justices raising the bar for establishing when a statement is a “true threat” not protected by the 1st Amendment.

Holding: To establish that a statement is a “true threat” unprotected by the First Amendment, the state must prove that the defendant had some subjective understanding of the statements’ threatening nature, based on a showing no more demanding than recklessness.

Judgment: Vacated and remanded, 7-2, in an opinion by Justice Kagan on June 27, 2023. Justice Sotomayor filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined as to Parts I, II, III-A, and III-B. Justice Thomas filed a dissenting opinion. Justice Barrett filed a dissenting opinion, in which Justice Thomas joined.

Washington — The Supreme Court on Tuesday sided with a Colorado man who was convicted of a crime after sending numerous threatening messages to a woman on Facebook, with the justices raising the bar for establishing when a statement is a “true threat” not protected by the First Amendment.

The high court divided 7-2 in the case of Counterman v. Colorado, with Justices Clarence Thomas and Amy Coney Barrett in dissent. The court wiped away a Colorado Court of Appeals’ ruling that upheld the conviction of Billy Counterman and sent the case back for further proceedings consistent with its opinion.

Writing for the majority, Justice Elena Kagan said prosecutors must demonstrate that a defendant who made a threat acted recklessly — that is, with the knowledge that others could regard their statement as threatening violence — to establish that the speech is a “true threat” and thus no longer covered by the First Amendment.

“The question presented is whether the First Amendment still requires proof that the defendant had some substantive understanding of the threatening nature of his statements,” she wrote. “We hold that it does, but that a mental state of recklessness is sufficient. The state must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence.”

Counterman was prosecuted under a standard requiring the state to show only that a “reasonable person” would understand the messages as threats. The majority found that violated the First Amendment.

“[The state] did not have to show any awareness on his part that the statements could be understood that way. For the reasons stated, that is a violation of the First Amendment,” Kagan wrote.

In a dissenting opinion written by Barrett, which Thomas joined, the justice said the majority’s decision “unjustifiably grants true threat preferential treatment.”

“A delusional speaker may lack awareness of the threatening nature of her speech; a devious speaker may strategically disclaim such awareness; and a lucky speaker may leave behind no evidence of mental state for the government to use against her,” Barrett wrote.

Counterman, she concluded, “communicated true threats” and caused the recipient of the messages, a singer-songwriter named Coles Whalen, to fear for her life.

“Nonetheless, the court concludes that Counterman can prevail on a First Amendment defense,” Barrett said. “Nothing in the Constitution compels this result.”

The case arose from hundreds of Facebook messages Counterman sent to Whalen between 2014 and 2016. Some of the messages were innocuous, while others were more troubling. Whalen tried to block Counterman, but he created multiple accounts to continue sending them. 

In one, Counterman wrote, “F**k off permanently,” while in another, he wrote, “I’ve tapped phone lines before. What do you fear?” According to court filings, a third read, “You’re not being good for human relations. Die. Don’t need you.”

Whalen believed Counterman’s messages were threatening her life and she was worried she would get hurt. She had issues sleeping, suffered from anxiety, stopped walking alone and even turned down performances out of fear that Counterman was following her.

She eventually turned to the authorities and obtained a protective order, after which Colorado law enforcement arrested Counterman and charged him with stalking under a Colorado law that prohibits “repeatedly making any form of communication with another person” in a manner that would “cause a reasonable person to suffer serious emotional distress and does cause that person … to suffer serious emotional distress.”

Conviction under the law requires proof that the speaker “knowingly” made repeated communications, and does not require the person to be aware that the acts would cause “a reasonable person to suffer serious emotional distress.”

Before his trial, Counterman sought to dismiss the charge, arguing that his messages were not “true threats” and therefore protected speech under the First Amendment. But the state trial court found that his messages reached the level of a true threat, and the First Amendment did not preclude his prosecution. A jury then found Counterman guilty, and he was sentenced to four-and-a-half years in prison.

Counterman appealed, arguing the trial court erred when it applied an objective standard for determining whether his messages constituted true threats. He said the court should instead adopt a “subjective intent” requirement, which required the state to show he was aware of the threatening nature of his communications.

But the Colorado Court of Appeals upheld his conviction and agreed with the trial court’s finding that Counterman’s Facebook messages were “true threats” and not protected by the First Amendment. The state supreme court declined to review the case.

