[Eugene Volokh] Is Threatening to Kill Jews Generally—with No Person or Institution Specifically Named—Punishable?

From People v. Farca, decided last week by California Court of Appeal Justice Tracie Brown, joined by Contra Costa County Judge Danielle Douglas:

Around June 2019, Farca had two accounts on Steam, an online gaming website and social platform…. The name of one of Farca's accounts was "Adolf Hitler (((6 MILLION)))." The description of the account said "Brenton Tarrant is a hero!!" and had an icon of the flag of New Zealand. Brenton Tarrant shot and killed about 50 Muslim people at mosques in Christchurch, New Zealand. The description of the Steam account also stated, "I have a fully semi automatic assault weapon AR15 with multiple high capacity magazines. Wanna see a mass shooting with a body count of over 30 subhumans?" The Nazi party in World War II referred to Jews as subhumans.

Using that account, Farca sent a message to three other users, saying, "I currently own an AR15 semi auto rifle but I can buy/make the auto sear and get the M16 parts kit. What do you think of me doing what John Earnest tried to do, but with a Nazi uniform, an unregistered and illegally converted 'machine gun' and actually livestreaming it with Nazi music? I would get a body count of like 30 kikes and then like 5 police officers because I would also decide to fight to the death 1) you don't surrender to the ZOG 2) ever watch US prison documentaries? Also I would not spam full auto, I would just use it for clusterf,ucks [sic] of kikes. Generally you want to be on semi auto only so you don't waste ammo plus depending on the target richness and need for suppression eventually I may go low on ammo so I would need to resupply from the dead officers since it's 5.56." Farca also posted, "I just would need a better target than f,ucking [sic] some random synagogue with kikes that aren't really a threat. Preferibly [sic] with some high value targets, even though they would have their own security." John Earnest shot and killed one person at a synagogue in Poway in early 2019. "Kike" is a derogatory term for a Jewish person.

Acting on a tip from the FBI, Detective Gregory Mahan of the Concord police found Farca's Steam posts. The FBI tip identified the Steam user as Farca. Mahan conducted a background check and discovered that Farca lived in Concord and had purchased a "stripped lower" for an AR-15 a few months earlier. A stripped lower is the most basic part of a firearm on which a gun is built by adding other components….

In [a search of] Farca's bedroom, police found, among other things, an AR-15-style semiautomatic rifle with a pistol grip, detachable magazine, telescoping stock, and two types of scopes…. Also in Farca's home were a Japanese sword, a military-style combat fixed-blade knife, and a military-style camouflage uniform. Farca had numerous history books about World War II and Nazi Germany, as well as two pro-Jewish books. Laptops and a cell phone in Farca's room had a large amount of anti-Semitic and pro-Nazi material, including a copy of Mein Kampf, as well as a video of the Christchurch shooting. The laptops were linked to the Steam accounts. The Internet history on Farca's laptops and phone included searches for "Concord police scanner," "First Lutheran Church in Concord," "sf jewish library," and "sf jewish museum." The devices had saved copies of Steam chats and Youtube comments in which Farca's account mentioned suicide by cop, being willing to slaughter law enforcement officers, and not being willing to go to prison.

Deborah K., the executive director of a synagogue in Lafayette, learned through a media article and law enforcement bulletin that Farca had been arrested less than 10 miles from the synagogue and had said online that he wanted to attack Jewish people and kill police. She also learned that the police seized an assault weapon during the search. Deborah K. felt concerned or threatened because of her knowledge of the attacks earlier that year by Tarrant and Earnest and the fact that Farca was arrested nearby with the means to carry out an attack. She contacted the local police, and the synagogue hired armed, full-time private security. Deborah K. knew that Farca had not posted anything directly identifying her synagogue or its rabbi or congregants….

The court upheld Farca's weapons-related convictions, as well as a conviction for threatening a police officer (for more on the facts of that, see the opinion), but it vacated his conviction for "interfering with another person's exercise of civil rights by threat of force … through his online posts":

Section 422.6, subdivision (a) states, "No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim [including gender, nationality, race or ethnicity, and religion]." … "[N]o person may be convicted of violating subdivision (a) based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat." …

Our Supreme Court in In re M.S. (Cal. 1995), rejected an argument that section 422.6 was not sufficiently specific as to the persons threatened and therefore unconstitutionally vague. The court interpreted the phrase "'group of persons'" … "to mean a specific group of individuals, not abstract groups or protected classes." The Supreme Court explained, "Reading the statute as a whole, we are persuaded the Legislature meant to proscribe 'true threats' as traditionally understood, not what might be termed 'group libel.' So read, section 422.6 is neither overbroad nor vague in this respect." Consistent with this decision, the pattern jury instruction for section 422.6, which the trial court delivered, requires the prosecution to prove that a defendant threatened physical violence against "a specific group of people." …

Farca's Steam posts contained vile anti-Semitic rhetoric and statements about using his assault weapon to kill like 30 kikes" or "over 30 subhumans." However, Farca did not threaten violence against any specific individuals or group of Jewish people, so his statements do not satisfy the "group of persons" victim element of the offense as our Supreme Court interpreted it in In re M.S…. Farca did not identify any individual Jewish worshippers, any specific synagogue, or even a town, county, or state whose synagogue or synagogues he intended to target. Nor did he explain what would make any Jewish person a "high value" target…. If the undefined category of "high value" Jews in synagogues were sufficient to satisfy {the "specific person or group of persons" requirement} …, the requirement would be meaningless, as would the Supreme Court's distinction between specific groups of individuals and abstract groups or protected classes….

