Artistic expression can take many forms, whether it’s comedic, dramatic, or even violent. According to a California Court of Appeals opinion, if you choose to artistically express yourself in a violent or threatening manner—let’s say in song lyrics—you could be criminally prosecuted by the State of California even if you never intended anyone to perceive your message as an actual threat.
EFF has signed onto an amicus letter by the ACLU of Southern California that asks the California Supreme Court to revisit the lower court’s decision in People v. Murillo. Legions of artists will risk prosecution under this ruling for artistic speech that they did not intend to be threatening. As a result, they might self-censor, and our artistic palette will be less richly colored because of it.
As explained in the letter, the Court should hear the case for two specific reasons.
First, in considering what constitutes “threatening speech,” the lower court failed to include protections required both by the First Amendment and the general precepts of criminal law when it held that the criminal statute requires only a general intent to communicate rather than a specific intent to threaten. The specific threat statute at issue has not been specifically interpreted in these respects, and the Court should step in to provide clarity.
Second, the lower court disregarded the context of the lyrics when making a point that a reasonable listener would understand the lyrics as a threat. In a previous case, In re George T., the California Supreme Court threw out a criminal threat conviction, under a different threat statute, where the supposed threat was contained in a poem. In George T, the Court found the poetic context of the supposed threat to be critical. As the Court explained, art is subjective by nature, but the Court of Appeals in Murillo used only the objective standard that a reasonable person could construe an artistic work to be a threat.
For above-stated reasons, we ask that the Court grant the defendant’s petition for review, and establish a clear and protective standard for when artistic speech may be criminalized, in order to undo the chilling effect of the lower court’s opinion.