The ACLU, which filed a brief in support of Counterman, cheered the decision, saying in a statement that the high court affirmed that “inadvertently threatening speech cannot be criminalized.”

“In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received,” said Brian Hauss, senior staff attorney with the organization’s Speech, Privacy, & Technology Project. “The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

ACLU Commends Supreme Court Decision to Protect Free Speech in Case Defining True Threats

In Counterman v. Colorado, the court ruled that the First Amendment requires the government to show recklessness in true threats prosecutions.

WASHINGTON – The Supreme Court ruled today in Counterman v. Colorado that in true threats cases the First Amendment requires the government to prove that the defendant acted with a culpable mental state, and not merely that his words were objectively threatening.

Colorado law allowed individuals to be convicted if a reasonable person would perceive their words as threatening, regardless of the speaker’s intent. Today’s decision rules that the First Amendment requires the government to show at a minimum that the defendant recklessly disregarded a substantial risk that his words could be perceived as threatening. The court holds that a recklessness standard strikes the right balance between free expression and safety, “offering ‘enough “breathing space” for protected speech,’ without sacrificing too many of the benefits of enforcing laws against true threats.”

“We’re glad the Supreme Court affirmed today that inadvertently threatening speech cannot be criminalized,” said Brian Hauss, senior staff attorney with the American Civil Liberties Union’s Speech, Privacy, & Technology Project. “In a world rife with misunderstandings and miscommunications, people would be chilled from speaking altogether if they could be jailed for failing to predict how their words would be received. The First Amendment provides essential breathing room for public debate by requiring the government to demonstrate that the defendant acted intentionally or recklessly.”

This case involved a series of disturbing messages that the petitioner, Billy Raymond Counterman, sent to C.W., a professional musician in Colorado, over a two-year period. Counterman was prosecuted and convicted under Colorado’s anti-stalking statute. On appeal, Counterman — who has been diagnosed with a mental illness — argued that his conviction was unconstitutional because the jury was not required to find that he intended to threaten C.W.

The ACLU and its partners filed an amicus brief in the case arguing that a great deal of speech — including political speech, satire, and artistic speech — contains overt or implicit references to violence that could be interpreted as threatening. Without requiring some element of intentional wrongdoing, the ACLU argued, there exists a significant risk that people will be convicted of serious felonies because they failed to adequately anticipate how their words would be perceived.

Counterman v. Colorado is a part of the ACLU’s Joan and Irwin Jacobs Supreme Court Docket. The amicus brief was filed with the ACLU of Colorado, the Abrams Institute for Freedom of Expression, the National Association of Criminal Defense Lawyers, and the National Coalition Against Censorship.

Supreme Court Decides Counterman v. Colorado

On June 27, 2023, the U.S. Supreme Court decided Counterman v. Colorado, No. 22-138, holding that a criminal prosecution based on a true threat of violence requires proof that the defendant subjectively understood the threatening character of the statement such that making the statement was at least reckless.

Between 2014 and 2016, Billy Counterman persistently sent hundreds of unwelcome messages through Facebook to a local musician, creating new accounts to circumvent her attempts to block them. The musician interpreted many of the messages as indicators that Counterman was surveilling her and intended to harm her. Colorado state prosecutors criminally charged Counterman for his behavior, and the Facebook messages themselves were the only evidence presented at trial. Counterman claimed his messages fell within the protections of the First Amendment because they could not be “true threats” if he did not have a subjective understanding that the messages were threatening. The Colorado trial and appellate courts rejected his argument and ruled that “true threats” were subject only to an objective reasonableness standard.

The Supreme Court reversed. While the Court agreed that “true threats of violence” are not protected speech under the First Amendment, the Court held that a court must apply a subjective test to determine if a statement is in fact a true threat of violence. The Court held that this subjective standard is required to avoid a chilling effect on otherwise protected speech. The Court noted that the “ordinary citizen’s predictable tendency” is to steer very wide of speech that may be considered unlawful. The Court held that a subjective standard was necessary to balance the public interest in avoiding unnecessary chilling of lawful speech and the ability of prosecutors to criminally charge defendants for unlawful speech.

