[The original was on the letterhead of Martin Kassman, Attorney at Law.]
and Honorable Associate Justices
California Supreme Court
350 McAllister St.
San Francisco, CA 94102-3600
Re: In re George T., Case Nos. S111780 (California Supreme Court), H023080 (California Court of Appeal, Sixth District), J122537 (Santa Clara County Superior Court)
Dear Chief Justice George and Associate Justices:
I am writing on behalf of myself as an amicus curiae. In
accordance with California Rules of Court, rule 28(g), I write to
urge the court to grant review in the above-referenced case.
I. Statement of Interest (Rule 28(g)(2))
I am an attorney in solo law practice, a freelance
journalist who previously has been a full-time journalist, and a
longtime First Amendment activist. I am very concerned about
what I perceive to be a pattern of government officials' reacting
to tragedies, such as school shootings and the September 11
attacks, by employing purported security measures that violate
the civil liberties of individuals who bore no responsibility for
the tragedies. In my opinion, the prosecution of the minor in
the instant case is an example of a misguided government reaction
to the school shootings of recent years.(1) I feel that the Court
of Appeal majority's opinion -- particularly its dismissive
treatment of the First Amendment claim -- constitutes a threat to
people who express themselves forcefully or who advance
controversial views, both of which I have been known to do.
Since criminal appeals are a large part of my practice, I also am
disturbed by the majority's overly deferential review of the
claim of insufficient evidence and its overly broad reading of
Penal Code section 422.
II. The Court Should Grant Review to Make Clear That Appellate Courts Must Engage in Independent, Not Deferential, Review of First Amendment Claims in Criminal and Juvenile Delinquency Cases.
The Court of Appeal majority gave extremely short shrift to
the First Amendment argument advanced by the defendant and appellant, minor George T., who asserted that his writing a "dark poem" and sharing it with his schoolmates was expressive activity
protected by the United States Constitution. The majority rejected that argument in a single paragraph that cited to a single
case. (Maj. opn., p. 16.) That paragraph appeared in the middle
of part II. A. of the opinion -- the majority's discussion of the
minor's claim of insufficiency of the evidence (id. at pp. 10-21) -- with no separate heading or subheading. The majority explicitly applied a deferential "substantial evidence" standard in
part II. A. (Id. at p. 12.) Apparently, it never occurred to
the majority that a First Amendment claim might be subject to a
different standard of review.
"[I]n cases raising First Amendment issues [the United
States Supreme Court has] repeatedly held that an appellate court
has an obligation to 'make an independent examination of the
whole record' in order to make sure that 'the judgment does not
constitute a forbidden intrusion on the field of free
expression.'" (Bose Corp. v. Consumers Union (1984) 466 U.S.
485, 499, quoting New York Times Co. v. Sullivan (1964) 376 U.S.
254, 284-286). The high court has not limited this principle to
civil cases, such as Bose and New York Times, but has applied it
in criminal cases as well. (Cox v. Louisiana (1965) 379 U.S.
536, 545, fn. 8 [convictions for disturbing peace and obstructing
public passages challenged as violating First Amendment
guarantees of free speech and free assembly; "[b]ecause a claim
of constitutionally protected right is involved, it 'remains our
duty in a case such as this to make an independent examination of
the whole record,'" quoting Edwards v. South Carolina (1963) 372
U.S. 229, 235]; see Colten v. Kentucky (1972) 407 U.S. 104, 107,
fn. 1 [citing Cox to explain why high court conducted its "own
examination of the record"].)
So far as my research reveals, this court never has had occasion, in a criminal or juvenile delinquency case, to discuss
the First Amendment requirement of independent appellate review.
The court's most recent pronouncement on the subject in a civil
case, however, contained a dictum questioning whether independent
review was required outside of the defamation context involved in
Bose and New York Times. (Planned Parenthood Shasta-Diablo, Inc.
v. Williams (1994) 7 Cal.4th 860, 865, fn. 1, judg. vacated and
cause remanded (1994) 513 U.S. 956, reaffd. (1995) 10 Cal.4th
1009.) Justice Arabian's majority opinion, signed by six justices, indicated that the court had viewed the record "independently to determine whether the evidence supports the judgment."
(Id. at p. 865, citing Bose Corp. v. Consumers Union, supra, 466
U.S. at pp. 498-511.) In a footnote, however, the court stated:
Bose held that in cases involving the constitutional rule of [New York Times Co. v. Sullivan, supra] facts pertinent to the critical question of actual malice must be independently reviewed. [Citations.] It is unclear whether appellate courts have a duty to review de novo all facts relevant to the application of First Amendment principles in all cases involving time, place and manner restrictions. [Citations.] We need not resolve this question, however, since we determine that, under any standard, the trial court's findings should not be disturbed.
