In City of Los Angeles v. Herman, published August 28, 2020, the Second District Court of Appeal, Division 2 affirmed a trial court order issuing a workplace violence restraining order imposed on the defendant under Code of Civil Procedure section 527.8, restraining the defendant's contact with a deputy city attorney. The defendant, who regularly attended city council meetings in the plaintiff city and in Pasadena. At multiple meetings of the defendant's city council over a two-month period, the defendant publicly revealed the deputy city attorney's address in Pasadena, swore at the attorney, submitted speaker cards with the attorney's name along with a Ku Klux Klan hood and SS lightning bolts and with the attorney's home address accompanied by a swastika (the defendant's expressed belief was that the attorney is Jewish), and said loudly and in a threatening manner, "F___ you, [attorney's name]. I'm going back to Pasadena and f__ with you." The order precluded the defendant from harassing, threatening, contacting, or stalking the attorney, disclosing the attorney's residence, or coming within 10 yards of the attorney while attending city council and committee meetings. The order allowed the defendant to attend council and committee meetings. At a hearing, the defendant argued that he did not intend to threaten the attorney, but rather make statements about city council rules and his own homelessness.
The trial court found substantial evidence that the statements were threatening, that the threats were credible, that they would have put a reasonable person in fear for his or her safety, and that they were personal. True threats are not constitutionally protected speech. A true threat is one that a reasonable listener would understand, in context and in light of surrounding circumstances, to constitute a serious expression of an intent to commit an act of unlawful violence rather than an expression of jest or frustration. Because the trial court reasonably found that the defendant's statements would place a reasonable person in fear for his safety, the threats fell outside the scope of First Amendment protection. The subjective intent behind the threats is immaterial; the speaker need not actually intend to carry out the threat. Further, most of the prohibitions in the order concern conduct rather than speech; and the portions that do apply to speech are based on specific threatening conduct not protected by the First Amendment.
Comments