The Court then analyzed what level of subjective knowledge is sufficient to accomplish that balance. The Court compared the law governing other non-protected classes of speech, including defamation, and determined that a reckless state of mind is sufficient—i.e., a defendant who consciously disregards a substantial risk that statements would be understood as a true threat may be prosecuted. The Court also concluded that any mens rea requirement higher than recklessness—like purpose or knowledge—would make prosecution too difficult, and “with diminishing returns for protected expression.” To balance the risk of chilling public speech and the need to be able to prosecute true threats of violence, the Court ruled that prosecutors must prove that defendants recklessly made threatening statements.

Justice Kagan authored the opinion of the Court. Justice Sotomayor authored a concurrence in which Justice Gorsuch joined in part. Justice Thomas authored a dissent. Justice Barrett authored a dissent in which Justice Thomas joined.

This Report summarizes an opinion issued on January 23 (Part I); and cases granted review on December 27, 2022, and January 13, 2023 (Part II).

Opinion: Counterman v. Colorado, 22-138

Counterman v. Colorado, 22-138. The Court will clarify the standard for determining whether a statement is a true threat unprotected by the First Amendment. Most federal courts of appeals apply an objective test that asks whether a reasonable person would interpret the statement as a threat of violence. By contrast, the Ninth and Tenth Circuits employ a subjective test that asks whether the speaker intended the recipient to feel threatened. State courts are similarly divided, with some applying a hybrid test that considers both the speaker’s subjective intent and whether a reasonable person would view the statement as a threat. This is the second time that the Court has agreed to address this split. The issue was presented in Elonis v. United States, 575 U.S. 723 (2015), but the Court ultimately resolved that case on a different basis.

The issue here arises in the context of a criminal prosecution for stalking. Over the course of two years, petitioner Billy Raymond Counterman directly messaged a local musician on Facebook without invitation or response. Some of the messages suggested that he was physically surveilling her, while others told her to “Die” and “Fuck off permanently.” Counterman’s messages caused the victim to fear for her safety, so she told her family and police. Relying on 17 messages, Colorado charged him with stalking. Under Colorado law, prosecutors did not need to prove that Counterman intended his statements to be threatening or that he was aware that they could be interpreted that way. Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not true threats and thus were protected speech. The trial court denied the motion and a jury found Counterman guilty of stalking. The Colorado Court of Appeals affirmed Counterman’s conviction. 497 P.3d 1039. In holding that Counterman’s statements were true threats subject to criminal prosecution, the Colorado Court of Appeals applied the objective test that asks whether a reasonable person would view the statements as threatening. The court of appeals rejected Counterman’s argument that a speaker’s subjective intent to threaten is necessary for a statement to constitute a true threat, noting that the Colorado Supreme Court recently rejected that rule absent further guidance from the U.S. Supreme Court. The Colorado Supreme Court later denied Counterman’s petition for review.

Relying on history, tradition, and U.S. Supreme Court precedent, Counterman argues in his petition that “heightened scienter is necessary to true threats.” He notes that, generally, consciousness of wrongdoing is required for a criminal conviction. A scienter requirement is especially important for a statute that regulates speech, Counterman contends, because convicting “a person for negligently misjudging how others would construe the speaker’s words would erode the breathing space that safeguards the free exchange of ideas.” Counterman submits that a purely objective test for true threats conflicts with the Court’s true threats jurisprudence, including Virginia v. Black, 538 U.S. 343 (2003). There, the Court stated 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.” (Emphasis added.) Counterman relies on this language to argue that the Court has already imposed a heightened scienter requirement for true threats. He also points out that in incitement cases, the Court has required proof that the speaker intended to produce imminent disorder. See Hess v. Indiana, 414 U.S. 105, 109 (1973) (per curiam).

Colorado argues that its objective test for true threats is consistent with the Court’s free speech jurisprudence. It compares its “context-driven objective standard” to the Court’s analysis in Watts v. United States, 394 U.S. 705 (1969). There, in holding that the speaker’s comments at a rally were not true threats subject to criminal prosecution, the Court focused on the plain language of the statements, the context in which they were made, and the listeners’ reaction. Colorado’s test similarly examines “the contested expression’s context, including the listeners’ reaction.” In Colorado’s view, the Court in Black did not subsequently adopt a subjective-intent requirement for true threats. It reads Black as simply identifying one circumstance where a speaker makes a true threat, namely when he communicates with the intent to threaten the recipient. Colorado maintains that Black did not “state that true threats were limited to such statements.” Colorado also contends that an objective test is especially important to protect victims of stalking because stalkers may be delusional, thereby making it difficult for prosecutors to prove a subjective intent to threaten. And because its objective test considers the context in which the statements were made, Colorado submits that speakers will be protected from unfair punishment.

