for this court to address one that this court has never had an opportunity to address in its prior first amendment specifically speech or campus school speech cases it's a set of facts that unique set of facts that the district court and have it's easily distinguishable from all the cases that they've relied on in both the district court opinion and in the briefing it's a unique set of facts that immediately distinguishes this case from all the cases that have heretofore come and been decided in jurisprudence by the ninth circuit where you're distinguishing this from wine are because the intent of the speaker i mean that's that's the only real distinguishing fact you've got off campus speech that relates to the potential for violent act on us that that's directed at students at the school campus but but but you want us to view it from the lens that because the speaker never intended it to be transmitted to anybody the school should be able to regulate it in any form absolutely even when it's brought to the schools attention through no misdeed of their own they they are told there's a student out there who has created a hit list as it's characterize that affects twenty thousand students who currently go to the school by a student who currently goes to school and a teacher at this school should be not permitted to take any regulation that might include not letting the student return to campus until it's clear that he doesn't pose a harm when he also says they must die right in the journal and he lives near the school sure and when they search his house he has guns  did not think there are guns in the home just to be clear he did not have any operable guns in the home and when the sheriff went there i just want to be clear because it's actually important factual distinction in the record the share found there was there was no steps taken to enforce this there was no right he didn't get charged with a criminal offense correct that you also have an oregon statutory notification requirement to parents of the students identified on and so once the school district learned of that hit the test as it were was it compelled under oregon statutory notification to notify the parents of those students identified on the hit list let's read the language of that statue language of the statute says the superintendent of the school district has reasonable cause to believe that a person while in school is or has been in possession of a list that threatens harm to other person shall notify a the parent or guardian of any student whose name appears on the list as a target of the harm and be any teacher school employee whose name appears on the list as a target of the harm we've identified some additional statutory sections in our briefing that show that this while in school is crucial  means within school property and absolutely my answer to your question is absolutely there was a trigger here had this been found in school and i want to go back to a come of it you made right at the beginning which is there was this hit list that was being brought to school in fact that's not the case here at all and we can i know he didn't bring it to school his mom found it she told her therapist the therapist reported it to the police it there's a long chain but it got to the school the school was notified and it seems that in terms of balancing the regulation of his speech and the effect on him and the school's duty to the health and safety and the the operation of the school that letting them respond to that identifiable threat of school violence cool's may take disciplinary action in response to off campus speech that meets the requirements of tinker two responses to that again why in our was not dealing with speech that was private speech that the speaker never and it's not just intent he never the speaker here never disclose that to any third party much less directed at school never this was private journalling that never intended to see the light of day and he did nothing it would be one thing if he didn't intend never intended anyone to see it when you're just finding reasonable forsee ability do we consider whether the threat of whence is reasonably foreseeable to disclose upon burning of the threat whether the threat of violence would have been reasonably foreseeable to the student when he created the threat or whether the threat of violence would have been reasonably foreseeable to the student when he created the threat if the threat or to  or some combination thereof i'm pretty sure that attests that when people write these things i mean i can't see it being a feasible test that we only go to the mind of the student that he never intended someone to find out her i'm glad your honor answered this question because it highlights exactly why in our case we do not believe this even needs to get to the why in our next system for c ability test this transcends the school speech cases this transcends the true threat speeches cases because this was truly private speech never intended to be disclosed and never intended by this or in the speaker never in fact disclosed to any third party so your question goes to whose perspective are we looking at when we judge this foreseeability test well if you look at the cases some cases look at it from the perspective of the student some cases look at it from the perspective of the school board in fact in the c r case they look at it from the perspective of so is it your view that ok first because the mother's concerned she sees that i mean there's other concerning things in the journal about him threatening to kill us parents and when he's talked about don't waste there's a lot but that wasn't the mother shows it to the therapist therapist feels that she has to report to the police the police report it to the school is it your position that the school should have done nothing no that is not our position the school had the right in fact when the school found out she was already in place custody he was already being given at the hospital taking a mental health exam there were to disabuse one thing this was not about preventing a safety concern at that point he was already in custody they expelled him for a year under threat of criminal prosecution if school for assessing the school threat was really so important they would have administered the s t t the student threat assessment test they never did that this was a punitive measure this was not about taking some immediate emergency steps to assess the situation they did that and we're not contesting they have the right to do that so that's  question here isn't really whether the school could respond to the