People v. Rubin

96 Cal. App. 3d 968, 158 Cal. Rptr. 488, 1979 Cal. App. LEXIS 2139

• Court: California Court of Appeal
• Decided: September 17, 1979
• Docket: Crim. 34184
• Status: Published

Opinions

Opinion

FLEMING, J.

On March 16, 1978, Irving Rubin, a national director of the Jewish Defense League, held a press conference in Los Angeles, California, to protest a planned demonstration and march by the American Nazi Party to take place in Skokie, Illinois, on April 20, and to announce the organization of a counterdemonstration to stop the march. During the press conference Rubin held up five $100 bills and offered the following reward: “We are offering five hundred dollars, that I have in my hand, to any member of the community, be he Gentile or Jewish, who kills, maims, or seriously injures a member of the American Nazi Party. This offer is being made on the East Coast, on the West Coast. And if they bring us the ears, we’ll make it a thousand dollars. The fact of the matter is, that we’re deadly serious. This is not said in jest, we are deadly serious.” A criminal complaint was filed, Rubin was held to answer by the examining magistrate, and an information charged Rubin with solicitation of murder in violation of Penal Code section 653f. At a hearing to set aside the information, the trial court found probable cause for Rubin’s commitment for trial, in that his statements could be interpreted as solicitation to murder; but the court also concluded that the statements were protected as free speech under the First Amendment, in that although they solicited murder, their form and content indicated a desire to attract national media exposure and evidenced a lack of serious intent to solicit the commission of crime. The court ordered the information set aside, and the People have appealed.

Two issues are presented. First, whether the information should have been dismissed for lack of evidence of intent to solicit murder. Second, whether defendant’s advocacy of crime is constitutionally protected speech and thus immune from prosecution as criminal solicitation.

I

Probable Cause Supports the Information

Both the examining magistrate and the superior court found probable cause to believe Rubin had committed a public offense, and the trial court, apart from First Amendment grounds, denied the motion to set aside the information. Such a motion does not tender the issue of the guilt or innocence of the accused or the quantum of evidence necessary to sustain a conviction. Rather it presents the question whether the magistrate could entertain a reasonable suspicion that defendant had committed a crime. The standard has been set out at length in People v. Hall (1971) 3 Cal.3d 992, 996 [92 Cal.Rptr. 304, 479 P.2d 664]: “An information will not be set aside if there is some rational ground for assuming the possibility that an offense has been committed and the accused is guilty of it. ‘On a motion to set aside an information, the question of the guilt or innocence of the defendant is not before the court, nor does the issue concern the quantum of evidence necessary to sustain a judgment of conviction. The court is only to determine whether the magistrate, acting as a man of ordinary caution or prudence, could conscientiously entertain a reasonable suspicion that a public offense had been committed in which the defendant had participated.’ Neither the trial court in a section 995 proceeding nor a reviewing court on appeal therefrom may substitute its judgment as to the weight of the evidence for that of the committing magistrate. ‘Although the magistrate, in reaching his decision, may weigh the evidence, resolve conflicts, and give or withhold credence to witnesses, such a balancing of the evidence is not within the powers of a tribunal reviewing the magistrate’s order.’ Every legitimate inference that may be drawn from the evidence must be drawn in favor of the information.” (Citations omitted.) Defendant argues there was no substantial evidence of his specific intent to solicit the crime of murder, that his only specific intent had been to stimulate action in defense of the Jewish community, that by reason of the lack of evidence of specific intent to solicit murder, probable cause to support the accusation did not exist as a matter of law. The trial court rejected this argument, concluding that Rubin’s intent was susceptible to several interpretations, one of which was intent to solicit murder. Solicitation of murder to prevent a march through Skokie, said the judge, would constitute a crime.

We agree with this conclusion of the trial judge, in that under the standard of probable cause defendant’s statements could be interpreted as a solicitation of murder. “Solicitation consists of the asking of another to commit one of the specified crimes with intent that the crime be committed.” (People v. Gordon (1975) 47 Cal.App.3d 465, 472 [120 Cal.Rptr. 840].) Defendant’s true state of mind, his intent in offering a $500 reward to anyone “who kills, maims, or seriously injures a member of the American Nazi Party,” presents a question of fact to be determined by the trier of fact on the basis of evidence produced at a trial. Neither the superior court nor this court is entitled to resolve that question as a matter of law. (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197].) Accordingly, apart from First Amendment grounds, the information charging the crime of solicitation of murder is valid and is supported by probable cause.

