlying reason for disorderly conduct statutes and ordinances proscribing abusive language is that such language tends to provoke retaliatory conduct on the part of the person to whom it is addressed that amounts to breach of the peace. Calling another person a "son-of-a-bitch" under charged circumstances might well constitute abusive language which is likely to have that result.

Id. at 71-72 (footnote omitted). Thus, following this language, A.S.'s statements will constitute "abusive" statements if under the circumstances they tended to provoke retaliatory conduct on the part of the person or persons to whom the statements were addressed.

¶ 30. The petition alleges that A.S. told two girls that he intended to kill everyone at the middle school, except the girls and some other friends, and that he would make people suffer in the process. A.S. then provided graphic detail on the manner he would use to kill or seriously harm specific individuals, including a teacher, an assistant principal, a police officer, and a classmate. The petition states that A.S.'s statements were made during a discussion of recent school shootings in Colorado. This context could provide charged circumstances, and under such circumstances, such language may tend to provoke retaliatory conduct from the persons hearing the statements. As a result, the petition contains sufficient facts to establish probable cause that the language was abusive.

¶ 31. We also conclude that the petition contains sufficient facts to support a finding of probable cause that A.S.'s conduct was "otherwise disorderly." We have examined the "otherwise disorderly" provision in other cases, such as City of Oak Creek v. King, 148 Wis. 2d 532, 436 N.W.2d 285 (1989), and State v. Werstein, 60 Wis. 2d 668, 211 N.W.2d 437 (1973); however we have never examined this provision in a context where the conduct consists solely of pure speech. Nevertheless, Werstein and King provide guidance on how this section should be interpreted.

¶ 32. In particular, in Werstein, we recognized that our analysis of whether certain conduct is "otherwise disorderly" must include an examination of the circumstances surrounding the conduct. Werstein, 60 Wis. 2d at 672-73. We concluded that such an examination is necessary because certain circumstances may require criminal culpability, even in instances where the alleged disorderly conduct may be protected under the First Amendment. Id. at 673.

¶ 33. In King, we provided additional guidance. Specifically, we noted that " '[w]hen the statute, after the specific enumerations, in a 'catchall' clause proscribes 'otherwise disorderly conduct' which tends to 'provoke a disturbance,' this must mean conduct of a type not previously enumerated but similar thereto in having a tendency to disrupt good order and to provoke a disturbance.'" King, 148 Wis. 2d at 541 (quoting State v. Givens, 28 Wis. 2d ,109, 115, 135 N.W.2d 780 (1965)). This interpretation is based on the rule of ejus-dem generis. Givens, 28 Wis. 2d at 115. In light of this analysis, we noted the conduct must be of the type that tends to "disrupt good order." King, 148 Wis. 2d at, 540. Thus, following Werstein and King, conduct will fall under the "otherwise disorderly" provision if under the circumstances the conduct is of the type that tends to disrupt good order. This test requires an objective analysis of both the conduct and the circumstances.

¶ 34. According to the petition, A.S. made several violent threats about specific, identifiable individuals. A.S. expressed these threats in a serious manner and provided specific accounts on the violent manner in which he would carry out the threats. In addition, A.S. made these threats during a discussion of recent murders that occurred at Columbine High School in Colorado. We conclude that under these circumstances such conduct supports a finding of probable cause of "otherwise disorderly" conduct. Such violent threats are of the type that tend to disrupt good order under the circumstances because they could cause the listeners to be seriously concerned about the safety of those threatened. We conclude, therefore, that the petition is sufficient on the first element.

¶ 35. We acknowledge, as the circuit court did, that some facts and inferences from the petition may weigh against a finding that the conduct was otherwise disorderly. For example, the age and relative immaturity of A.S. is one possible countervailing factor. Another is that A.S.'s alleged threats were not directed toward any person who heard the threats. However, in reviewing a motion to dismiss, we do not weigh the facts in the petition and make a determination as to the legitimacy of the claim. We only determine whether the petition establishes probable cause.

¶ 36. Having concluded that the petition contains sufficient facts for probable cause on the first element, we now examine the second element. This element requires us to determine whether under the •circumstances A.S.'s statements tended to cause or provoke a disturbance. In making this determination, we do not examine whether a particular person was disturbed or annoyed. Givens, 28 Wis. 2d at 116. Further, it is not necessary that an actual disturbance result from the conduct of a defendant. King, 148 Wis. 2d at 545. Instead, the court only examines whether the conduct was of the type that tends to cause or provoke a disturbance under the circumstances as they then existed. Id.

¶ 37. We conclude that the petition was sufficient to establish probable cause on the second element. As mentioned in the analysis of the first element, the petition alleges that A.S. made violent and detailed threats about specific individuals during a discussion about the murders at Columbine High School. Under these circumstances, such violent threats to kill and seriously harm others could only serve to frighten and cause serious concern to the listeners.