US Supreme Court makes decision on Counterman v. Colorado

WASHINGTON, D.C., USA — The Supreme Court ruled Tuesday to make it more difficult to convict a person of making a violent threat, including against the president or other elected officials.

The Biden administration had warned that the internet and social media have expanded the number and kinds of threats in recent years, including online harassment, intimidation and stalking. And they warned the case could affect the ability to prosecute threats against public officials, which have increased in recent years.

The high court was ruling in a case that involves a man who was sentenced to more than four years in prison in Colorado for sending threatening Facebook messages. The man’s lawyers had argued that he suffers from mental illness and never intended his messages to be threatening.

The question for the court was whether prosecutors must show that a person being prosecuted for making a threat knew their behavior was threatening or whether prosecutors just have to prove that a reasonable person would see it as threatening.

Justice Elena Kagan wrote for a majority of the court that prosecutors have to show that “the defendant had some subjective understanding of the threatening nature of his statements.”

“The State must show that the defendant consciously disregarded a substantial risk that his communications would be viewed as threatening violence,” she said.

Seven justices agreed with the outcome. Two conservative justices, Clarence Thomas and Amy Coney Barrett, dissented.

The Biden administration had been among those arguing for the lower “reasonable person” standard.

“Threats of violence against public officials in particular have proliferated in recent years, including threats against Members of Congress, judges, local officials, and election workers,” the Biden administration had noted, saying the case could affect prosecutions in those cases.

Speech of all kinds is generally protected by the free speech clause in the Constitution’s First Amendment, but so-called “true threats” are an exception.

The specific case before the justices involved Billy Counterman. He contacted a musician through Facebook in 2010 to ask her whether she would perform in a benefit concert he said he was organizing. The woman, Coles Whalen, responded but nothing ever came of it.

Whalen forgot about the exchange, but four years later, Counterman began sending her Facebook messages again. He ultimately sent hundreds of messages, including ones that were rambling and delusional and others that were quotes and memes. Whalen never responded and blocked Counterman several times, but he would just create a new account and continue sending messages.

Counterman believed Whalen was responding through other websites and Facebook pages. Whalen became concerned after Counterman’s messages — including “You’re not being good for human relations. Die. Don’t need you.” and “Was that you in the white Jeep?” — suggested he was following her in person. Eventually, the messages were reported to law enforcement and Counterman was arrested. He was convicted and lost an appeal.

The justices’ ruling is a victory for Counterman and sends his case back to lower courts for another look. In a statement, his attorney John Elwood said that they are “gratified that the Supreme Court agreed with Billy Counterman that the First Amendment requires proof of mental state before it can imprison a person for statements that are perceived as threatening.”

Colorado Attorney General Phil Weiser, whose office prosecuted Counterman, said in a statement that the decision will make it “more difficult to stop stalkers from tormenting their victims.”

“In today’s ruling, the Court creates a loophole for delusional and devious stalkers and misapprehends the very nature of threats faced by stalking victims,” Weiser said. “In short, this decision will make it more likely that victims of threats— mostly women — will live in fear and will be discouraged from speaking out against their stalkers, believing there is little they can do to hold those stalkers accountable.”

The case is Counterman v. Colorado, 22-138.

Opinion of the Court Counterman v. Colorado

source 1  source 2  source 3  source 4 source 5 source 6 source 7

Making annoying phone calls in described under California Penal Code Section 653m. This statute makes it a crime to make repeated or harassing phone calls, or phone calls that use obscene or threatening language. Many PC 653m criminal cases are related to domestic violence.

It should be noted a few incidents of an annoying phone calls is not enough to support a charge under Penal Code 653m. There must be multiple phone calls, or repeated harassment, in order to face criminal charges.

It should also be noted annoying or harassing calls don’t always have to me made using a phone. PC 653m also covers sending obscene text messages, emails, or other types of electronic communication. Modern technology and caller ID provides evidence of making annoying phone calls.

