Creative Writing—or Criminal Act?

It’s a parent’s worst nightmare: Masked teenage commandos raid the campus office and kill the principal. A second group of students sets bombs around the building, synchronizing them to explode at lunchtime. And on the roof, snipers fire at cops and bystanders below.

After he finished his assignments in a computer class one day last year, Brian Robertson—then a senior at Moore High School, in Moore, Okla.—penned that chilling scenario and saved it on the school computer’s hard drive.

Robertson insists the two pages of writing were fiction—a work of dark “literary art,” he told NEWSWEEK. But local prosecutors saw it differently. In April 2002, after a teacher discovered the file on the computer, the district attorney charged Robertson with the felony offense of “planning a violent act.” Robertson, who is now 19, became the first person in the Oklahoma City area charged under that law, which carries a maximum sentence of 10 years in prison.

Prosecutors concede there’s no evidence that Robertson’s work was anything but a disturbing burst of creativity. But they say criminal intent isn’t required to prosecute someone under the “planning a violent act” law, which was enacted by the state legislature in June 2001 following school shootings at Colorado’s Columbine High School and elsewhere. “When this case was presented to us, there was no question in any of our minds that Mr. Robertson had done something wrong,” says Richard Sitzman, an assistant district attorney in Oklahoma’s Cleveland County. “The issue was, had he done something illegal? And we ultimately decide that, as the statute is written, he had.”

The young man’s attorney, with assistance from the American Civil Liberties Union of Oklahoma, is trying to get the case thrown out on constitutional grounds. They argue that the law is unconstitutionally vague. But if they’re not successful, the trial could start in October. As it proceeds, the case is being closely watched by school-safety experts.

The two-page musing that set off the court battle was created during a particularly slow day in a Web-design class at Moore High. Robertson, who has spent his whole life in Moore, a suburb of Oklahoma City, says he was killing time when he came upon a text file on the school computer’s hard drive. The file began, “If the order to evacuate is given, you must do so immediately. Be prepared and leave as soon as possible, because your life depends on it.” He says he was intrigued by the “militaristic” writing style of the passage (which, it turns out, was a sample text preloaded on the computer by a software company). “It sounded cool, so I just took the idea and ran with it,” he says.

Over the course of several class periods, he added several paragraphs to make it sound like a military commander’s orders to student terrorists. The piece had no plot and no characters, just mock invasion instructions, delivered by an unnamed narrator and peppered with sarcasm. “Try to keep your weapon pretty much well hidden and scream a bit with everyone else to promote confusion,” he wrote in one passage. In another, he wrote: “Make every shot count. Life is cheap, ammo is precious.” There’s no specific reference to his school or to dates, but he did refer to one administrator by name. “The first place [sic] of business,” he wrote, is to “croak that ***** … for the sake of mankind and dysfunctional families everywhere.”

When Robertson finished the piece, he printed it out and saved a copy in an obscure folder on the hard drive. He says he then promptly forgot about it—until a few weeks later, when police detectives showed up at his house to search for weapons. Robertson initially denied writing the material, but fessed up during a police interview a few days later. The district attorney then filed charges and Robertson hired attorney Sara McFall and enlisted the support of the local chapter of the American Civil Liberties Union.

Robertson’s mother, Kathy Robertson, who has set up an extensive Web site defending Brian (it features a cover photo of George Orwell’s “1984”), says she had no problem with the police searching the house after finding the text file. “It would be negligent if they didn’t,” she told NEWSWEEK. But she says she was appalled that the district attorney filed charges even after the search turned up no guns, plans or other physical evidence. “It has completely devastated Brian,” she said. His arrest led to a flurry of local media coverage. (Initially, many reporters got the story wrong, saying that Robertson had sent an e-mail with instructions for a terrorist plot.) He lost his job at Taco Bell, which he’d held for two years. He lost many of his friends, after parents warned them to stay away from Robertson. And he was suspended from school, forced to finish his final semester through correspondence classes. The family’s legal bills are already “tens of thousands of dollars”—all, his mother says, because of an exercise in creative writing.

Oklahoma isn’t the only place where authorities have started scrutinizing students’ writing for signs of trouble. In the past four years, juveniles have been suspended, expelled and arrested—though not prosecuted—in Virginia, Wyoming, Arkansas, California and Texas, among other states, for penning dark poems, short stories and essays. School administrators say they’re simply trying to prevent a repeat of the Columbine scenario. But civil-liberties advocates say such restrictions on speech are egregious—and, in the case of the Oklahoma law, clearly in violation of the First Amendment. “The fact that they’re trying to criminalize speech—to make expression subject to time in the penitentiary—is outrageous,” says Mark Henricksen, general counsel for the American Civil Liberties Union of Oklahoma. Even Richard Sitzman, the prosecutor in the Robertson case, told NEWSWEEK that the Oklahoma law has problems—mainly that it’s too vague and overly broad. Still, he thinks it would be possible to rewrite the law in a way that it could pass constitutional muster and still outlaw essays such as Roberson’s.

For the student himself, the future of the case law is insignificant. He’s concerned with his liberty. “At this point, the whole thing is a wild card,” Robertson says. He’s currently attending an Oklahoma City-area community college, where he completed a government class last semester. (A lecture on the Bill of Rights, he said, was particularly poignant.) And he’s thinking about majoring in creative writing. First, though, he has to get through his own personal courtroom drama.