California bill targets 'hate littering' as speech advocates raise concerns

(The Center Square) - A new California bill ostensibly designed to punish “hateful messaging” could threaten constitutionally protected free speech.

AB 3024, proposed by Assemblymember Chris Ward, D-San Diego, as a bill to “curb hate littering,” would expand the state’s definition of “intimidation by threat of violence” in the state's civil code to include “distribution of hateful materials on the private property of another without authorization for the purpose of terrorizing … in reckless disregard of the risk of terrorizing the owner or occupant of that private property.” The bill defines “terrorizing” as causing “a person of ordinary emotions and sensibilities to fear for personal safety.” Those who commit hate littering could be sued in civil court by victims for “actual damages suffered … and, in addition, exemplary damages, a civil penalty of $25,000, and attorney’s fees.”

Free speech experts say this definition, by deviating from the Supreme Court’s definition of “true threat” for allowed legal limits on threatening speech, and citing instances where police said “there are no direct threats” in its rollout, suggests this law could target constitutionally protected free speech.

“If constitutionally protected speech that falls short of true threats inspired this, that raises concerns that authorities may try to enforce it against protected speech,” said FIRE Director of Public Advocacy Aaron Terr to The Center Square. “In its zeal to combat hate littering, California needs to make sure it doesn’t crumple up the First Amendment and throw it on the ground.”

According to the University of Wisconsin’s free speech, rights, and responsibilities information page, “true threats include when a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death,” which it says means “expression that may seem threatening may be protected, as only true threats where the speaker expresses intent to explicitly cause immediate harm are prohibited.”

Barring any changes, Ward’s proposed threat standard may not meet the true threat standard established by the Supreme Court.

California’s criminal code already defines terrorize as to “cause a person of ordinary emotions and sensibilities to fear for personal safety” in speech and related acts in which “the advocacy of unlawful violent acts by groups against other persons or groups under circumstances where death or great bodily injury is likely.” Punishment for such actions could include fines of up to $15,000 and three years of imprisonment.

Ward may be seeking to place AB 3024 under the state’s civil code, not criminal code, because civil violations both have lower burdens of proof and may appear less restrictive of the First Amendment than criminal punishments. Civil cases typically have a lower burden of proof — preponderance of the evidence, or more likely than not — compared to criminal cases, which require proof beyond a reasonable doubt. However, with civil rights violations often pursued by government prosecutors, alleged perpetrators could still face the state in court under this lower burden of proof.

The bill will be heard by the Assembly Judiciary Committee on April 2.