State v. Smith
Decision Date | 06 November 1998 |
Docket Number | No. 21316-8-II,21316-8-II |
Citation | 93 Wn.App. 45,966 P.2d 411 |
Court | Washington Court of Appeals |
Parties | STATE of Washington, Respondent, v. Richard Curtis SMITH, Appellant. |
Ian A. Northrip, Cowlitz Co. Pros. Atty. Office, Kelso, for Respondent.
Richard Curtis Smith appeals his conviction of threatening to bomb a government building (RCW 9.61.160), arguing that the trial court erred in denying his motion to dismiss on First Amendment grounds because the statute is overbroad. We affirm.
Smith is an emotionally disturbed 31-year-old man. He delivers newspapers for his father and draws disability payments. On May 10, 1996, Child Protective Services (CPS) took Smith's then five-year-old daughter from his care. Smith was upset about the removal, which he characterized as "kidnapping." He felt that he would not get a fair hearing from CPS. At a shelter care hearing, he was angry and disruptive. A security guard restrained him several times.
Smith was a casual acquaintance of Albert Strickland, a Wal-Mart employee. A few weeks after the hearing, Smith's father had a conversation with Strickland while delivering newspapers to vending machines at the WalMart. Smith's father told Strickland about Smith's problems with his daughter.
About a week later, Smith was delivering newspapers to Strickland reported the conversation to the Longview Police. The police searched Smith's house but found no explosives or related devices. The police later arrested Smith and charged him with threatening to bomb a government building. He appeals from a jury conviction.
the Wal-Mart for his father. Strickland recognized Smith and initiated a conversation. Smith began talking about his troubles with CPS and said he was upset and angry. Strickland testified that Smith told him that if he did not get his daughter back at the next hearing, he would blow up the CPS building. Using gestures, Smith demonstrated how he would pack the bomb, describing in detail the materials he would need to make it.
Smith contends that RCW 9.61.160 is unconstitutionally overbroad. A party challenging the constitutionality of a statute must prove unconstitutionality beyond a reasonable doubt. State v. Edwards, 84 Wash.App. 5, 16, 924 P.2d 397 (1996), review denied, 131 Wash.2d 1016, 936 P.2d 416 (1997). A statute is overbroad if it sweeps constitutionally protected free speech activities within its prohibitions. Edwards, 84 Wash.App. at 16, 924 P.2d 397.
In determining whether a statute is overbroad, the court must engage in three analyses: (1) whether the challenged statute proscribes protected speech; (2) if so, whether it proscribes a real and substantial amount of protected speech; and (3) if so, whether the statute can be saved by a sufficient limiting construction or because the statute's regulation is permissible under the First Amendment. State v. Stephenson, 89 Wash.App. 794, 800, 950 P.2d 38 (1998); Edwards, 84 Wash.App. at 17, 924 P.2d 397.
RCW 9.61.160 provides: "It shall be unlawful for any person to threaten to bomb ... any governmental property, or any other building...." RCW 9.61.160. This court recently rejected an overbreadth challenge to this statute in State v. Edwards, 1 holding that RCW 9.61.160 prohibits some, but not a substantial amount of, constitutionally protected speech and therefore is not overbroad.
Smith asserts that the Edwards decision added a "fighting words" element to the statute. "Fighting words" have a direct tendency to cause acts of violence by the person to whom they are addressed. Camby, 104 Wash.2d at 52, 701 P.2d 499. They are not constitutionally protected speech. Camby, 104 Wash.2d at 52, 701 P.2d 499.
Smith further asserts that RCW 9.61.160 should be read to proscribe only those threats that are "fighting words" and tend to incite an immediate breach of the peace, a high standard to meet. City of Seattle v. Huff, 111 Wash.2d 923, 925, 767 P.2d 572 (1989). To be considered "fighting words," speech must be: (1) directed at a particular person or group; (2) inherently likely to provoke a violent reaction; and (3) considered fighting words in the context in which the speech was made. City of Seattle v. Camby, 104 Wash.2d 49, 53, 701 P.2d 499 (1985). Using this analysis, Smith reasons that his threat is protected speech because it was not directed to incite Strickland (the addressee) to violence. 2
Both "fighting words" and "true threats" are non-protected speech. See Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 22 L.Ed.2d 664 (1969); Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72, 62 S.Ct. 766, 86 L.Ed. 1031 (1942); United States v. Orozco-Santillan, 903 F.2d 1262, 1265-66 (9th Cir.1990); State v. Knowles, 91 Wash.App. 367, 373, 957 P.2d 797 (1998). "True threats" are statements made under such circumstances that a reasonable person would interpret the statement as a serious expression of intention to inflict bodily harm. Knowles, 91 Wash.App. at 373, 957 P.2d 797; see United States v. Gilbert, 884 F.2d 454, 457 (9th Cir.1989) (, )cert. denied, 493 U.S. 1082, 110 S.Ct. 1140, 107 L.Ed.2d 1044 (1990).