information it was how they respond exactly your argument isn't that they responded to protect students safety but rather they continued to expel him for prolonged period after he was already found to know to not be a threat as a form of punishment because it created all this havoc that's exactly right your honor and so we should be evaluating not the fact that they responded to his speech but the extent to which they responded and that should be balanced against both his intent for it to be heard the nature of the speech and how long they carried out the punishment that's exactly right i want to go back to a question you asked a moment ago you about again whose perspective are we judging this for c abilities that from a perspective of the student for perspective of the school well going in all those cases in the c r case in the wind our case and all these cases that are cited or lied upon and listed in the winer case they looked that question at the time the disclosure of the speech was made to a third party and when it's made to a third party then it really doesn't matter whether you're asking it from the perspective of the student or the school it's what a reasonable person anticipate reasonably foresee that this speech is going to quote reach the school here where it was never disclosed by the speaker to a third person we can't how could we possibly ask that question but from the perspective of the student which is exactly why this line of cases where the speaker never intended that speech to be disclosed to a third party much less direct at the school that's why this is not even a political to this weiner nexus and forsee ability test but rather fails this threshold test that's articulated as we noted in the weiner excuse me not the one or the porter case and the bell v e towanda case which is if this is private speech that the speaker never intended or took steps to disclose to any third person much less direct at school we don't even reach any of these other tests we don't we don't reach the nexus we don't reach the foreseeability test because that is so clearly subject to the default strict scrutiny protections of the first amendment and there is a there's circumstance to i mean these cases are very circumstance driven and if that if that student speech had then even hate speech where he just wrote you know unspeakably nasty things about some protected group but never intended anyone to see that and somehow that came to the school's attention through no intention of his own to punish him for that when it would cause no it would only be the school publicizing it that would cause the havoc i could see your point where his intent there should w very only in whether he should be disciplined for something that's essentially his thoughts he just happened to put them down on paper but the other end of the spectrum the thoughts here are i'm going to kill people now whether he intended to carry that out once the  notified that someone has written down that they have a headless specifically not just i hate all students not a junior but twenty two students are named very specifically with they must die and he isn't a home that has weapons and while they were taken and the immediate threat was quelled the school's response at some point should we suspend him for a day for a week make sure his mental health counseling that there is no continuing threat here would seem a rational and reasonable response to their learning of this speech i i do feel that there is some concern here that to then expel him for a year and to leave this on his record punitive then responsive and and there is some concern that where does the school get to discipline beyond what seems necessary to carry out their functions yeah in your honor again we have not contended that they had no right to take emergency measures and we've pointed out that he was already in custody those emergency measures were in place but to go back to your question that this is a circumstance specific driven inquiry i want to read keep him in lived close to the school and he still would be a student at this school right correct ok but that was already the point at which the police and every other person who had found this there was no weapons in his but that psychologist that gave an opinion didn't know anything about the graphic pictures of him killing his parents and that his suicide threats right so the opinion is limited to what that person knew right that psychologist was several months later and i'm talking but that was we're talking before even the hearing when art the sheriff and the school it already found that there was no identifiable three here i see that i've got about two minutes left i would like to reserve good morning good morning may it please the court blake frye for the a pelleas if i could just for a second review the timeline of events because i think they're they're obviously important so on in evening during the school year the police warned the pallies school district here that one of its high school students had created a hillis the next day the police go to the school with a copy of the hit list they also know that the prior evening the police also informed the district that they had confiscated guns and ammunition from the home the guns at least one of them was a working firearm they weren't in operable that's that's  not accurate anyway the next day they go to the school with a copy of the hit list to show that copy of the hit list that it's titled my hit list to as you've noted it says you know all these people must die and i am god they  police also tell the administrators that the hit list was contained included in a notebook that had other graphic descriptions of violence in depictions of violence including in school violence and that also contained you know a suicide note and the other things that you've seen in the in the in the notebook later that same day the school learns that the student had been released from custody this the school also learns that day and again as you've noted the school knows that he lives close by they also learn that the parents of taken back to the house the guns and ammunition that have been confiscated the day before it's when the school learns this that they call they call the parents and they say the student is barred from campus for the time being he's suspended and of course ultimately that suspension turns into an expulsion notified that twenty one twenty one people on the last or twenty i think it's i think it's twenty three and i think one of them was a teacher ok so they notified all those people and then how it ends up in social media and correct