The Constitution guarantees us the right of free speech, right? So, can’t we say whatever we want?
Not exactly. It’s not an absolute. California law has long recognized specific limitations when it comes to speech, such as prohibitions against slander and libel. And California has even criminalized some speech, such as in the case of criminal threats and harassing messages.
A criminal threat in violation of Penal Code Section 422 occurs when someone threatens to kill or cause great bodily harm to someone else. It can be charged as either a “serious” strike felony offense within the meaning of the California three-strikes law, or as a misdemeanor.
What if the speech doesn’t threaten anybody? Can that be a crime? Yes, if you send repeated messages with the intent to annoy, that can be a violation of Penal Code Section 653m, a misdemeanor.
What Is a Criminal Threat?
A criminal threat doesn’t have to be verbal. It can be done electronically by text message, email, or through social media.
It’s particularly worrisome because folks tend to communicate by text message instead of in person or over the telephone. People think it’s no big deal to send multiple, repeated text messages but if the content is annoying, or threatening — watch out! It could be a violation of California criminal law.
What If I Didn’t Mean It?
What if I didn’t intend to carry out the threat? That doesn’t matter, if the sender intended the victim to perceive it as a threat. Criminal threats are made with the intention to place someone in fear of great bodily injury or death. Whether you intended to carry it out isn’t relevant under the law.
If the victim perceives it as a threat, and it causes the victim to be in sustained fear for his or her own safety, or for the safety of his or her immediate family, that is sufficient to satisfy the statute.
OK, so suppose the victim was in sustained fear, but how can they prove I intended to convey a threat? Well, look at the statement. A criminal threat must be so unequivocal, unconditional, immediate and specific as to convey a gravity of purpose with the immediate prospect of execution.
Is It Specific? Is It Reasonable?
You cannot commit a criminal threat if the threat is vague or unreasonable. The threat must be capable of making the people who hear it feel as if they might be hurt, and conclude that the threat is credible, real and imminent. If, for example, you walk into a store with a gun and threaten to shoot the clerk unless she gives you a refund, such a threat is credible and specific.
Where there is an intent to annoy, but not necessarily a threat, that message may rise to a violation of Penal Code Section 653m. Especially if there is a repeated barrage of unwanted messages.
What are the hallmarks of a harassing message? Well, if you send multiple messages to someone using obscene language or profanity after they tell you to stop, that is good enough to be prosecuted for PC 653m.
These days, people have verbal arguments with each other over text message instead of over the telephone. But when one party tells the other party to stop, emotions get in the way and the offending person may continue to send hurtful messages.
Think before you text. You could be in violation of PC 653m, a misdemeanor that could land you in jail for up to 180 days or on probation for three years. Or worse, charged with a felony criminal threat making you susceptible to three years in prison and convicted of a “strike.”
— Sanford Horowitz is a partner with Horowitz Law in Santa Barbara. The opinions expressed are his own. This article is not intended to provide legal advice. For legal advice on any of the information in this post, click here for the form or phone number on the Horowitz Law contact us page.