Early in March, San Diego Police investigated two threats of violence to high school campuses using social media. On March 5, they investigated a threat made to to Del Norte High School through the Burnbook app. On March 11, another threat on the Burnbook app was made against Mission Hills High School in San Marcos, Ca, indicating that the poster was building a firearm. The Burnbook app allows users to post pictures and texts anonymously, modeled after the “Burn Book” made famous by the notorious movie “Mean Girls.” Students in other schools also claim that the app is being used for cyberbullying. In these two instances, parents and the school principal contacted the SDPD immediately after discovery, but in both instances, it was found the threats were not “credible” because they were not specific enough.
This is just one of the many times the legal question of when “free speech” becomes an illegal threat not protected by the First Amendment has come up, given current events. Just recently, a Seattle man was sentenced for making Facebook threats against Officer Darren Wilson, though the judge believed he was merely expressing a strong reaction.
When Does “Free Speech” Rise to the Level of a Criminal Threat?
In California, Penal Code 42 defines the crime of “criminal threats,” which are defined as threatening to kill or physically harm someone, and:
- “that person is thereby placed in a state of reasonably sustained fear for his/her safety or for the safety of his/her immediate family”;
- “the threat is specific and unequivocal”; and
- “you communicate the threat verbally, in writing, or via an electronically transmitted device” (ie. cell phone or internet).
Criminal threats can be either a misdemeanor or felony depending on the circumstances and severity; the prosecutor will have the discretion to decide. You may also still be charged even if you did not have the ability nor intent to execute the threat. Penalties can be up to one year in jail, loss of a professional license, or loss of right to own firearms.
To be charged with Penal Code 42, the prosecutor must be able to prove that you fulfilled all the aforementioned elements listed out in the statute. Most importantly, there must have been reasonable fear for one’s safety under the circumstances.
The law is still developing over whether social media threats are free speech, or legitimate criminal threats. Oftentimes, the person posting social media statements is not ‘sending them’ to the intended target so the person(s) threatened may not be placed in reasonable fear that the threat will be carried out.
San Diego Misdemeanor, and Felony Lawyer
The Law Offices of David M. Boertje handles all misdemeanor and felony criminal cases including criminal threats. We have successfully represented many defendants, including those with criminal threat charges. Oftentimes, the accusations are exaggerated or frivolous, and the person could not have “reasonably” feared for his or her safety. If you have been charged with making criminal threats, contact attorney David Boertje today. We are prepared to mount an aggressive defense on your behalf.