In the Supreme Court’s decision yesterday in People v. Lowery, S179422, we saw a rare procedural oddity: a majority of the Court joined in a concurring opinion. There, in a unanimous opinion written by Justice Joyce Kennard, the Court held that Penal Code section 140, subdivision(a), which prohibits willful threats of violence against a crime victim or witness, is valid under the First Amendment. The Court held the statute only applies to threatening statements that a reasonable listener would understand to constitute a “true threat” as defined by the U.S. Supreme Court in Virginia v. Black (2003) 538 U.S. 343, 359. That’s not the strange part. What is strange is that five members of the Court not only signed on to Justice Kennard’s lead opinion, but also joined in a separate concurring opinion authored by Justice Marvin Baxter. The purpose of that concurring opinion is to express disagreement with the Ninth Circuit’s “mistaken belief”—stated most recently in United States v. Bagdasarian (9th Cir. July 19, 2011, No. 09-50529) ___ F.3d ____[2011 U.S. App. Lexis 14684]—that a “true threat” requires that the speaker subjectively intend his or her statements to be taken as a threat.
Reviewing the opinion, we were forced to wonder why Justice Baxter did not author the lead opinion and Justice Kennard the concurrence. That would seem to make more sense given the views of the Court as a whole. And, failing that, why were the views expressed in the concurrence not included in the lead opinion? One might conclude those views were not incorporated into the lead opinion because Justice Kennard and Second District Court of Appeal Justice Laurie Zelon (sitting by designation) agree with the Ninth Circuit’s view that subjective intent must be an element of the crime. But if that is so, why did Justice Kennard write in her unanimous lead opinion that the Court is “not persuaded” by the Ninth Circuit’s conclusion “that every statute criminally punishing threats must include as an element of proof the defendant’s subjective intent to make a threat”? All we can say for sure is that Justice Kennard and Justice Zelon were unwilling to be as categorical as Justice Baxter and the rest of the Court in their rejection of a subjective intent requirement.