(Id. at p. 865, fn. 1.)
Justice Kennard, in dissent, supported a broad application
of the independent review principle:
When it reviews an order restricting First Amendment rights, an appellate court must "'make an independent examination of the whole record' . . . to make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.'" [Citations to Bose and other cases.] The United States Supreme Court has explained the rationale for this heightened standard of review, in these words: "'[I]t is of prime importance that no constitutional freedom, least of all the guarantees of the Bill of Rights, be defeated by insubstantial findings of fact screening reality.'" [Citations.]
(Id. at pp. 883-884 (dis. opn. of Kennard, J.).)
Justice Kennard went on to criticize the majority's application of the independent review principle: "The majority pays lip
service to the independent judgment standard of review, but it
does not give the trial evidence the careful scrutiny that the
standard requires." (Id. at p. 884.)
In the instant case, the Court of Appeal majority did not
even pay "lip service" to the rule that First Amendment claims
are subject to independent appellate review. The majority repeatedly emphasized that it was deferring to the juvenile court's
findings. Indeed, the majority's response to the minor's petition for rehearing was to add to its opinion a quotation from the
trial judge stating that he had "given this case a lot of
thought" while hearing the evidence. (Order Modifying Opinion
and Denying Rehearing, filed Nov. 13, 2002.)
This court should, therefore, grant review and provide guidance to the courts of appeal for future criminal and juvenile
delinquency cases involving First Amendment issues. The court
should make clear that, in every case in which a violation of the
First Amendment is claimed, appellate courts must independently
review the record to ensure that the judgment does not unduly
hinder freedom of expression.
I am aware that the minor has not, in his petition for review, explicitly raised the question whether the Court of Appeal
should have applied independent review to his First Amendment
claim. This court is, of course, not limited to reviewing only
those issues the parties choose to raise. (Cal. Rules of Court,
rule 29(b)(2).) Moreover, if the court grants review (as I believe it should) on the substantive issue of whether the minor's
conviction violated his First Amendment rights -- which the minor
has explicitly raised (Petn. for Review, p. 2) -- determining the
standard of review will be a necessary step in resolving the substantive question.
On the merits, I urge the court to hold that the minor was
within his First Amendment rights to express his "dark" thoughts
in poetry and to allow his schoolmates to read that poetry. I
will not here attempt a full discussion of the merits, but I find
it ironic that the same Court of Appeal majority which gave such
short shrift to the minor's First Amendment claim expended
considerable effort in belaboring irrelevant facts and twisting
them to fit its theories.
For example, the majority asserts: "The fact that Julius
made his threat near the end of Friday classes suggests the
relatively immediate prospect of its execution on the following
Monday." (Maj. opn., p. 19.) By the majority's logic, however,
if the minor had shown the poem to his schoolmates on a Monday,
Tuesday, Wednesday or Thursday, when no weekend would have intervened before the next school day, he would have been suggesting
its "execution" the next day, not three days later. Thus, far
from supporting the conviction, the minor's choice of a Friday
suggested a less immediate "execution" of the "threat" than might
have been inferred on a different day of the week.
For another example, the majority points to the minor's
awareness that his uncle had a hunting rifle, a revolver, and
ammunition in the house where the uncle, the minor and the
minor's father lived, and the fact that the uncle was surprised
to learn that the minor knew about the guns. (Maj. opn., pp. 6,
15.) According to the majority, the minor's awareness of the
guns and ammunition is "further evidence that Julius intended his
words to be taken as a threat." (Id. at p. 15.) The majority's
logic escapes me. There was no evidence that the minor's schoolmates knew about the guns and ammunition.(2) Nor was there any
evidence suggesting that the minor thought that his schoolmates
knew about them. Accordingly, the minor's awareness of the guns
and ammunition could have no bearing on how he intended his
schoolmates to interpret the poem.
III. Conclusion
For the foregoing reasons, I urge this court to grant review
and ultimately reverse the judgment of the Court of Appeal.
Sincerely,
MARTIN KASSMAN
cc:
Parties listed on Proof of Service
Court of Appeal
1. Unfortunately, other examples abound. (See, e.g., Pierre, Free Speech and Satan's Web Page (Dec. 21, 2002) Washington Post <http://www.washingtonpost.com/wp-dyn/articles/A19744-2002Dec20.html> [federal judge holds school officials violated student's free speech rights by suspending him for helping with Web site that included list of "people I wish would die" and exhortations such as "Stab someone for no reason then set them on fire, throw them off of a cliff, watch them suffer and with their last breath, just before everything goes black, spit on their face. Killing people is wrong, don't do It. Unless I am there to watch," but also included disclaimers saying site was just for fun].)
2. I have not reviewed the record. My assertions about the evidence are based on my review of the Court of Appeal's majority and dissenting opinions and of the minor's petition for review.