State v. William Schenk, 190 A.3d 820

Background

In Oct. 2015 defendant William Schenk distributed Ku Klux Klan recruitment flyers, placing two anonymously inside or at the front doors/mailbox of two Burlington residents (one Mexican American, one African American).
Flyers depicted hooded Klansman on horse with burning cross and flags; no explicit verbal threats.
Police identified and arrested Schenk after CCTV at a copy store; Schenk admitted distributing 30–40 flyers in "more white" neighborhoods.
State charged two counts of disorderly conduct under 13 V.S.A. § 1026(a)(1) alleging Schenk "engaged in threatening behavior" and sought a hate‑motivated enhancement under § 1455.
Trial court denied motion to dismiss; defendant entered a conditional guilty plea reserving appeal of that denial and was sentenced.
Vermont Supreme Court considered whether § 1026(a)(1)’s "threatening behavior" covers speech alone (true threats) or only physical conduct; held State failed to make a prima facie case and reversed dismissal granted.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether § 1026(a)(1) "threatening behavior" can be proven by speech (flyers) alone	State: charging information treats flyer distribution as threatening behavior creating public annoyance; assumed true‑threat doctrine would supply constitutional cover	Schenk: flyer distribution is expressive conduct; First Amendment protects speech; statute should not reach pure speech absent true threat	Court: "threatening behavior" construed to proscribe conduct, not pure speech; speech incidental to conduct may provide context but flyers alone do not satisfy the physical/imminence requirement; dismissal affirmed for lack of prima facie case
Whether the flyers conveyed imminent threat amounting to a true threat	State: imagery (burning cross, Klan) plus targeted placement in victims' homes implies intimidation and threat	Schenk: no explicit threat of imminent harm; recruitment message lacks immediacy or physical component required for statute	Court: even if true‑threat doctrine applied, the flyer conveyed recruitment/possible future harm, not an imminent physical threat; insufficient to meet statute as construed
Whether the State met the prima facie burden at Rule 12(d) hearing	State: presented victims’ testimony, police investigation, and defendant’s admission to distributing flyers	Schenk: evidence shows only distribution of flyers; no physical violence or imminent threat	Court: viewing evidence in State’s favor, facts still do not fairly and reasonably establish guilt beyond a reasonable doubt under § 1026(a)(1); prima facie not met
Whether court should decide hate‑motivated enhancement under § 1455	State: alleged hate motivation based on victims’ race and Klan imagery	Schenk: challenges underlying charge and constitutional issues; enhancement depends on valid predicate crime	Held: Court declined to reach § 1455 because underlying disorderly conduct charges were dismissed

Key Cases Cited

State v. Cole, 554 A.2d 253 (Vt. 1988) (defines a threat as a communicated intent to inflict harm and treats § 1026 as a public‑nuisance statute)
State v. Albarelli, 19 A.3d 130 (Vt. 2011) (construed § 1026(a)(1) to proscribe conduct not speech; set factors for assessing threatening behavior)
State v. Sanville, 22 A.3d 450 (Vt. 2011) (probation condition case holding threats must communicate intent to inflict harm; used to limit reach of "threatening behavior")
Virginia v. Black, 538 U.S. 343 (2003) (plurality) (true threats defined as serious expressions of intent to commit unlawful violence; cross‑burning can be intimidation)
Watts v. United States, 394 U.S. 705 (1969) (per curiam) (true threats are unprotected; contextual political hyperbole distinguished)
State v. Cantwell, 676 P.2d 353 (Or. Ct. App. 1984) (construed identical statutory language to reach only physical conduct immediately likely to produce force; speech alone insufficient)
State v. Hosley, 388 P.3d 387 (Or. Ct. App. 2016) (applying Cantwell: delivery or communicative acts incidental to speech do not satisfy the physical‑force requirement)