The People [also] cannot make Farca's words more specific merely by presenting testimony from someone who falls within the protected classes of Jews or worshippers in synagogues. Farca's speech must have "itself threatened violence against a specific person or group of persons." Deborah K. was not specifically threatened in Farca's posts, nor was the synagogue where she worships. Indeed, Deborah K. learned of Farca's posts from a police bulletin and media article only after police arrested him and seized his rifle. It would be anomalous to allow law enforcement to define a specific target for those posts by publicizing them in a certain community, after any danger Farca posed had already been neutralized through his arrest and the confiscation of his weapon….

Nor is there any indication in the record that Deborah K.'s synagogue was noteworthy in any way, or that Farca would consider the people who attended services there to be "high value targets." This is significant because Farca's Steam post said explicitly that he "would need a better target than f,ucking [sic] some random synagogue with kikes that aren't really a threat."

Justice Jeremy Goldman agreed with the majority opinion generally, but took a different view as to the online threats issue:

While I do not find unreasonable the majority's conclusion that Farca's posts were insufficiently specific when all the surrounding circumstances are taken into account, I would not adopt as a rule that a threat of violence against a synagogue or other house of worship necessarily lies outside the statute's reach in the absence of additional information about the location of the speaker or the threatened attack….

In re M.S. … construed the statute to reach only "'true threats,'" which do not receive First Amendment protection. While the court did not say that section 422.6 … requires no more particularity than necessary to bring a threatening statement within that category, its discussion at least suggests that First Amendment law may be relevant….

The United States Supreme Court has written that true threats "encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals." But the Court did not discuss what the phrase "particular individual or group of individuals" means, and the Virginia statute at issue itself prohibited cross burning "with 'an intent to intimidate a person or group of persons.'" The case involved members of the Ku Klux Klan burning a cross on private property with the owner's permission; it was apparently sufficient that the cross was visible from a nearby public road and from neighboring houses.

In its most recent formulation, the Court defined true threats simply as "'serious expression[s]' conveying that a speaker means to 'commit an act of unlawful violence.'" As In re M.S. pointed out, threats of violence differ from other forms of unprotected speech "because they coerce by unlawful conduct, rather than persuade by expression, and thus play no part in the 'marketplace of ideas.'" There is no claim here that Farca's posts were "'political hyperbole'" or expressions of "jest or frustration" that a reasonable person would not take seriously.

A threat's failure to identify a target precisely does not suggest that it is unlikely to be carried out—or that the victims will not be specific individuals. For someone who seeks to "injure, intimidate, interfere with, oppress, or threaten" members of a religious group "in the free exercise or enjoyment" of their religion, a failure to identify the location of the house of worship could be an intentional effort to spread fear more widely. A threat does not necessarily become innocuous or unimpactful simply because its reach is broad enough that the people described as its targets may find some solace in statistical probabilities. However they might estimate the odds that the person making the threat would ultimately choose their own congregation for the attack, they could reasonably understand that the threat was directed at them.

For that reason, I do not think a person who takes to social media to threaten an attack against a house of worship necessarily falls outside the scope of section 422.6 … simply by failing to indicate a geographic location. Suppose, for example, that Farca had announced on a widely visited website that he would seek to kill 30 Jews at a synagogue and would choose its location at random. Such a threat, with its express effort to invoke the terror of unpredictability, seems to lie close to the core of what the statute is intended to prevent. Moreover, contextual clues could effectively narrow a threat geographically regardless of what the person says explicitly.

Here, however, there does not appear to be anything purposeful about the vagueness in Farca's posts. The Attorney General has not argued that Farca's reference to "high value targets" supplied meaningful additional specificity, nor that there was any context for the threats beyond what Farca wrote in his posts. Given those considerations, I find the majority opinion to be a reasonable resolution of a close question, but for the reasons discussed above, I would expressly leave open the possibility that, under even slightly different circumstances, a threat could be sufficiently specific … notwithstanding the absence of geographical particularity.

Instead, Judge Goldman would have reversed Farca's "interference with civil rights by threat" conviction on different grounds, "namely, that there is insufficient evidence that Farca had 'a specific intent to interfere with a person's right protected under state or federal law'"—a requirement of the California statute—given that Farca was just corresponding with a few people online. (First Amendment law allows states to punish threats when the speaker is reckless about the possibility that their targets will feel threatened, without a showing of a specific purpose to threaten; but California law is more speaker-protective here.)

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