Lowery

In a recorded telephone conversation with his incarcerated wife, defendant said he would kill Joseph Gorman, an 88-year-old man who had accused the couple of stealing $250,000 from his mobilehome and who had testified against them in court. Based on defendant's comments, he was charged with violating a state statute that prohibits "willfully" threatening violence against a crime witness or victim. (Pen. Code, § 140, subd. (a) (section 140(a)); further undesignated statutory references are to the Penal Code.) A jury convicted defendant. On appeal, defendant argued that because the statute lacked a specific intent requirement, it infringed his right to free speech under the federal Constitution's First Amendment. The Court of Appeal disagreed and upheld the conviction.

Does section 140(a) violate the First Amendment, as defendant contends? Or does the statute target only "true threats," a category of speech that has no First Amendment protection?

We construe section 140(a) as requiring proof that a reasonable person would understand the allegedly threatening statements—when considered in their context and surrounding circumstances—"to communicate a serious expression…

In a recorded telephone conversation with his incarcerated wife, defendant said he would kill Joseph Gorman, an 88-year-old man who had accused the couple of stealing $250,000 from his mobilehome and who had testified against them in court. Based on defendant’s comments, he was charged with violating a state statute that prohibits “willfully” threatening violence against a crime witness or victim. (Pen. Code, § 140, subd. (a) (section 140(a)); further undesignated statutory references are to the Penal Code.) A jury convicted defendant. On appeal, defendant argued that because the statute lacked a specific intent requirement, it infringed his right to free speech under the federal Constitution’s First Amendment. The Court of Appeal disagreed and upheld the conviction.

Does section 140(a) violate the First Amendment, as defendant contends? Or does the statute target only “true threats,” a category of speech that has no First Amendment protection?

*422 We construe section 140(a) as requiring proof that a reasonable person would understand the allegedly threatening statements—when considered in their context and surrounding circumstances—“to communicate a serious expression…

The First Amendment allows states “to ban a ‘true threat.’ ” (Virginia v. Black (2003) 538 U.S. 343, 359 [ 155 L.Ed.2d 535 , 123 S.Ct. 1536 ] (Black).) The majority opinion, which I have joined, is consistent with the First Amendment. It upholds the constitutionality of Penal Code section 140, subdivision (a), on the ground that the statute applies “only to those threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, ‘a serious expression of an intent to commit an act of unlawful violence.’ ” (Maj. opn., ante, at p. 427, quoting Black, supra, 538 U.S. at p. 359 .) I write separately to discuss more fully the Ninth Circuit’s mistaken belief that a “true threat” requires something else, namely, proof that the speaker subjectively intended the statements be taken as a threat. (See U.S. v. Bagdasarian (9th Cir. 2011) 652 F.3d 1113, 1116-1118 ; U.S. v. Cassel (9th Cir. 2005) 408 F.3d 622, 631-633 .)

*429 As this court’s opinion points out, decisions prior to Black “ ‘almost uniformly’ ” applied an objective standard, not a subjective standard, to determine whether a statement was a…