The California Supreme Court imports a refined standard in People v. Lowery, 52 Cal.4th 419, 257 P.3d 72 Cal.,2011, to define a true threat as to maintain the constitutionality of penal statute.
Penal Code section 140, subdivision (a) (threat against crime
victim) addresses only true threats, as evaluated under a reasonable person
standard, and, as such, it does not violate the First Amendment. Appellant'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 she was
in prison, appellant telephoned her and made several statements to the effect
that 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 Supreme Court first observed that "true threats" are not
within the category of speech protected by the First Amendment. It then
rejected appellant'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. Rather, 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. (Virginia v. Black (2003) 538 U.S. 343.)
text © 2011 Darren Chaker. All Rights Reserved.
