a 15 year old boy was prosecuted by the state for writing a poem in which he described himself as "dangerous" and referred to a recent high school shooting...Reading or writing dark poetry doesn't in my mind constitute in and of itself criminal intent.
This recalls discussions in criminal law where we argued about when the criminal intent has been formed. If I said to one of my roommates, out of frustration over messy dishes, "I am going to kill our other roommate." Would that suggest criminal intent? What if instead I wrote a note to myself saying, "Reminder: Kill roommate on Tuesday."? Would one be closer to evidencing intent to actual commit a crime?
The difficult thing is that this gets into the mens rea requirement found in most penal code offenses. It all rides on intent because, as oft quoted, "even a dog can tell the difference between being stumbled upon and being kicked." It seems that two of the justices have different ideas about whether this poem constitutes intent needed.
Justice Joyce Kennard suggested there was no immediacy to the threat and therefore no crime was committed. "The poem doesn't say 'I will be the next kid to bring guns to school.' It says, 'I can."'
Justice Janice Rogers Brown said the First Amendment doesn't shield works of art with unlawful intentions. She asked whether a bank robber could be immune from charges for giving a bank teller this note:
"Roses are red. Violets are blue. Give me the money or I'll shoot you."
Justice Brown makes an interesting argument, however, it is extremely weak. Under a criminal threat statute it is clear that the poem from a bank robber is a threat with intent. The robber is there at the bank handing the note to the teller.
If I went to the the store and bought a gun the day my calendar said to "Kill my roommate" there would be, in my mind, a situation more like the bank robber. I'm in the process of performing the act, or actus reus, of the crime. Turning in a poem to an English teacher is a different situation. I think that the immediacy is not there and there is no real reason to consider this a threat.
If the statute covers situations like this then it seems to be overbroad. From the arguments I have read, this doesn't appear to be anything more than artistic expression.
