Are Criminal Threats Protected under the First Amendment?
Iboa was then arrested for violating Penal Code § 69, for “deterring or preventing, by means of threat or violence, an executive officer from performing a duty imposed by law.” He was tried and convicted of violating seven counts of § 69.In a Nutshell: The Freedom of Speech, set forth in the First Amendment and applicable to the states under the Tenth Amendment, does not protect a criminal threat made to another because the speech is not public dialogue or an expression of opinion.
At trial, the jury heard evidence of how officers had received complaints in the past of Iboa playing loud music. When officers would respond, Iboa would curse at them and yell expletives, turn off his music and tell the officers to get a warrant.
Inside Iboa’s house were three children, ages six, three and one, as well as baggies of methamphetamine and a cell phone with a text message asking for Iboa to sell him drugs.
Iboa was sentenced to eight years and eight months in prison. The sentence on the resisting arrest charge was two years, but enhanced by three years for Iboa’s membership in a gang. Iboa also received an additional sixteen months for possession of methamphetamine for sale and sixteen months for felony child endangerment (Penal Code 273 (a)).
Iboa appealed his convictions under Penal Code § 69 to the Second Appellate District, arguing that his speech to firefighters and police officers was protected free speech under the First Amendment. Iboa argued that his threats were not a “serious expression of an intention to commit an act which would result in bodily harm.”
The appellate court first looked at the text of Penal Code § 69 and found the evidence certainly supported a conviction based on Iboa’s attempt to threaten the fire fighters from putting out the fire. The issue then became whether the First Amendment protected Iboa’s speech.
The court noted that Iboa’s speech was not “public dialogue” in that it was not an expression of opinion about a matter of current events, for example. In fact, it was a threat to perform illegal acts, which the court noted the state “has great latitude to regulate.” The court noted that although Iboa perhaps could not immediately carry out his threats, saying “I’ll take care of you guys’” implying he'd fulfill his threat in the future, this did not make the speech protected.
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