Freedom of Speech Case Law In California

The First Amendment to the United States Constitution states: "Congress shall make no law . . . abridging the freedom of speech . . . ." This fundamental right is applicable to the states through the due process clause of the Fourteenth Amendment. (Aguilar v. Avis Rent a Car System, Inc. (1999) 21 Cal. 4th 121, 133-134 [87 Cal. Rptr. 2d 132, 980 P.2d 846], citing Gitlow v. People of New York (1925) 268 U.S. 652, 666 [45 S. Ct. 625, 629-630, 69 L. Ed. 1138].) Article I, section 2, subdivision (a) of the California Constitution provides that: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. a law may not restrain or abridge liberty of speech or press." While these guarantees are stated in broad terms, "the right to free speech is not absolute." (Aguilar v. Avis Rent a Car System, Inc., supra, 21 Cal. 4th at p. 134, citing Near v. Minnesota (1931) 283 U.S. 697, 708 [51 S. Ct. 625, 628, 75 L. Ed. 1357]; and Stromberg v. California (1931) 283 U.S. 359 [51 S. Ct. 532, 75 L. Ed. 1117, 73 A.L.R. 1484].) As our high court has acknowledged: "Many crimes can consist solely of spoken words, such as soliciting a bribe ( Pen. Code, 653f), perjury ( Pen. Code, 118), or making a terrorist threat ( Pen. Code, 422). As we stated in In re M.S. (1995) 10 Cal. 4th 698, 710 . . .: 'The state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of First Amendment protection. In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is, " 'communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one's beliefs . . . ". . . a statute that is otherwise valid, and is not aimed at protected expression, does not conflict with the First Amendment simply because the statute can be violated by the use of spoken words or other expressive activity. ( Roberts v. United States Jaycees (1984) 468 U.S. 609, 628 [104 S. Ct. 3244, 3255, 82 L. Ed. 2d 462] . . . .)" ( Aguilar v. Avis Rent a Car System, Inc., supra, 21 Cal. 4th at p. 134.) Section 646.9, as it read in 1996, provided that: "(a) Any person who willfully, maliciously, and repeatedly follows or harasses another person and who makes a credible threat with the intent to place that person in reasonable fear for his or her safety, or the safety of his or her immediate family, is guilty of the crime of stalking . . . . "(e) for the purposes of this section, 'harasses' means a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, torments, or terrorizes the person, and that serves no legitimate purpose. This course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the person. "(f) for purposes of this section, 'course of conduct' means a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose. Constitutionally protected activity is not included within the meaning of 'course of conduct.' "(g) for the purposes of this section, 'credible threat' means a verbal or written threat or a threat implied by a pattern of conduct or a combination of verbal or written statements and conduct made with the intent to place the person that is the target of the threat in reasonable fear for his or her safety or the safety of his or her family and made with the apparent ability to carry out the threat so as to cause the person who is the target of the threat to reasonably fear for his or her safety or the safety of his or her family. It is not necessary to prove that the defendant had the intent to actually carry out the threat. . . ."