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Name: In re J.M.
Case #: F077508
Court: CA Court of Appeal
District 5 DCA
Opinion Date: 06/24/2019

Minor’s verbal act of making a false bomb report was not protected by the First Amendment to the U.S. Constitution. J.M., a minor, was speaking with a friend at school, A.B., when he told her he was going to “blow up the school, shoot it,” and that he knew how to get an Army grenade. A.B. thought he was joking, but was not sure so she told a teacher. J.M. was adjudged a ward of the court (Welf. & Inst. Code, § 602), following a finding that he made a false report that a bomb or other explosive device would be placed in his school (Pen. Code, § 148.1, subd. (c)). On appeal, J.M. argued his words were protected by the First Amendment and not subject to criminal sanctions. Held: Jurisdictional and dispositional orders vacated on other grounds (see unpublished portion of opinion). The First Amendment permits a State to punish true threats, and words that by their very utterance inflict injury or tend to incite an immediate breach of the peace. Section 148.1, subdivision (c), criminalizes the malicious communication of knowingly false information about placement of a bomb or other explosive. J.M. argued that in order to place an utterance outside of First Amendment protection, there must be a specific intent to communicate a threat or false information under circumstances where the communication is reasonably likely to cause disruption or sustained fear of harm. After analyzing relevant case law, the court here disagreed. Falsely uttered words have the inherent potential to cause fear, alarm, or disruption. The fact that J.M. may have been joking or expressing frustration does not mean his words are constitutionally protected. Individuals should not have to guess whether the speaker is serious. Further, the use of the word “malicious” in section 148.1, subdivision (c) reflects a legislative determination that false reports of bomb placement spoken to anyone are inherently matters to be taken seriously. J.M.’s words were not constitutionally protected.

The portion of section 148.1, subdivision (c) defendant was found to have violated—the false report of a future placement of a bomb or other explosive—is not unconstitutionally overbroad or facially invalid. A statute is facially overbroad if it “may cause others not before the court to refrain from constitutionally protected speech or expression.” To succeed, a constitutional challenge based on asserted overbreadth “must demonstrate the statute inhibits a substantial amount of protected speech.” Here, J.M. failed to “demonstrate the statute inhibits a substantial amount of protected speech.” Knowingly false statements about the placement of a bomb are not protected speech. Nor is there any constitutional requirement that statements about “future bomb placement” include specific dates and locations, as J.M. suggested. J.M.’s statement here —”I will blow up the school one day and I know where to find an army grenade”—is no less a deliberately false statement of fact than “I am going to blow up the school with a grenade tomorrow at noon.” Because virtually all of the speech proscribed by section 148.1, subdivision (c) is not constitutionally protected, the overbreadth doctrine may not be properly invoked to preclude recognition of that crime.

The full opinion is available on the court’s website here: