California Court Rules Artistic Expression in a Violent or Threatening Manner Can Be a Felony

First Amendment State Courts

In People v. Murillo, 238 Cal. App. 4th 1122 (Ca Ct. App. 2015), a California appellate court reversed a trial court decision, which had dismissed a felony complaint against Anthony Murillo alleging two counts of threatening a crime victim.

The Second Appellate District held that a reasonable listener could have understood a rap song as threatening two rape victims. The Court cited People v. Lowery in finding that the trier of fact must determine whether the defendant’s rap lyrics were a “true threat” outside the protection of the First Amendment. It also concluded that Elonis v. United States, a 2015 Supreme Court case interpreting the mens rea standard for threats under a federal statute, did not apply to the state law at issue.

Technology & Marketing Law Blog provides a comparison of Murillo to Harrell v. State, another recent case discussing the issue of threatening speech in Georgia.

Under Section 140 of the California Penal Code, it is a crime to threaten a crime victim with violence because the victim has assisted law enforcement. The defendant is a close friend of Shane Villalpando, who was convicted of three counts of unlawful sex with a minor. In reaction to Villalpando’s incarceration, the defendant published a song titled “Moment for Life Remix” on his Facebook account, Reverbnation and Twitter, all of which are publicly accessible. The song referred to the two victims of Villalpando’s crime by their first and last names, and described the girls as “hoe[s],” among other profanities.

The Court of Appeal held that the song could be understood to convey a serious expression of intent to commit an act of unlawful violence against the girls. In holding as it did, the court reasoned that the term “willfully” in “[Section] 140 implies simply “a purpose or willingness to commit the act,” and thus “requires a general intent and not a specific intent” to threaten.

In reviewing the facts, the court noted that the lyrics included the phrases, “you’re gonna end up dead,” and “I’m coming for your head.” Murillo also revealed the names of the rape victims and repeatedly used the phrase “fuck snitches.” One of the victims was frightened when she listened to the song’s lyrics. Her mother was sufficiently concerned to contact law enforcement. The court concluded that, for purposes of the preliminary examination, this evidence provides sufficient cause to believe Murillo is guilty of the charged offenses.

Worrying that artists will risk prosecution under the Murillo decision for artistic speech intended to be threatening, the ACLU of Southern California and the Electronic Frontier Foundation filed an amici letter in support of the Petition for Review by California Supreme Court. The letter contests the standard of mens rea the Court of Appeal adopted. By “[articulating] a mens rea for threatening speech that is in tension with general criminal law principles and First Amendment jurisprudence,” the letter argued, the decision will lead to a result where “individuals harboring merely a general intent to communicate may be tried and convicted of a felony.”

Keke Wu is a 1L at the Harvard Law School.