Hate Crime Statute California
In In re M.S. (1995) 10 Cal. 4th 698, 710-71142 Cal. Rptr. 2d 355, 896 P.2d 1365, the Supreme Court further explained the development of the law in discussing the constitutionality of sections 422.6 and 422.7, the "hate crime" STATUTES:
"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 . . . ." '
As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression.
Nonetheless, statutes criminalizing threats must be narrowly directed against only those threats that truly pose a danger to society.
"A threat is an ' "expression of an intent to inflict evil, injury, or damage on another." ' When a reasonable person would foresee that the context and import of the words will cause the listener to believe he or she will be subjected to physical violence, the threat falls outside First Amendment protection." (10 Cal. 4th at pp. 710-711.)
As can be seen, to pass muster under the First Amendment, a threat may be punishable only if it expresses the intent to inflict evil, injury or damage on another person, or to perform illegal acts, i.e., only those threats that truly pose a danger to society may be punished.
In enacting section 422, the phrase "willfully threatens to commit a crime" is necessary in order to criminalize the threats. With reference to the hate crime statutes, the court concluded they "require proof of a specific intent to interfere with a person's right protected under state or federal law.
This requirement helps protect against unconstitutional application to protected speech. " (In re M.S., supra, 10 Cal. 4th at p. 713.)
Similarly, with regard to section 422, it requires the threat to commit crimes or illegal acts in order to take it out of First Amendment protection. (See People v. Dias, supra, 52 Cal. App. 4th at p. 51 "the federal courts after Kelner have concluded that not all threats to perform illegal acts are protected by the First Amendment".)
"Violence and threats of violence . . . fall outside the protection of the First Amendment because they coerce by unlawful conduct, rather than persuade by expression, and thus play no part in the 'marketplace of ideas.' As such, they are punishable because of the state's interest in protecting individuals from the fear of violence, the disruption fear engenders and the possibility the threatened violence will occur. Citation." ( In re M.S., supra, 10 Cal. 4th at p. 714.)
As noted by the court in People v. Brooks (1994) 26 Cal. App. 4th 142, 149 31 Cal. Rptr. 2d 283, this is precisely why section 422 was enacted: " Penal Code section 422 was passed by the Legislature as part of the 'California Street Terrorism Enforcement and Prevention Act' of 1988.
A portion of that act provides: 'The Legislature hereby finds and declares that it is the right of every person . . . to be secure and protected from fear, intimidation, and physical harm caused by the activities of violent groups and individuals. It is not the intent of this chapter to interfere with the exercise of the constitutionally protected rights of freedom of expression and association.
The Legislature, however, . . . finds that the State of California is in a state of crisis which has been caused by violent street gangs whose members threaten, terrorize, and commit a multitude of crimes against the peaceful citizens of their neighborhoods.
These activities . . . present a clear and present danger to public order and safety and are not constitutionally protected.' ( Pen. Code, 186.21, italics added.)" (26 Cal. App. 4th at p. 149.)