An example of PC 653m making annoying or harassing phone calls includes a situation of where a couple is in the middle of a divorce and living in separate locations. One spouse is unhappy with current child custody arrangement, and they begin to make repeated threatening phone calls.

A most common method to prove an annoying phones case is the voice mails left by the caller. The amount and length of the phone calls, and the relationship between the victim and caller are crucial factors considered by a prosecutor on whether to file criminal charges.

To give readers useful information about the crime of PC 653m making annoying phone calls, our criminal defense lawyers will outline the law below.

DEFINITION OF PENAL CODE 653M – ANNOYING PHONE CALLS

California Penal Code 653m PC defines making annoying or harassing phone calls:

Anyone who, with the intent to annoy, telephones or makes repeated contact with an electronic communication device with another person using obscene language, or with a threat to inflict injury to them, or their property, or members of their family, is guilty of a misdemeanor.

In order to convict you of penal Code 653m, the prosecutor has to prove you intentionally made the phone calls to annoy, or used obscene language, or you made a threat to inflict great bodily injury or death.

In a situation where you made threats to commit great bodily injury or death, the prosecutor could file Penal Code 422 criminal threats charges.

It’s crucial to note that a phone call, text message, email, or other communication has to be more than just annoying to be considered a crime. The calls will normally involve threats, obscene language, or the repeated harassing phone calls.

obscene language doesn’t have to be sexual in nature to be considered obscene , rather it could include any language considered offensive, or that violates general standard of being appropriate, such as profanity.

Again, the relationship between the two parties is an important factor to determine if the language was obscene .  The prosecutor must also be able to prove that you had intent to annoy or harass the victim when you made the phone calls.

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

In general, phone calls that are made for legitimate business reasons will not qualify as annoying telephone calls. The California crimes that are closely related to Penal Code 653m include:

Penal Code 422 – Criminal threats

Penal Code 646.9 – Stalking

Penal Code 273.6 – Violation of a restraining order

PENALTIES FOR PENAL CODE 653M ANNOYING PHONE CALLS

If convicted of PC 653m making annoying phone calls, it’s a misdemeanor crime that carries up to six months in a county jail, a fine up to $1,000, or both jail and a fine.

The judge has the discretion to suspend the sentence or just order misdemeanor probation, the judge could also order that you attend mandatory counseling.

As stated, Penal Code 422 criminal threats is a closely related charged to Penal Code 653m, making annoying phone calls. PC 422 is the more serious charge and will be filed in cases where you threaten great bodily injury or death, intended the communication as a threat, and caused the victim to fear for their own safety, or safety of their family.

PC 422 is a “wobbler,” which means the prosecutor has the discretion to file the case as either a misdemeanor or felony crime.

If convicted of criminal threats as a misdemeanor, you are facing the same penalties as PC 653m charges. However, if convicted of felony criminal threats, you are facing up to three years in a California state prison, a fine up to $10,000, or both.

FIGHTING PC 653M ANNOYING PHONE CALLS CHARGES

It should be noted the prosecutor carries the burden of proof in cases of PC 653m making annoying phone calls. If they are unable to prove the elements of the crime, you should be able to avoid a conviction.

If you are accused of making annoying or harassing phone calls, our Los Angeles criminal defense attorneys can use a range of strategies to fight the case.

Lack of intent to annoy or harass 

Recall the elements of the crime above in an annoying phone call case. It must be proven you had intent to annoy or harass alleged victim. We might be able to make an argument that you never possessed such intent. Perhaps we could prove the calls were made in good faith, or they were business related.

Language not obscene

If the prosecutor is alleging you made annoying phone calls using obscene language, we might be able to make an argument that the language was not in fact obscene. You have a right to free speech and the court will need to determine what type of language was obscene.

False allegation

We might be able to prove with evidence using phone and other records that you were not the person making the annoying phone calls. Perhaps we could prove you were falsely accused by someone with a perceived motive to cause you harm, such as revenge or jealously.

It’s important to note that the key element in a PC 653m making annoying or harassing phone call is intent. This must be proven to be convicted.