II

Solicitation of Crime as Protected Advocacy

The superior court, after concluding that probable cause existed to support the charge of solicitation of murder, went on to further conclude that Rubin’s statements were protected as free speech by the First Amendment. The court arrived at this latter conclusion by deducing from the form and content of Rubin’s ’ statements that he had not seriously and truly intended to solicit murder, but had merely sought to attract national media attention. Rubin’s statements, in the court’s view, constituted no more than political hyperbole, and, as such, were protected against abridgement by the First Amendment. Accordingly, the court set aside the information. Patently, the trial court reached its decision by weighing the quality of Rubin’s intent, determining it was not a truly serious intent, and thence concluding that the offer of reward for murder was advocacy rather than solicitation. The court arrived at this result even though Rubin himself at his press conference said he was not speaking in jest and was “deadly serious,” and even though the specific intent with which an act is done presents an issue of fact.

In our view the trial court erred in undertaking to evaluate the quality of Rubin’s intent.

We start with the demonstrable fact of Rubin’s advocacy of violence in the form of murder, mayhem, and serious bodily injury. These acts are crimes, and their solicitation is a crime. Taken at face value, Rubin’s statements invite political assassination. But we must also take into account a demonstrable proposition of law—under the First Amendment to the Constitution free speech may include advocacy of the use of force and violence. This latter proposition is not absolute, and advocacy of crime may be limited under various tests, including those of clear and present danger, of probable danger, of incitement, and of balance. (Emerson, The System of Freedom of Expression (1970) pp. 16, 404-405, 717.) Accordingly, solicitation of murder is not written off the books as a crime, but under certain circumstances its prosecution may be circumscribed by a constitutional freedom to advocate murder.

The paradoxical issue before us is the extent to which a summons to crime is protectable as free speech. All tests for protected speech purport to distinguish abstract advocacy of indeterminate measures from concrete solicitation of specific and determinate acts. In a given case the issue is whether the summons is constitutionally protected advocacy of resort to crime in general or whether it is incitement to specific crime prosecutable as criminal solicitation. In past years free speech cases have presented two contrasting images—one, the classroom professor lecturing his students on the need to resort to terrorism to overthrow an oppressive government (constitutionally protected speech; cf. Sweezy v. New Hampshire (1957) 354 U.S. 234 [1 L.Ed.2d 1311, 77 S.Ct. 1203]); the other, the street demonstrator in the town square urging a mob to bum down city hall and lynch the chief of police (unprotected criminal incitement to violence; cf. Feiner v. New York (1951) 340 U.S. 315 [95 L.Ed. 295, 71 S.Ct. 303]). But in these days of the global village and the big trumpet the line between advocacy and solicitation has become blurred; and when advocacy of crime is combined with the staging of a media event, the prototype images tend to merge. The classroom becomes a broadcasting studio, the mob in the town square becomes a myriad of unknown viewers and listeners throughout the broadcast area, and the critical distinction between abstract advocacy of crime in general and concrete solicitation of crime in particular breaks down. When, as here, political assassination is urged upon a greatly enlarged audience, the incitement to crime may possess a far greater capacity for civil disruption than the oral harangue of a mob in the town square, for the unseen audience of unknown listeners may contain another Oswald, or Ruby, or Sirhan, or Ray, or Bremer, or Moore, or Fromm, who may respond literally to the invitation of the speaker, regardless of the speaker’s true intent. The threat to civil order presented by advocacy of assassination must be realistically evaluated in the light of its potential for deadly mischief.

One other general comment is appropriate. The leading cases evaluating the character of speech as lawful advocacy or as criminal threat/solicitation have all been determined after trial of the general issue to verdict and judgment. (Schenck v. United States (1919) 249 U.S. 47 [63 L.Ed. 470, 39 S.Ct. 247]; Dennis v. United States (1951) 341 U.S. 494 [95 L.Ed. 1137, 71 S.Ct. 857]; Yates v. United States (1957) 354 U.S. 298 [1 L.Ed.2d 1356, 77 S.Ct. 1064]; Watts v. United States (1969) 394 U.S. 705 [22 L.Ed.2d 664, 89 S.Ct. 1399]; Brandenberg v. Ohio (1969) 395 U.S. 444 [23 L.Ed.2d 430, 89 S.Ct. 1827]; Hess v. Indiana (1973) 414 U.S. 105 [38 L.Ed.2d 303, 94 S.Ct. 326]; United States v. Kelner (2d Cir. 1976) 534 F.2d 1020.) In these cases the quality of the defendant’s specific intent to threaten or solicit crime had been evaluated by a factual determination. At bench, we have not yet reached that stage, and the quality of Rubin’s specific intent has not been passed upon by a trier of fact.

