Criminal Threats or Protected Speech?

Aug 12, 2016. By William Kroger.

As a criminal defense attorney, William Kroger has represented numerous people charged with terrorist threats, criminal threats and other crimes based on true threats. Sometimes the speech is protected by the First Amendment. Most recently, the United States Supreme Court defined a true threat in Virginia v. Black finding, “[t]rue threats encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” 538 U.S. at 359.

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The California Supreme Court looked at what constitutes a true threat in People v. Lowery, 201 Cal.App.4th 1549 (2011), where the defendant was charged with Penal Code section 140, subdivision (a) (threat against crime victim). The defendant's wife was convicted of theft of property from the elderly victim's home and sentenced to prison and ordered to pay $250,000 in restitution. While in prison, defendant made several telephone calls. Each of the prison telephone calls were recorded which a common and legal practice. Many recorded conversations revealed the defendant pledged he was going to kill the victim and the prosecuting attorney. On the basis of the recorded conversations, he was convicted of section 140, subdivision (a).

The California Supreme Court first observed that “true threats” are not within the category of speech protected by the First Amendment. It then rejected defendant's contention that because the statute lacked a specific intent requirement to intimidate the particular victim, it infringed on his First Amendment free speech right. The Court construed the statute as applying only to those statements that a reasonable listener would understand, in light of the context and surrounding circumstances to constitute a true threat, i.e., a serious expression of an intent to commit an act of unlawful violence which was consistent with Virginia v. Black (2003) 538 U.S. 343.)

Another commonly charged crime based on speech is California Penal Code 422(a) which defines a criminal threat. Even a conditional statement may be a criminal threat. People v. Melhado (1998) 60 Cal.App.4th 1529, 1540. However actual speech, not just conduct is required, and the speech must be objectively reasonable to convey a threat to bodily injury or death. People v. Franz (2001) 88 Cal.App.4th 1426, 1441-1442. There are several defenses to speech related crimes, and often the alleged victim may not be credible. Also, the alleged victim may not remember precisely what was said to constitute a threat which is why it is important to hire an attorney who have the victim interviewed by a private investigator without delay.

If you are charged with making a terrorist threat, criminal threats, online threats, or other true threat in state or federal court, contact Beverly Hills attorney William Kroger who has the experience to evaluate your case. It is critical to have an attorney with First Amendment experience review your case since the speech may have been protected by the First Amendment. A free consultation and review of the complaint is offered by William Kroger who has a support staff and attorneys who handle cases in Northern and Southern California at reasonable rates.