Threats to perform an illegal act to prevent an executive officer from performing his duty, even where unaccompanied by physical violence, are not protected by the First Amendment. When firefighters came to appellants property to extinguish a fire, appellant argued with the captain and cursed firefighters coming to his aid. He threw a fire hose out of his backyard, clenched his fists, paced back and forth, and then lifted his shirt to reveal his gang tattoos. When back-up law enforcement arrived, he retreated to his house. He was convicted of seven counts of Penal Code section 69, which prohibits threats and violent conduct when either activity constitutes an attempt to deter an executive officer from performing his duty. The court found that appellant’s threats were not protected by the First Amendment. Where speech is a willful threat to perform illegal acts, as opposed to an exchange of ideas, political hyperbole, etc., as it falls outside the First Amendment. Although appellant’s words alone might not constitute a threat of unlawful violence, his conduct gave context to the threatening speech which was intended to deter the firefighters and deputies from their duty, i.e., communication of a serious expression of intent to commit an act of unlawful violence.
In this case, it was not necessary for the court to sua sponte instruct the jury that the threat had to be a serious expression of intention to inflict bodily harm as such an instruction could have confused the jury by suggesting a requirement that the victim in fact believed that the threat would be carried out, as such a requirement does not exist.