In considering the motion to set aside the information on First Amendment grounds, the trial court’s function was not to evaluate Rubin’s specific intent, but rather to analyze the words and circumstances of his offer of reward to anyone “who kills, maims, or seriously injures a member of the American Nazi Party” and determine whether the offer constituted constitutionally protected speech as a matter of law. At that stage of the proceeding once probable cause had been found, Rubin’s specific intent to solicit murder became largely immaterial. Speech is protected or not in the context of its expression and surroundings, and, if protected, the constitutional protection takes hold, regardless of the purity or malignancy of the speaker’s motives. If Rubin’s speech were constitutionally protected, his intent would be immaterial and could be as murderous as he pleased. However, the controlling factors for First Amendment purposes are not specific intent but the words and attendant circumstances of the offer, which determine whether or not the offer is constitutionally protected speech, even though on its face it solicits the commission of crime. If these words in their setting are protected speech, Rubin cannot be held to answer the charge of solicitation of murder, and the trial court’s dismissal was correct. (Dennis v. United States (1951) 341 U.S. 494, 513 [95 L.Ed. 1137, 1154, 71 S.Ct. 857].) But if the words in their circumstances are not protected speech, the issue turns on Rubin’s specific intent, the cause presents an issue of fact for resolution by the trier of fact, and its dismissal was improper.

Thus, on this appeal we are not concerned with Rubin’s specific intent. Rather we must evaluate Rubin’s words in the light of their attendant circumstances to determine whether mere general advocacy of crime was involved or whether Rubin’s offer of reward taken at face value could reasonably be construed as soliciting the commission of crime and was therefore unshielded by the First Amendment. (Cf. aircraft hijack and bomb threat causes: United States v. Irving (5th Cir. 1975) 509 F.2d 1325, false information about a future indefinite hijacking attempt not protected as free speech; United States v. Rutherford (2d Cir. 1964) 332 F.2d 444, intent to destroy airplane is immaterial in offense of bomb threat.)

The facts and circumstances which differentiate advocacy of crime from solicitation of crime are those which differentiate advocacy of abstract doctrine from advocacy of incitement to unlawful action (Yates v. United States (1957) supra, 354 U.S. 298, 318-326-327 [1 L.Ed.2d 1356, 1374, 1379, 1380]). Their application may be seen in Brandenberg v. Ohio (1969) supra, 395 U.S. 444 [23 L.Ed.2d 430, 89 S.Ct. 1827], a conviction under Ohio’s criminal syndicalism law of a leader of the Ku Klux Klan for advocating the general propriety of crime at a rally held for media reporters during which a cross had been burned and statements made derogatory to Negroes and Jews. In reversing the conviction the court declared that “the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” (P. 447 [23 L.Ed.2d, p. 434].) Mere abstract teaching of the moral propriety of resort to force and violence, said the court, is not the same as preparing and steeling a group for violent action. A similar case is Watts v. United States (1969) 394 U.S. 705 [22 L.Ed.2d 664, 89 S.Ct. 1399], a prosecution for threat against the President by a participant in a public discussion group who had said that if inducted into the Army and made to carry a rifle, “the first man I want to get in my sights is L.B.J.” In reversing the conviction the court declared that threat must be distinguished from constitutionally protected speech, that the prosecution must prove a true threat rather than the kind of political hyperbole that occurred here. A recent informative case dealing with threat is United States v. Kelner (2 Cir. 1976) 534 F.2d 1020, where defendant, a member of the Jewish Defense League, was convicted of transmitting over television a threat to assassinate Yasser Arafat. On appeal, the court rejected the claim of freedom of expression, declined to identify the assassination threat as political hyperbole, and declared it the function of the jury to evaluate the intent behind the threat.

Although these cases deal primarily with threats to assassinate rather than solicitation of assassination they delineate the factors that differendate advocacy of crime as abstract doctrine from advocacy of crime as incitement to concrete action (cf. Yates v. United States (1957) supra, 354 U.S. 298, 318-324 [1 L.Ed.2d 1356, 1374-1378]). In Brandenberg v. Ohio (1969) supra, 395 U.S. 444, 447 [23 L.Ed.2d 430, 433-434], the Supreme Court suggested evaluation of the language of advocacy in the light of two considerations: (1) its incitement to imminent lawless action; (2) its likelihood of producing such action. (Cf. Hess v. Indiana (1973) supra, 414 U.S. 105, 108 [38 L.Ed.2d 303, 307].) This particular formula parallels the test delineated by Justice Holmes on behalf of the Supreme Court in Schenck v. United States (1919) 249 U.S. 47 [63 L.Ed. 470, 39 S.Ct. 247], in which, after saying that the most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic, he refers to the test of clear and present danger and declares that protection of free speech is a question of proximity and degree. We consider the application of these factors to the cause at bench.

