But Justice Marvin R. Baxter noted that the trial judge determined the boy was being untruthful on the stand. Baxter also asked whether a student has a 1st Amendment right to wear a T-shirt with an obscenity on it. Michael A. Kresser, the lawyer for George T., said schools may legally enforce dress codes.
Justice Janice R. Brown suggested that criminal activity could be disguised as art. She asked whether a hypothetical poem written by a bank robber -- "Roses are red. Violets are blue. Give me the money or I'll shoot you" -- would be protected by the 1st Amendment.
Kresser said it would not be protected.
"Merely putting something in verse does not immunize it," the lawyer said. To determine whether someone intended words as a threat, "you have to look to all the circumstances surrounding the communication," he said.
George had been at Santa Teresa High School for just 10 days when he wrote the offending poem. He approached a girl in his English class on March 16, 2001, and asked her to read it. "Is there a poetry club here?" he inquired.
The girl read the poem and became so scared she fled campus. The girl notified a teacher, and police arrested George at his home two days later.
George, who had labeled his poem "Dark Poetry," denied he had meant it as a threat.
The boy also had given his poem to a second girl who hadn't bothered to look at it. When she finally read it after George's arrest, she burst into tears, according to court records.
George was expelled from Santa Teresa and is now a senior at another high school in San Jose. Kresser said the boy told him he had inquired about going into the military after graduation and was told that his conviction might make it difficult. But Kresser was optimistic after the court hearing.
"I thought the arguments went pretty well for our side," Kresser said.
Siding with the boy were the American Civil Liberties Union of Northern California; PEN USA, a writers group; and the 1st Amendment Project. The state high court has 90 days to reach a decision in the case, In re George T., S11780.
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(BEGIN TEXT OF INFOBOX)
`Dark Poetry'
The poem, printed on lined notebook paper, began:
Who are these faces around me?
Where did they come from?
They would probably become
the next doctors loirs [sic] or
something.
All really intelligent and ahead
in their game.
I wish I had a choice on what I
want to be like they do.
All so happy and vagrant....
Each origonal [sic] in their own
way.
They make me want to puke.
For 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 school.
So parents watch your children
cuz I'm BACK!!