The Edwards court specifically held that RCW 9.61.160 does not require proof of a true threat. 3 Edwards, 84 Wash.App. at 12, 924 P.2d 397. Rather, the court indicated that the statute prohibited fighting words. 4 In its analysis, the court noted that RCW 9.61.160 proscribes some protected speech, stating that threats are protected by the First Amendment "unless they are likely to cause an immediate breach of the peace." Edwards, 84 Wash.App. at 17, 924 P.2d 397. But the court concluded, without elaboration, that the majority of threats proscribed under RCW 9.61.160 are likely to cause an immediate breach of the peace. Edwards, 84 Wash.App. at 19, 924 P.2d 397.
The conclusion reached in Edwards is correct, but further analysis is appropriate. A threat conveys an intent to injure others; it does not necessarily incite others to action. By using "fighting words" as the constitutional basis for RCW 9.16.160, the Edwards court left unanswered the questions of who must be incited and to what action in order for a threat to be non-protected, and the court fell short of specifically adopting a "fighting words" interpretation for RCW 9.16.160. Edwards, 84 Wash.App. at 20, 924 P.2d 397.
Other Washington decisions have employed a more complete analysis to uphold the same statute on the ground that threats themselves are non-protected speech. See State v. Young, 83 Wash.2d 937, 941-42, 523 P.2d 934 (1974) ( ); State v. Brown, 50 Wash.App. 405, 411, 748 P.2d 276 (1988) ( ); see also Knowles, 91 Wash.App. at 373-74, 957 P.2d 797 ( ).
Thus, as held in State v. Young, 5 State v. Brown, 6 and State v. Edwards, 7 RCW 9.61.160 does not proscribe a substantial amount of constitutionally protected speech. It is therefore not unconstitutionally overbroad.
Affirmed.
2 Smith appears to argue that the jury should have been instructed not to convict him unless it found that he used "fighting words." Smith, however, has not assigned error to the jury instructions.
3 The court reached this conclusion because it defined "threat" as used in RCW 9.61.160 as including a threat to injure property. Edwards, 84 Wash.App. at 12, 924 P.2d 397. This type of threat may be constitutionally protected. See Stephenson, 89 Wash.App. at 801-02, 950 P.2d 38 ( ); Knowles, 91 Wash.App. at 374, 957 P.2d 797 ( ). RCW 9.61.160, however, is clearly concerned...
To continue reading
Request your trial-
State v. Johnston
...conclusion that RCW 9.61.160 is not overbroad, State v. Edwards, 84 Wash.App. 5, 16-17, 924 P.2d 397 (1996) and State v. Smith, 93 Wash.App. 45, 47-48, 966 P.2d 411 (1998). Initially, as Johnston correctly points out, the analysis in Edwards is flawed because it conflates two categories of ......
-
City of Bellevue v. O'Connell
... ... ordinance under federal constitutional law; he does not raise ... arguments under state law ... II ... Bellevue City Code Provisions ... O'Connell ... was charged with violating BCC 10A.36.010, ... Dyson, 74 Wn ... App. 237, 242, 872 P.2d 1115, review denied, 125 ... Wn.2d 1005 (1994)) ... [11] State v. Smith, 93 Wn. App ... 45, 47, 966 P.2d 411 (1998) ... [12] State v. Kilburn, 151 Wn.2d ... 36, 43, 84 P.3d 1215 (2004) (citing Bose ... ...
-
City of Bellevue v. O'Connell, No. 58197-0-I (Wash. App. 8/6/2007)
... ... beyond a reasonable doubt."5 O'Connell challenges the Bellevue ordinance under federal constitutional law; he does not raise arguments under state law ... II. Bellevue City Code Provisions ... O'Connell was charged with violating BCC 10A.36.010, which, at the time O'Connell was ... Dyson, 74 Wn. App. 237, 242, 872 P.2d 1115, review denied, 125 Wn.2d 1005 (1994)) ... 11. State v. Smith, 93 Wn. App. 45, 47, 966 P.2d 411 (1998) ... 12. State v. Kilburn, 151 Wn.2d 36, 43, 84 P.3d 1215 (2004) (citing Bose Corp. v. Consumers Union of ... ...
-
State v. Johnston, No. 49709-0-I (WA 10/18/2004)
... ... reach a substantial amount of protected speech. State v. Edwards, 84 Wn. App. 5, 16-17, 924 P.2d 397 (1996); State v. Smith, 93 Wn. App. 45, 47-48, 966 P.2d 411 (1998). We agree with Division Two and conclude that RCW 9.61.160 fails to sweep within its grasp a substantial amount of protected speech and is therefore not overbroad under the First Amendment of the United States Constitution ... II. Sufficiency ... ...