i mean want to know all correct and warning right once i mean once they notify twenty two or twenty three people word inevitably gets out and this this causes the school district the police issue to put up a press release of their own the district issued a press release because they of course the word had gotten out and and their concern is that any response to this would be unconstitutional because it's it's his free speech and he never intended anyone to see it it's basically his thoughts i think to some extent the pelleas have parents have conceded that the schools response at least to threats of violence is not necessarily unconstitutional once it came to their attention but so what might have been initially a constitutional response where they notified people they took certain steps and they at least temporarily barred him from campus until they were satisfied that he did not pose a threat can that then become an unconstitutional response to his speech by becoming punitive instead of protective of their role as the school administration to continue to bar him from campus when he's not posing any threat when it's simply punish him for him for speech that he made that he never intended anyone to see but by the school's acts of having to publicize that created the havoc that naturally ensued from that the parents coming in and complaining and and so that justifies keeping him off campus for more than a year or a year and leaving this permanently in his record when there's no evidence he ever really intended to carry out any of these threats they were just his thoughts does it then become unconstitutional at some point to do that well first of all we've never agreed that he wasn't a threat but one of the things addressed in weiner is that it doesn't matter you know the student in wiener head allege that his comments threatening a school shooting were only a joke that they weren't serious and what the court in weiner said was we don't have to discredit that argument it doesn't matter the point is that when this school received the information based on the face of that information it was reasonable for the school to proceed as if the threats were not a joke and same here when the school received the hit list it was a reasonable for them to proceed it were serious and that's what they did and everybody else who saw the hitlist proceeded as though it was a serious too including the mother who informs showed the hit list in the other parts of the notebook to her therapist who then called the police and then the police w rn the school but once you once you can see that some sort of discipline is constitutional it doesn't matter at that point the degree of discipline that you're talking about and this is another issue that was was raised  know again we don't know it's not the court's business to assess the propriety of the particular discipline if any restriction of the speech is constitutional that it's relevant whether you're talking about a ten day suspension or a ninety day expulsion or well the basis for the expulsion to the extent that it's based on the disruption the to hit list with the to hit less cost and that only cost is controlled by weiner and there's been some school's response was beyond what would was constantly required by keeping a permanent record in that particular student's file about what happened when all of the concerns had been quelled and he was no longer a threat to t school or anyone else that to have that be something he had to carry with him going forward was was an unconstitutional extension of the right of the school to regulate the speech why wouldn't that apply here as well but there's no evidence here that there was any the that this was punitive this is sure it is there very specifically said all the disruption he caused and the parents who are coming and arguing that if he came back to school they'd pull their kids out and they were punishing him for all of the aggravation he caused them not because there was ever any evidence he was going to carry this out because there wasn't well but it's weiner it's weiner in the tinker standards that control if if if there is if the speech is reachable by the school in the first place then then and cause a disruption or interfere with the rights of well but judge fisher wrote it no i don't why i think though that the point that that that's made there and that i've been kind of trying to make here is that in this spectrum of is it simply because what we would find an immediate response to an immediate threat is constitutional and perhaps even a suspension or an expulsion for some period of time to both confirm the threat no longer exists and perhaps to punish is ok but it doesn't become is it constitutional for everything the school does after that regardless of their motivation whether it's punitive or safety measures that we that we just have to throw up our hands and go no if they could respond in the first instance then everything we do after that is beyond the scope of the court to look at it and go now you've gone into unconstitutional territory now you are punishing someone for speech beyond what was reasonable and necessary it is no longer the least restrictive means you've gone beyond i if you cause a disruption according to your standards then the speech can be restricted and that includes any discipline as long as any discipline is constitutional then again the degree of discipline doesn't matter unless you get into some sort of agreed just you know due process violation where and then we're going to make some contentions on that i think they they do say first that you for the stat protocol in determining whether salem's hitlist amounted to a credible threat that was one thing they were and then but then the process i think they made a they claimed that he was claim and those protocols are not meant to assess the propriety of any discipline there are only meant to assess whether there are just tools that the school can resort to if they need to to assess whether somebody is a danger they're not meant to assess whether you know it has to assess the propriety of any discipline ok so in terms of if the school can notify people and if we get past all of that that based on that then you have a hearing how how in your view  steps the first step is deciding is an assessment of whether the speech is reachable by the school in the first place even though it originates off campus and in weiner the court mentioned a couple of threshold test that other jurisdictions had used but it rejected those tests specifically in cases when the speech issue amounts to an identifiable threat of school