If you were charged with California Penal Code 653m making annoying or harassing phone calls, you should not make any statements to police or you risk making incriminating statements. source

We also have the Reichle v. Howards (2012) – 1st Amendment – Retaliatory Police Arrests
Retaliatory Prosecution Claims Against Government Officials – 1st Amendment

Mi$Conduct – Pro$ecutorial Mi$Conduct Prosecutor$

Attorney Rule$ of Engagement – Government (A.K.A. THE PRO$UCTOR) and Public/Private Attorney

What is a Fiduciary Duty; Breach of Fiduciary Duty

Zamos v. Stroud – District Attorney Liable for Bad Faith Action – Click Here

The Attorney’s Sworn Oath

Malicious Prosecution / Prosecutorial Misconduct – Know What it is!

New Supreme Court Ruling – Thompson vs Clark makes it easier to sue prosecutor and police

Possible courses of action Prosecutorial Misconduct

Misconduct by Judges & Prosecutor – Rules of Professional Conduct

Functions and Duties of the Prosecutor – Prosecution Conduct

Standards on Prosecutorial Investigations – Prosecutorial Investigations

Information On Prosecutorial Discretion

Why Judges, District Attorneys or Attorneys Must Sometimes Recuse Themselves

Fighting Discovery Abuse in Litigation – Forensic & Investigative Accounting – Click Here

Criminal Motions § 1:9 – Motion for Recusal of Prosecutor

Pen. Code, § 1424 – Recusal of Prosecutor

Removing Corrupt Judges, Prosecutors, Jurors and other Individuals & Fake Evidence from Your Case

National District Attorneys Association puts out its standards
National Prosecution Standards – NDD can be found here

The Ethical Obligations of Prosecutors in Cases Involving Postconviction Claims of Innocence

ABA – Functions and Duties of the Prosecutor – Prosecution Conduct

Prosecutor’s Duty Duty to Disclose Exculpatory Evidence Fordham Law Review PDF

Chapter 14 Disclosure of Exculpatory and Impeachment Information PDF

653m. (a) Every person who, with intent to annoy, telephones or makes contact by means of an electronic communication device with another and addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.

(b) Every person who, with intent to annoy or harass, makes repeated telephone calls or makes repeated contact by means of an electronic communication device, or makes any combination of calls or contact, to another person is, whether or not conversation ensues from making the telephone call or contact by means of an electronic communication device, guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith or during the ordinary course and scope of business.

(c) Any offense committed by use of a telephone may be deemed to have been committed when and where the telephone call or calls were made or received. Any offense committed by use of an electronic communication device or medium, including the Internet, may be deemed to have been committed when and where the electronic communication or communications were originally sent or first viewed by the recipient.

(d) Subdivision (a) or (b) is violated when the person acting with intent to annoy makes a telephone call or contact by means of an electronic communication device requesting a return call and performs the acts prohibited under subdivision (a) or (b) upon receiving the return call.

(e) Subdivision (a) or (b) is violated when a person knowingly permits any telephone or electronic communication under the person’s control to be used for the purposes prohibited by those subdivisions.

(f) If probation is granted, or the execution or imposition of sentence is suspended, for any person convicted under this section, the court may order as a condition of probation that the person participate in counseling.

(g) For purposes of this section, the term “electronic communication device” includes, but is not limited to, telephones, cellular phones, computers, video recorders, facsimile machines, pagers, personal digital assistants, smartphones, and any other device that transfers signs, signals, writing, images, sounds, or data. “Electronic communication device” also includes, but is not limited to, videophones, TTY/TDD devices, and all other devices used to aid or assist communication to or from deaf or disabled persons. “Electronic communication” has the same meaning as the term defined in Subsection 12 of Section 2510 of Title 18 of the United States Code.

Luckily, a phone call, text message, or other communication needs to be more than simply annoying to qualify as a criminal annoying communication. It needs to

• involve obscene language or threats, or else
• be one of a series of repeated harassing phone calls.³

Often Penal Code 653m charges are filed in connection with cases that also involve

• domestic violence or
• stalking.

The bad news is that it is not always easy to tell what kind of obscene language or threats can lead to criminal liability for annoying telephone calls. California courts are still trying to figure this out too. ⁴

This means that it may be hard for someone to understand in advance whether what they are doing is a crime.

