While writing about California terrorist threat law, Darren Chaker decided to look at the statute from the start. In 1981, this Court found the former versions of sections 422 and 422.5 to be unconstitutionally vague. (People v. Mirmirani (1981) 30 Cal.3d 375, 388.) Subsequently in 1987, the California Legislature repealed sections 422 and 422.5 (Stats. 1987, ch. 828, § 28, p. 2587), and then in 1988, enacted a revised version of section 422 as part of the “California Street Terrorism Enforcement and Prevention Act” (Stats. 1988, ch. 1256, § 4, pp. 4184-4185). The new statute provided that a person could be convicted of making a terrorist threat if the person “willfully threaten[s] to commit a crime that would result in death or great bodily injury to another person, with the specific intent that the statement be taken as a threat, even if there is no intent of actually carrying it out.” The revised statute, adopting language virtually verbatim from United States v. Kelner (2d Cir. 1976) 534 F.2d 1020, required the threat “on its face and under the circumstances in which it is made is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and an immediate prospect of execution.” (Stats. 1988, ch. 1256, § 4, pp. 4184-4185.)
In Kelner, the defendant held a press conference and stated plans had been made to kill Yasser Arafat while Arafat was visiting New York. (United States v. Kelner, supra, 534 F.2d at pp. 1020-1021.) The defendant was subsequently convicted of violating a federal law that prohibits the communication of a threat in interstate commerce. (Id. at p. 1020.) On appeal, the defendant argued his statements were protected by the First Amendment because they were political expressions and he did not intend to carry out his threat. (Id. at p. 1022.) In upholding the conviction, the Second Circuit Court of Appeal found the statements were more than mere political opinions and were “true threats” as defined by the United States Supreme Court in Watts v. United States (1969) 394 U.S. 705 [89 S.Ct. 1399,22 L.Ed.2d 664]. (United States v. Kelner, supra, 534 F.2d at pp. 1025-1028.) The Kelner court ruled specific intent to carry out the threat was not constitutionally required as long as “the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution.” (Id. at p. 1027.)
The statutory language in section 422 was “carefully drafted to comport with the detailed guidelines articulated by the Kelner court.” (People v. Fisher (1993) 12 Cal.App.4th 1556, 1560.)
Section 422 defined the crime of terrorist threats as follows:
Any person who willfully threatens to commit a crime which will result in death or great bodily injury to another person, with the specific intent that the statement is to be taken as a threat, even if there is no intent of actually carrying it out, which, on its face and under the circumstances in which it is made, is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened, a gravity of purpose and an immediate prospect of execution of the threat, and thereby causes that person reasonably to be in sustained fear for his or her safety or for his or her immediate family’s safety, shall be punished by imprisonment in the county jail not to exceed one year, or by imprisonment in the state prison….
True threats are not constitutionally protected speech. (Watts v. United States, supra, 394 U.S. at pp. 707-708; In re M.S., supra, 10 Cal.4th at p. 710; People v. Fisher (1993) 12 Cal.App.4th 1556, 1559; see also United States v. Maxton (4th Cir. 1991) 940 F.2d 103, 105-106; United States v. Merrill (9th Cir. 1984) 746 F.2d 458, 462.) Application of section 664 to section 422 is narrowly directed to punish only attempts to make “true threats” which pose a danger to society and are unprotected by the First Amendment. (See In re M.S., supra, 10 Cal.4th at p. 714.) The specific intent requirement ensures the statutes will not punish rhetoric, opinion, or other protected speech. (See Id. at pp. 713-714.) Thus, the crime of attempting to make a terrorist threat will only punish attempts to utter unprotected speech.