Zero-tolerance laws on Tennessee school shooting threats raise First Amendment worries

Zero-tolerance laws cracking down on school threats are leaving little room for error with the constitutional rights of the students caught up in their net.
A week after the Antioch High School shooting in Nashville on Jan. 22, which left 16-year-old Josselin Corea Escalante dead as well as the shooter, Metro Nashville police made 12 arrests for threats against schools in the area.
Prior to that, 15 students were taken into custody in Knoxville, and five in Nashville, for making alleged threats.
Such arrests have been on the rise since July 2024, after the passage of new state law that made it a Class E felony to make threats against schools. During the 2024 fiscal year, 518 children in Tennessee were arrested under the current threats of mass violence law, including 71 children between the ages of 7 and 11, according to Beth Cruz, a lecturer in public interest law at Vanderbilt University Law School. Only 17% of those arrested were adjudicated delinquent.
Supporters of the law say school threats are no joking matter and all of them must be taken seriously. The aim of a tougher law, they say, is to discourage students from making the threats.
Former state Sen. Jon Lundberg, R-Bristol, sponsored the legislation and another zero-tolerance bill in 2023. He said in early 2024 the goal of the new law was "not just arrest kids and punish them."
"Frankly, it's to make certain we're elevating the discussion that's happening between parents and their children and teachers and kids that this is not something that is a joking manner," Lundberg, who lost reelection last year, said at the time. "It is not trivialized."
But Tennessee's law, along with measures in other states, has snagged more than just kids potentially seeking to cause harm. It's placing harsh penalties like expulsion or arrest on some children making ill-advised jokes, statements perceived as threats, and even children attempting to report potential threats — all things largely protected by the First Amendment, according to experts.
Dorrian Harp, an 18-year-old senior at Hunters Lane High School, was one of the dozen students arrested for threats following the Antioch school shooting.
He made a joke about 'Swiss cheese,' a reference to bullet holes that is a common phrase on social media.
Despite having no prior criminal record or history of trouble at school, his bond was set to $100,000. He spent a night in jail and will be tried as an adult.
Five families in Tennessee are currently suing over the law — three in Williamson County and two in Hamilton County. In the Hamilton County case, a student with emotional and intellectual impairments was arrested in a restaurant parking lot after answering 'yeah' when another kid asked if he was going to 'shoot up' the school.
More: Middle Tennessee parents sue Williamson County school board, claim child was unfairly expelled, punished
'The zero-tolerance policy for even uttering the words 'shoot' or 'gun' is an unconstitutional kneejerk reaction by the legislature, and has led school administrators to make rash decisions concerning student discipline,' Buddy Presley, the lead attorney for the child's case, said in court filings.
Similar laws have been passed in multiple states. Just three weeks after two teachers and two students were killed at a Georgia high school in September, more than 700 children and teenagers were arrested across the country for making violent threats against schools, according to a review by the New York Times.
In Florida, a county sheriff even began posting social media videos of 'perp-walking' children arrested for violent threats, showing the children's faces while they are handcuffed and led into detention areas.
'Parents, if you don't wanna raise your kids, I'm gonna start raising them,' Volusia County Sheriff Mike Chitwood said in a September news conference. 'Every time we make an arrest, your kid's photo is going to be put out there and if I could do it, I'm going to perp walk your kid so that everybody can see what your kid's up to.'
The kids in question at the news conference: Two middle boys, ages 11 and 13.
In Missouri, a 12-year-old girl was suspended from school for an entire year after she told a fellow classmate about a potential school shooting threat that she found on social media, asking them how to report the threat correctly.
Her family is currently suing the school for a violation of her First Amendment rights.
'This is actually going too far,' said Dave Roland, the lead attorney on the girl's case. 'Sure, we want to be able to punish people who make true threats, even if they don't actually intend to carry out a shooting but they intend to scare people…But there's got to be a line.'
That line may be drawn soon, however, at least in Tennessee. Recently-filed House Bill 1314, as amended, would require arrests for threats of mass violence only when the threat is made 'knowingly and intentionally' by students who are 'able to carry out that threat.'
If passed, the bill would apply to any type of school, house of worship, government building, live performance or event.
The bill passed a key House panel this week, and is headed to a final vote in the House.
In the two years after the 2023 Covenant School shooting that killed six, the state legislature passed two laws that seek to cut down on violent threats towards schools.
Both were sponsored by Lundberg.
The first, passed in July 2023, required school officials to expel students if their investigation found a student's threat was 'valid,' though the term is not defined. The second law, passed in 2024, requires police to charge anyone—including children—with Class E felonies for making such threats, whether credible or not.
Deputy District Attorney General Roger Moore told The Tennessean in February the credibility of the threat, even if made as a joke, is somewhat irrelevant, as the 'making of the threat' determines the crime.
More: Nashville student says he regrets joke that ended in arrest as school threat charges surge
The U.S. Supreme Court largely disagrees, however.
In the 2023 Counterman v. Colorado ruling, the court set a much higher bar for what is considered a 'true threat' — a legal term used to describe threatening language not covered by the First Amendment.
