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Personal Foul: Free Speech, Ashley Judd, and Social Media Threats

Twitter Criminal ThreatsThe NCAA men’s basketball tournament didn’t get the nickname “March Madness” just from its tendency to produce shocking results. The nickname also comes from the craziness of the sport’s fans that live and die with every shot, rebound, or bad call against their team.

Such is the case with Ashley Judd. The famed movie actress is one of the most well-known and vocal fans of the University of Kentucky basketball team. During the recent championship game of the Southeastern Conference tournament – which determines which team from the SEC will get an automatic ticket to the NCAA tournament – Judd’s UK Wildcats were in a heated battle with the University of Arkansas Razorbacks. She took to Twitter to vent her frustration at what she thought was dirty play by Arkansas. She ended her tweet with “You can kiss my team’s free throw making ass!”

What followed was more than just the typical trash talk between fans. Judd soon found her timeline filled with every curse word in the book, and she was the target of threats of violence, rape, sexual assault, and sodomy.1

Instead of retreating, Judd – herself a survivor of rape, sexual assault, and incest – decided that it was time to fight back. She is now spearheading an effort to press criminal charges against the persons who sent the threatening messages, including penning a column on Mic.com about the need to change the way women are treated online.2

Criminalizing Social Media Threats

In the age of social media, a celebrity using his or her public goodwill to fight back against Internet “trolls” is nothing new. Recently, Curt Schilling, a former professional baseball player and two-time World Series champion, took it upon himself to expose the identities of two men who sent sexually explicit messages (including some that mentioned rape) directed at his 17-year-old daughter. Schilling’s response got one man fired from his job, and the other expelled from his university.3

What is different here is that Judd is seeking criminal penalties for those who sent the offensive and threatening tweets, highlighting a burgeoning area of criminal law – free speech and social media threats – that the United States Supreme Court has only just begun to tackle. The Court recently heard oral arguments in the case of Elonis v. United States. Elonis posted threatening messages against his ex-wife on Facebook and was convicted under a federal law (18 U.S.C. Section 875) that criminalizes any threat to kidnap or injure another person that is transmitted through any means of interstate or foreign commerce. Elonis is challenging the law on First Amendment grounds.

Criminal Threats (California Penal Code Section 422(a))

Social Media ThreatsWhile the future of that federal law is up in the air, California law already makes these kinds of threats a crime. Under California Penal Code section 422(a), it is a crime to willfully threaten, by written, verbal, or electronic means of communication, to commit a crime that could result in death or great bodily injury to another person. The person making the threat must specifically intend that the communication be taken as a threat, even if the person making the threat has no intention of carrying out the threat.

The threat must be so unequivocal, unconditional, immediate, and specific so as to convey to the threatened person “a gravity of purpose and an immediate prospect of execution of the threat.” The threatened person must reasonably be in a state of sustained fear for his or her own safety, or for the safety of his or her immediate family.

PC 422(a) is a “wobbler,” so it can be charged either as a felony or misdemeanor. When the offense is charged as a misdemeanor, the punishment is up to 364 days in jail. When the offense is charged as a felony, the punishment is up to three years in prison.

Contact the Criminal Defense Attorneys at Wallin & Klarich

If you or someone you love has been charged with making a criminal threat, you will need the help of a skilled and experienced attorney. At Wallin & Klarich, our skilled attorneys have over 30 years of experience successfully defending clients against charges of criminal threats. We know how to construct a defense that will help you achieve the best possible outcome in your case.

With offices located in Los Angeles, Sherman Oaks, Torrance, Orange County, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich criminal defense attorney available to help you no matter where you work or live.

Call us today at (888) 280-6839 for a free, no obligation phone consultation. We will get through this together.


1. [Ashley Judd, “Forget Your Team: Your Online Violence Toward Girls and Women Is What Can Kiss My Ass,” Mic.com, March 19, 2015, available at http://mic.com/articles/113226/forget-your-team-your-online-violence-toward-girls-and-women-is-what-can-kiss-my-ass]
2. [Id.]
3. [Erin O’Neill, “Curt Schilling outs Yankees worker who allegedly posted vulgar tweets about daughter,” NJ.com, March 3, 2015, available at http://www.nj.com/essex/index.ssf/2015/03/curt_schilling_outs_yankees_employee_who_allegedly_posted_sexually-violent_tweets_about_daughter.html.]

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