violence and so there is when you have an identifiable threat of school violence like we have here there is no more threshold test the test is deemed passed because an identifiable threat of school violence is always a legitimate school concern and then step two is does the identifiable threat of school violence or does a does discipline comport with in particular the standards of tinker and that's what the district court did here was find that the circumstances in the speech issue here was in relevant respects  speech and that the discipline comported with team care because that speech had cause a disruption because it had interfered with school activities because it had interfered with the other students rights to be secure and and to be let alone so how would you fashion the foreseeable reasonable for civility taft well again what weiner says that we don't we don't employ any test if the speech at issue is an identifiable threat  school violence and you know in one of the things that the district court said in response to a similar argument is you know if we if we accept the argument that the school couldn't have done anything because the  it was not reasonably foreseeable but the hitless would find its way to campus that effectively insulates from discipline the would be school shooter who plot secretly in his home in doesn't intentionally direct his plans towards anybody and that's that's obviously an untenable outcome the weiner decision came after levein and although in love vine the court looked at the scope of the punishment and found that it extended beyond what was needed or constitutional in wiener the court does look at that while holding that the douglas county actions didn't violate the first amendment they were not necessarily  implying approval of the particular response and judgement on goes on to say it's not the responsibility of the court to parse the wisdom of their actions but rather just to determine whether they were constitutional so at least suggesting in that case that although le vine got into what the school district did and found that the permanent record aspect of it was unnecessary and therefore not justified constitutionally judge mckeown seems to be indicating what i think your position is whatever they do in response to what's a constitutionally permitted response to the threat it's not for the court to come in later and judge it correct i mean that's how i re weiner it is exactly that way says listen there is aspects of this punishment that is maybe more than was necessary but our decisions are our job to decide whether the discipline in the first place is constitutional and once we've made that decision we don't get into that degree of discipline aren't thank you i have put the cart before the ox so long as anything can be labeled as an identifiable school threat you don't have to go through any of this analysis you don't have to go through the foreseeability the next is the threshold test we have a case because an identifiable school threat is an identifiable school threat and that's the end of the analysis the the  e proctor case stated private writings made and kept in one's home enjoy the protection of first amendment as well as the fourth for such writings to lose their first amendment protections something more than their accidental unintentional exposure to public scrutiny must take place that's exactly what we're dealing with here this was never disclosed to a third person in fact in the porter case i said proctor a moment ago porter case that actually was disclosed with that person private writings in your home that aren't intended for anyone else to be you are protected by the first amendment great and what if that in this case it was not a specific plan but what if it was what if it was more of an outline i'm going to go to the school on this day i'm going to enter these stores i'm going to bring these weapons i'm going to shoot these students and find them and all of that was in his private journal with no intent for anybody to ever see it but it was discovered and brought to the school's  they can do something can't they i don't know that's not the case before us today what we do know is that mr c l m never took any step steps well that person hasn't taken any they've only written them down they key could just as easily argue i was just thinking about it it was just it was it was a fantasy it was it was you know i wasn't something i was actually going to do or in this case you've got these people must die and specific names so it's not just generic it's very specific there's a nexus to the school that satisfies the first step or tinker you've got something that does that identify students the places you i knew i know you describe them as just people he knows but they're all students at the same school that's the same and what you're describing your honor is speech that would qualify as a true threat and therefore not be entitled to the first amendment protection but again under the puerto test and others that we've cited to be a true threat to lose the protection of the first amendment be lawfully punished the threat must be intentionally or knowingly communicated to either the objects of the threat or third person importantly whether speaker intended to communicate a potential threat is a threshold issue and a finding of no intent to communicate obviates the need to assess whether the speech constitutes a true threat so the answer to your question is no we maybe the police under that circumstance could do something the school cannot not a true threat so not protected speech again it's this thought cities having it's still violence directed at other students at the school so it's got first amendment protections but the first amendment still allows for regulation in the least restrictive means to provide for balancing of your rights and and and what what the how it's going to affect these other people and so again the school has a responsibility here and i think you've already acknowledged they could do something i see that i've gone over my time  at the school if there is a true threat they can now not based on this jury and they did and they took steps and we haven't contested that it was ok when they found that out he was already in custody that police had already found there's nothing here to arrest him for there's no actual threat here and the school went above and beyond its own policies it one above and beyond the old statute and informed everyone everyone and their parents and their children and the entire community they publish this in the whole entire thing in contravention of their own policies and of the