In this article, our California criminal defense attorneys⁵ explain Penal Code 653m PC, the Penal Code section for annoying phone calls, and the consequences of an annoying phone calls conviction, by addressing the following:

• 1. When is it a crime to make annoying telephone calls in California?
  • 1.1. Making or permitting a telephone call or electronic communication
  • 1.2. Obscene language, threats, or repeated calls
  • 1.3. Intent to harass or annoy
• 2. What are the penalties for annoying phone calls?
• 3. How can I fight charges of Penal Code 653m PC?
  • 3.1. You had no intent to annoy or harass
  • 3.2. Your language was not actually “obscene”
  • 3.3. You were legally insane
• 4. PC 653m and related offenses
  • 4.1. Criminal threats (Penal Code 422 PC)
  • 4.2. Violating a restraining order (Penal Code 273.6 PC)
  • 4.3. Stalking and cyberstalking (Penal Code 646.9 PC)

1. When is it a crime to make annoying telephone calls in California?

For you to be convicted of making annoying or harassing telephone calls or communications under Penal Code 653m PC, prosecutors must prove that:

1. You made or permitted a telephone call or electronic communication; and
2. It involved obscene language, threats, or repeated calls; and
3. You had the intent to harass or annoy.

1.1. Making or permitting a telephone call or electronic communication

The first element in the legal definition of PC 653m annoying phone calls is that you made telephone calls to (or made contact using an “electronic communication device” with) the person you were allegedly annoying or harassing.⁶

An “electronic communication device” includes just about anything you can think of:

• a regular phone,
• a cell phone,
• a smartphone,
• a computer,
• a fax machine,
• a pager, and
• a video recorder, for starters.⁷

So the following would all count as violations of the law against annoying or harassing electronic communications:

1. Harassing text messages,
2. Harassing emails,
3. Harassing letters sent by fax, and
4. Disturbing photos taken on, and then sent directly from, a smartphone.

1. When is it a crime to make annoying telephone calls in California?

For you to be convicted of making annoying or harassing telephone calls or communications under Penal Code 653m PC, prosecutors must prove that:

1. You made or permitted a telephone call or electronic communication; and
2. It involved obscene language, threats, or repeated calls; and
3. You had the intent to harass or annoy.

1.1. Making or permitting a telephone call or electronic communication

The first element in the legal definition of PC 653m annoying phone calls is that you made telephone calls to (or made contact using an “electronic communication device” with) the person you were allegedly annoying or harassing.⁶

An “electronic communication device” includes just about anything you can think of:

• a regular phone,
• a cell phone,
• a smartphone,
• a computer,
• a fax machine,
• a pager, and
• a video recorder, for starters.⁷

So the following would all count as violations of the law against annoying or harassing electronic communications:

1. Harassing text messages,
2. Harassing emails,
3. Harassing letters sent by fax, and
4. Disturbing photos taken on, and then sent directly from, a smartphone.

The law also makes clear that you can violate Penal Code 653m even if you call or contact someone, they do not answer, and then they call you back – at which point you then use obscene or threatening language toward them.⁸

In other words, you can violate the law against annoying phone calls by behavior on a phone call that you did not actually dial – as long as you requested that the other person call you.

Example: Callie resents her ex-husband’s new girlfriend, Rachel. She calls Rachel’s cell phone. When Rachel doesn’t pick up, Callie leaves a message pretending to be a bill collector and asking Callie to call her back.

Rachel calls Callie back. Callie then insults her using profanities and threatens to burn down her house. Callie may be guilty of making annoying phone calls.

You can also be accused of making annoying phone calls under PC 653m even if you did not make a telephone call or send an electronic communication yourself. It is enough to let someone else use a phone or communication device that you control to make an annoying phone call or electronic communication.⁹

To be convicted of annoying calls for someone else’s call or communication from your phone or device, you have to have known that they were using your property for these purposes.¹⁰

1.2. Obscene language, threats, or repeated calls

There are three (3) types of criminally annoying or harassing telephone calls that violate California Penal Code 653m:

1. Calls or communications that use “obscene language,”¹¹
2. Calls or communications that involve a threat to injure the recipient, any of his family members, or his property,¹² and
3. Repeated calls or communications (regardless of the content).¹³

California courts have decided that a phone call or electronic message does not have to have sexual content in order to be obscene. Instead, the language just has to have content that is “offensive” or does not follow typical standards of what is decent and appropriate.¹⁴ So, for example,

• profanity or
• language describing graphic violence

can be obscene too.

