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View Diary: This is What a Police State Looks Like. (172 comments)

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  •  That's incitement, not threat. (5+ / 0-)

    Different area of criminal law, different legal tests apply.  The only question here is whether it was a "true threat," eg, whether it was intended and perceived as an actual threat (rather than hyperbole, satire, etc).  Imminence, AFAIK, is neither here nor there for the analysis.

    •  Ah, looks like imminence is a statutory element (4+ / 0-)
      Recommended by:
      thestructureguy, edrie, Lujane, erichiro

      in "terroristic threat."  Note that it's not a constitutional requirement but a requirement of this particular statute.  So it may not be a terroristic threat (which would require imminence, although query how that's construed under CA precedent), but it's probably a true threat.  As such, there's no first amendment protection for it.

      •  And a little discussion of the statute in In Re (3+ / 0-)
        Recommended by:
        edrie, VClib, Lujane


        The minor argues that section 422 requires a showing of "imminent" conduct. He claims the circumstances demonstrate he lacked the immediate ability to carry out the threat which he characterizes as nothing more than "juvenile braggadocio." Section 422 requires only that the words used be of an immediately threatening nature and convey "an immediate prospect of execution" (italics added) even though the threatener may have no intent actually to engage in the threatened conduct. The threat is sufficient if it induces a "sustained fear." The minor's statement was of an immediate, unconditional nature and reasonably caused the victim to undergo sustained fear. That is all the statute requires. It does not require the showing of an immediate ability to carry out the stated threat. The minor's threat to shoot the victim was not "on its face and under the circumstances in which it [was] made" either conditional or in jest. According to the testimony, it was without equivocation or ambiguity. The minor's statement is well within the contemplation of section 422.
        The threat was also sufficiently specific. Although it did not communicate a time or precise manner of execution, section 422 does not require those details to be expressed. It is enough to threaten "death or great bodily injury to another person." The minor's threat to shoot the victim easily satisfies that element of the statute.
      •  The question is what is or is not permissible (3+ / 0-)
        Recommended by:
        Lujane, atana, lyvwyr101

        under the 1st amendment.  Not what this or that ordinance has to say.

        The Supreme Court has said that speech is protected unless X,Y,Z.  Unless you claim a Facebook post isn't speech as defined by the 1st amendment then it is protected unless X,Y,Z, regardless of any particular ordinance.

        Except, of course, that the system is in the midst of shredding the 1st amendment, so we probably can't rely on previous Supreme Court rulings.

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