Proximity: Incitement to Imminent Lawless Action. Since murder is lawless action and an offer of reward for murder is, assuredly, an incitement, imminence is the critical element here in the factor of proximity. Imminence, a function of time, refers to an event which threatens to happen momentarily, is about to happen, or is at the point of happening. But time is a relative dimension and imminence a relative term, and the imminence of an event is related to its nature. A' total eclipse of the sun next year is said to be imminent. An April shower 30 minutes away is not. The event which concerns us here was the scheduled Nazi Party demonstration and march to be held in Skokie in five weeks, an event which had already attracted national attention. We think that in terms of political assassination the demonstration could be said to have been proximate and imminent, just as a Papal visit to Belfást, a Soviet chief of state’s visit to Rome, a presidential campaign trip to Dallas, and a presidential inauguration in Washington, can each be said to be proximate and imminent, even though occurrence may be some weeks away. The concurring opinion of Judge Mulligan in United States v. Kelner (1976) supra, 534 F.2d 1020, makes this point. “For example, if the threat here had been made in the same setting but had been phrased, ‘We plan to kill Arafat a week from today unless he pays us $1,000,000,’ I would hold that the threat is still well within § 875(c) and not protected under the First Amendment although the threatened homicide is not immediate, imminent or unconditional under the test proposed by Judge Oakes. We have already held that a threat to assassinate the President some two weeks later is within a comparable statute, 18 U.S.C. § 871. United States v. Compton, 428 F.2d 18 (2d Cir. 1970), cert, denied, 401 , 91 S.Ct. 1259, 28 L.Ed.2d 551 (1971).” (At p. 1029.) United States v. Compton, supra, involved a threat on April 14 to assassinate the President toward the end of April or the beginning of May. Additionally, the seriousness of the threatened crime, i.e. the nature of the lawless action solicited, bears some relationship to its imminence. Generally speaking, the more serious the crime the greater its time span. Murder, the most serious crime of all, carries the longest time span of any crime, as shown by the lack of any time limitation on its prosecution (Pen. Code, § 799) and a threat of murder can be imminent at a time when a threat of trespass is not.

We think solicitation of murder in connection with a public event of this notoriety, even though five weeks away, can qualify as incitement to imminent lawless action.

Degree: Likelihood of Producing Action. Here we are concerned with the practicality and feasibility of the solicitation—was it likely to incite or produce violence? We cannot, of course, answer this question with assurance, for the elfect of emotional appeals for political violence on the actions of inherently unstable personalities remains obscure. But we think it a reasonable inference that serious reportage by respectable news media of a reward for murder tends in some degree to give respectability to what otherwise would remain an underground solicitation of limited credibility addressed to a limited audience, and thereby tends to increase the risk and likelihood of violence. Undoubtedly, the prosecution’s case would be stronger if a specific Nazi Party member had been named as the target for assassination and if the demonstration had been one scheduled to take place in Los Angeles rather than in Skokie. Yet murder remains a crime, whether or not a specified victim is identified as the target (People v. Aranda (1938) 12 Cal.2d 307, 310 [83 P.2d 928]; People v. Smith (1973) 33 Cal.App.3d 51, 66 [108 Cal.Rptr. 698]; People v. Orabuena (1976) 56 Cal.App.3d 540, 545 [128 Cal.Rptr. 474]), and solicitation in California of murder in Illinois is nonetheless solicitation of murder. (People v. Ayers (1975) 51 Cal.App.3d 370 [124 Cal.Rptr. 283].)

The solicitation to murder here was not made in a jesting or conditional manner, nor was it the outcome of an improvised piece of braggadocio. (Cf. Watts v. United States (1969) supra, 394 U.S. 705, 707 [22 L.Ed.2d 664, 666-667]; United States v. Kelner, supra, 534 F.2d at p. 1025.) Its words and circumstances suggest the possibility it might incite or produce the violence sought. Rubin himself referred to earlier bloodshed in St. Louis, and he predicted bloodshed in Skokie unless the permit for the demonstration were revoked. Some of the comments of the court in United States v. Kelner (1976) supra, 534 F.2d 1020, are germane. “. . . we believe that important national interests similar to those in Watts exist here, more specifically, the governmental interest of reducing the climate of violence to which true threats of injury necessarily contribute. As a part of the Government’s constitutional responsibility to insure domestic tranquility, it is properly concerned—in an era of ever-increasing acts of violence and terrorism, coupled with technological opportunities to carry out threats of injury—with prohibiting as criminal conduct specific threats of physical injury to others, whether directed toward our own or another nation’s leaders or members of the public.” (P. 1026.)

From the words and circumstances of Rubin’s offer we conclude there was sufficient likelihood of his solicitation being interpreted as a call to arms, as a preparation and steelment of his group to violent action, as a systematic promotion of future bloodshed in the streets, rather than as a communication of ideas through reasoned public discussion, to remove it from the category of protected speech and require Rubin to answer the charges against him.

The order setting aside the information is reversed.

Beach, J., concurred.