¶ 38. In addition to considering the potential effects of a defendant's conduct in disorderly conduct cases, our prior cases also indicate that the actual effects of a defendant's conduct are probative. For example, in State v. Maker, 48 Wis. 2d 612,180 N.W.2d 707 (1970), we reviewed a defendant's conviction of disorderly conduct and specifically considered the reaction of those observing the defendant's conduct. In Maker, the defendant performed as part of a musical group in a tavern in Milwaukee, and while on stage, he wore only a supporter and body paint. Id. at 613, 617. The testimony at the defendant's trial indicated that the crowd's reaction to the defendant was not delayed; the crowd stood on tables to see the defendant and yelled loudly in reaction to the defendant's performance. Id. at 618. In light of this reaction, we noted that "it is as a reasonable alternative inference that, in a crowded tavern, there existed a situation of mounting disorder, accumulating tension and predictable explosiveness. This inference the trial court drew finding that the defendant did in fact 'cause and provoke a disturbance.'" Id. We concluded that when viewing the conduct in light of the circumstances, especially the time and place of the conduct, the defendant's actions were disorderly and did cause and provoke a disturbance. Id. at 618-19.

¶ 39. In A.S.'s case, the reaction of the listeners and the other actual effects of A.S.'s conduct are also probative. In particular, the petition indicates that M.L. was allegedly frightened by A.S.'s statements and that she asked him several times to stop making the threats. The petition also indicates that A.H. was concerned enough to report A.S.'s conduct to the police the next day. The police then spent considerable time conducting interviews concerning A.S.'s threats. These actual effects of A.S.'s conduct support our finding that his conduct tended to cause or provoke a disturbance.

¶ 40. A.S. asserts that our prior case law interpreting this statute has required an immediate physical and visible reaction by those subject to the conduct, and because the petition in his case lacked any information on an immediate reaction from the listeners, the petition is insufficient. We disagree. None of the cases upon which A.S. relies state that an immediate, physical reaction is necessary for disorderly conduct to occur. See King, 148 Wis. 2d 532; Werstein, 60 Wis. 2d 668; State v. Elson, 60 Wis. 2d 54, 208 N.W.2d 363 (1973); Maker, 48 Wis. 2d 612; Lane, 29 Wis. 2d 66; Givens, 28 Wis. 2d 109. Indeed, all of the cases recognize that the emphasis of the disorderly conduct statute is not on the reaction of the listener or observer, but instead on the conduct itself in light of the circumstances. As a result, this argument is without merit.

¶ 41. Finally, we acknowledge that only certain types of conduct fall under the statute, specifically:

The statute does not imply that all conduct which tends to annoy another is disorderly conduct. Only such conduct as unreasonably offends the sense of decency or propriety of the community is included. The statute does not punish a person for conduct which might possibly offend some hypercritical individual. The design of the disorderly conduct statute is to proscribe substantial intrusions which offend the normal sensibilities of average persons or which constitute significantly abusive or disturbing demeanor in the eyes of reasonable persons.

Zwicker, 41 Wis. 2d at 508. We make our determination in light of this language and conclude that the petition set forth sufficient facts to establish probable cause that A.S.'s conduct constituted disorderly conduct.

By the Court. — The decision of the court of appeals is affirmed, and the cause is remanded to the circuit court for further proceedings.

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 42. (concurring). In my concurrence to In the Interest of Douglas D.: State v. Douglas D., 2001 WI 47, 243 Wis. 2d 204, 626 N.W.2d 725,1 explained why the disorderly conduct statute (Wis. Stat. § 947.01) should not apply to the pure content of speech, unaccompanied by any disorderly conduct, and why specific intent is required if the statute is to apply to a true threat. I am bound, but not bowed, by the majority opinion in Douglas D., now precedent in this state.

¶ 43. For the reasons set forth, I write separately.

WILLIAM A. BABLITCH, J.

¶ 44. (concurring). A majority of this court adopts the definition of "true threat" found in State v. Perkins, 2001 WI 46. I would adopt a more stringent test for a true threat when the crime charged, as here, does not require intent. See In the Interest of Douglas D., 2001 WI 47 at ¶¶ 61-64 (Bablitch, J., concurring). I conclude, however, that, under either test, the statements made by A.S. would constitute a true threat. For this reason, I concur in this case. I refer to my concurrence in Douglas D., which explains my reasons for adopting a different test.

       All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated.

       "The First Amendment of the United States Constitution states that 'Congress shall make no law. . .abridging the freedom of speech. . . .' It applies to the states via the Fourteenth Amendment." State v. Janssen, 219 Wis. 2d 362, 368 n.4, 580 N.W.2d 260 (1998). Article I, Section 3 of the Wisconsin Constitution states that "[e]very person may freely speak. . .and no laws shall be passed to restrain or abridge the liberty of speech." County of Kenosha v. C & S Mgmt., Inc., 223 Wis. 2d 373, 387 n.4, 588 N.W.2d 236 (1999). Despite differences in language, Article I, Section 3 of the Wisconsin Constitution guarantees the same freedom of speech rights as the First Amendment of the United States Constitution. Id. at 388.

       At the circuit court level, it was noted that the comments made by Watts were greeted with laughter and applause. Watts v. United States, 402 F.2d 676, 682 (D.C. Cir. 1968).

       Ejusdem generis is a "canon of construction that when a general word or phrase follows a list of specific persons or things, the general word or phrase will be interpreted to include only persons or things of the same type as those listed." Black's Law Dictionary 535 (7th ed. 1999).