The ruling determined that a 'true threat' requires proof that the speaker consciously disregarded a 'substantial risk' that their speech would cause fear or harm to others, and states that the recklessness of the speech must be judged by the speaker's awareness of the risk, and not the listener's perception of the threat.
The ruling cautioned that without legal protections for 'unintentionally' threatening speech, 'a high school student who is still learning norms around appropriate language" could "easily go to prison" for "unreflectingly using language he read in an online forum.'
Moore stood by his previous statement when asked about his stances' potential conflict with the U.S. Supreme Court ruling.
'Every case stands on its own facts, and I stand by what I said about law enforcement and our office prosecuting these cases," he said in a recent statement to The Tennessean.
A spokesperson for his office added 'the statute states you are prohibited from making the threats.'
The zero-tolerance penalization of children — whether criminally or academically — for statements that could have been misinterpreted by listeners or made in bad taste by speakers is where many First Amendment experts are expressing concern.
Roland, director of litigation and co-founder at the Missouri Freedom Center, is the lead attorney on the current First Amendment lawsuit involving the girl suspended for attempting to report the shooting threat.
The girl, a student in Cape Girardeau County, Missouri, identified in the lawsuit only as A.N., saw a message on Snapchat that threatened to commit a mass shooting at her high school.
A.N. reached out to another child in her school district, explaining what the threat was and recreating an approximate image of it, as she had failed to capture a screenshot of the message.
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The second child shared the conversation on social media, unintentionally giving viewers the impression that A.N was making the threat — not reporting the threat.
'In context, it's clear she was asking about something she had seen somebody else post,' Roland said in an interview. 'She was not making a threat herself. She was asking one person that she thought would know (what to do), and then that kid then posted it and basically gave everyone the impression that she was threatening the school.'
Roland stressed the school 'did not have this context' and he believes they responded reasonably, initially, by cancelling classes and extracurriculars for the next day.
'But very quickly, the police department investigated this and found out the context, and they very quickly came to the conclusion that this kid wasn't making a threat,' Roland said. 'And they communicated that to the school. The school took the position of 'we've got a zero-tolerance policy.''
A.N. was initially suspended for 10 days, and after returning to school was notified she would be suspended for another 170 days, or the rest of the school year.
According to Roland, at a school board appeal for A.N., both the principal and the superintendent agreed that A.N. never actually threatened anyone in the school.
'The bottom line is, is neither of them had any evidence that she intended to threaten anybody,' Roland said. 'Neither of them had any evidence that she was an ongoing threat to the community in any way, and yet they imposed the maximum possible penalty on her.'
Roland said the case presents a number of potential issues, particularly surrounding the free speech rights of kids, both online and outside of school.
'The Supreme Court has reaffirmed the idea that you don't check your First Amendment rights at the schoolhouse gate, and that you are entitled to protection as long as it is not causing a disruption in the school,' he said.
Jennifer Huddleston, a senior fellow in technology policy at the Cato Institute and an expert in online First Amendment rights, said the determination of what is a 'true threat' is becoming more gray as social media becomes more prevalent. Intent, she said, is a key factor.
'We can see that there are cases where true threats conveying an intent to commit violence are not protected First Amendment speech, and can be reacted on for public safety. And that's probably the grounding of many of these laws,' she said. 'When we consider this in a content moderation conversation, however, there are questions around when it is clear when something is a true threat, and how platforms should react. How do we know if it is a true threat versus maybe reposting a quote from a movie, or from a video game, or from a song?'
This is where many of these cases hit a snag. Most schools can reasonably argue the threats, whether credible or not, create disruption in the classroom when administrators have to enact safety measures.
Roland argues that while the disruption clause is a genuine factor in his case, if any student should be penalized for creating a disruption, it should be the student who shared the threat without context.
He also said the 2023 Counterman v. Colorado decision should be a predominate factor in any of these cases.
'What the court ended up saying is that the First Amendment requires a showing of recklessness. In other words, you cannot base a prosecution or conviction or punishment simply on the basis that somebody else perceived this as a threat,' he said. 'You have to show, at a minimum, that the speaker was aware that what they were saying could be perceived as a threat.'
Roland said under this interpretation, there is 'no way' a court could find a 12-year-old girl liable for recklessness while trying to report a threat.
Roland said that despite the valid sensitivity around the idea of protecting students' free speech rights when it extends to potentially violent statements, the zero-tolerance laws need work, because kids may become less likely to report threats they see online for fear of punishment.
"That's part of the reason that I feel like our case is such a valuable vehicle for illustrating the problem," he said. "Because…the school district sent home a letter that noted the prevalence of school shooting threats on social media, and specifically said, if you see something, say something. I pointed out she saw something and she tried to say something.'
The USA TODAY Network - Tennessee's coverage of First Amendment issues is funded through a collaboration between the Freedom Forum and Journalism Funding Partners.
Have a story to tell? Reach Angele Latham by email at alatham@gannett.com, by phone at 931-623-9485, or follow her on Twitter at @angele_latham
Vivian Jones contributed to this report.
This article originally appeared on Nashville Tennessean: School threat laws: New measures raise First Amendment worries

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