The relationship between the person making the telephone call and the person receiving it is important in determining whether or not language is “obscene.”¹⁵ If the two people know each other well, and have a history of using strong language with one another, then language that might seem obscene in some situations might not be enough to make a phone call or communication annoying.¹⁶

Also, if the person receiving the call is in a public position – like the person who mans a customer complaint line – then it is less likely that a caller can be convicted of making annoying phone calls simply for using obscene language.¹⁷

Example: David is a very frequent customer at a national chain of ice cream shops. He also frequently calls their customer service telephone line to complain about the service he has received at the stores. In these calls, he often uses the “F” word.

David’s calls to the customer service line may be annoying, but they’re not a crime. His using the “F” word to express his strong emotions doesn’t make the calls obscene, in part because he’s calling a customer service line . . . the customer service representatives receiving the calls as part of their job don’t have the right to privacy that ordinary private citizens do.¹⁸

1.3. Intent to harass or annoy

Lastly, you can not be convicted of making annoying phone calls or electronic communications unless the prosecutor can prove that you actually intended to annoy or harass someone.¹⁹ You do not violate Penal Code 653m if you make a phone call or send an electronic message in good faith, or for some kind of legitimate business purpose.²⁰

Example: Paul and Cathy are good friends who frequently play practical jokes on one another. One day, Cathy decides to scare Paul by obtaining an email address he doesn’t recognize and sending him several emails in which she pretends to be a psychotic person who is him. These emails contain some vulgar language and threats to harm Paul. She intends to let him in on the joke the next day.

Cathy did not intend to annoy or harass Paul. She just wanted to play a practical joke. She is not guilty of the crime of sending annoying or harassing emails.

2. What are the penalties for annoying phone calls?

The California crime of making annoying phone calls (or sending annoying electronic communications) is a misdemeanor in California law.²¹ This means that the potential consequences of a PC 653m conviction are

• up to six (6) months in county jail and/or
• a fine of up to one thousand dollars ($1,000).²²

In some cases, the defendant found guilty of annoying phone calls may be sentenced to misdemeanor probation or given a suspended sentence. If this occurs, the judge may order the defendant to participate in counseling as a condition of probation.²³

3. How can I fight charges of Penal Code 653m PC?

Here at Shouse Law Group, we have represented literally thousands of people charged with harassment-related offenses such as making annoying phone calls. In our experience, the following three defenses have proven very effective with prosecutors and judges.

3.1. You had no intent to annoy or harass

One of the best defenses we can bring is to claim you had no intent to annoy or harass the person you contacted.²⁴  Instead, we would argue that you had a good faith intention or business purpose for making the call or sending the communication.

Prosecutors have no definitive way to prove what is going on inside your head. Therefore, there is a good chance that they will not be able to prove beyond a reasonable doubt that you intended to annoy or harass the alleged victim.²⁵

3.2. Your language was not actually “obscene”

What qualifies as “obscene” is subjective. If prosecutors accuse you of using obscene language during your phone call, we would argue to the court that what you said was protected artistic expression.²⁶

We may even be able to call an expert witness or show clips from movies or TV that support our argument that whatever you said falls short of obscene.²⁷ If we get the D.A. to recognize our point of view, they may dismiss the annoying phone call charge.

3.3. You were legally insane

In many cases, making an annoying phone call is a sign that the caller is in mental or emotional trouble. In these cases, we can plead not guilty by reason of insanity.

For you to be found legally insane, we have to prove the following two elements by a preponderance of the evidence:

1. You were incapable of knowing or understanding your actions at the time the crime was committed, AND
2. You were incapable of distinguishing right from wrong at the time the crime was committed.²⁸

By a preponderance of the evidence is a much lower standard than beyond a reasonable doubt: It just means it is more likely than not. Therefore, a judge can find you insane even if there is some doubt in their mind.²⁹

Typical evidence we rely on in these cases are:

• medical records,
• eyewitness testimony, and
• surveillance video.

Even if the judge does not find you insane, our evidence that you suffered from mental problems at the time of the annoying phone calls might convince the judge to sentence you to probation with counseling instead of jail.

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