The state has the burden. We make them carry it.

First Amendment Defense in California

Reviewed by Zak Fisher, Esq. (CA Bar #332712) — Last reviewed May 23, 2026.

The First Amendment is the most underused defense in California criminal practice. Speech, assembly, and expression underlie a long list of statutes the state uses every day: criminal threats, cyberstalking, harassment, failure to disperse, unlawful assembly, disturbing the peace, restraining orders. Each is constrained, sometimes severely, by what the Constitution actually permits the government to punish. A First Amendment defense is not abstract. It is a concrete argument that the conduct charged is protected expression, that the statute is overbroad as applied, or that the prosecution’s theory cannot survive the standards the Supreme Court has set for speech.

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What the First Amendment actually says

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
— U.S. Const. amend. I.

The Fourteenth Amendment applies the First to state action, so California prosecutors, judges, and police are equally bound. California Constitution Article I § 2 provides an independent and often broader guarantee: “Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right.” The California provision has been read by California courts to protect speech the federal First Amendment may not reach.

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What the government can and cannot punish

Speech is presumptively protected. The Supreme Court has identified only a narrow set of categories that fall outside First Amendment protection, and even within those categories, the prosecution carries a real burden to meet the constitutional standard.

True threats

A “true threat” is speech that communicates a serious expression of intent to commit unlawful violence against a particular person or group. The doctrine has been transformed by Counterman v. Colorado, 600 U.S. 66 (2023), which held that the First Amendment requires proof that the speaker had at least a subjective recklessness as to the threatening nature of the communication. An objective standard alone is not enough. Counterman reaches California Penal Code § 422 (criminal threats), cyberstalking under § 646.9, and any other speech-based prosecution where threat is an element.

Incitement

Speech advocating illegal action is protected unless it is “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.” Brandenburg v. Ohio, 395 U.S. 444 (1969). Heated political rhetoric, social media outrage, and protest speech that does not satisfy Brandenburg‘s strict standard cannot be criminalized.

Fighting words

Face-to-face words “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). The doctrine has been narrowed sharply over time. California disturbing-the-peace and disorderly conduct charges based on the words alone are routinely vulnerable.

Obscenity, child pornography, defamation

Each is an unprotected category, and each has a defined constitutional test. Miller v. California, 413 U.S. 15 (1973), for obscenity. New York v. Ferber, 458 U.S. 747 (1982), for child pornography. New York Times v. Sullivan, 376 U.S. 254 (1964), for defamation. Each test is specific. Many statutes that reach into these areas are litigated on whether the test is actually satisfied or whether the law sweeps in protected expression.

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Where First Amendment defenses come up in California cases

Criminal threats — Penal Code § 422

Section 422 punishes a threat to commit a crime that will result in death or great bodily injury, when the threat is made with the specific intent that it be taken as a threat, and on its face and under the circumstances is so unequivocal, unconditional, immediate, and specific as to convey to the person threatened a gravity of purpose and immediate prospect of execution. The statute has always required specific intent. After Counterman, the First Amendment overlays a constitutional minimum: the speaker must have been at least subjectively reckless about whether the words would be understood as a threat. A § 422 prosecution that cannot satisfy Counterman‘s mens rea cannot survive constitutional scrutiny.

Defenses include: the words were conditional or hyperbolic, the surrounding circumstances did not convey immediacy, the alleged victim never reasonably feared, and after Counterman, the prosecution cannot establish the constitutional mens rea.

Cyberstalking and online harassment — Penal Code § 646.9

The same Counterman standard reaches online speech prosecutions. Repeated communications, even hostile or unwanted ones, do not become criminal stalking unless the constitutional threshold is met. Many cyberstalking and harassment prosecutions rest on a body of messages that, read in context, fall well short of true threats. The First Amendment defense is doctrinal and specific.

Protest and assembly

California uses three primary statutes to charge people arrested at protests: Penal Code § 407 (unlawful assembly), § 409 (failure to disperse), and § 415 (disturbing the peace). Each must be applied in a way that does not punish protected speech and assembly. The Ninth Circuit and California courts have held that protest activity, even disruptive activity, is protected unless it crosses into incitement under Brandenburg or actual violence. Vague dispersal orders, blanket arrests, and arrests based on the content of the protest message are recurring constitutional problems.

Recording police

The Ninth Circuit has recognized a First Amendment right to record police officers performing their duties in public, subject to reasonable time, place, and manner restrictions. Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); Askins v. U.S. Dep’t of Homeland Security, 899 F.3d 1035 (9th Cir. 2018). California Penal Code § 148(g) goes further by statute, explicitly providing that the act of recording a public officer in a public place is not, by itself, a violation of obstruction or resisting laws. Arrests that punish recording alone, or that use the recording as the basis for an obstruction charge, raise both constitutional and statutory claims.

Restraining orders that restrict protected speech

California restraining orders frequently include speech-restricting provisions: no posting about the protected party, no communication, no statements to third parties. To the extent those provisions sweep in constitutionally protected expression, they are vulnerable to as-applied challenge. After Counterman, restraining orders predicated on a “threat” theory require the same constitutional mens rea. An RO entered without it, or maintained without it, can be challenged or limited.

Hate crime statutes

The First Amendment draws a hard line. The government cannot criminalize speech because of the viewpoint it expresses. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), struck down a content-based hate-speech ordinance. The government can, however, enhance penalties for crimes committed because of a victim’s protected status. Wisconsin v. Mitchell, 508 U.S. 476 (1993), upheld a sentence enhancement that targeted motive in a violent crime, not speech. California Penal Code § 422.75 follows the Mitchell model. Defense work here is line-drawing: was the prosecution actually punishing expression, or was the speech offered only as evidence of motive in an independent crime?

California shield law for journalists

California Constitution Article I § 2(b) and Evidence Code § 1070 protect journalists from being held in contempt for refusing to disclose unpublished information or the source of news. In criminal cases that touch journalism, the shield law is a frontline defense for the journalist and a litigation issue for any party seeking to compel disclosure.

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As-applied versus facial challenges

Two routes attack a speech-related prosecution.

An as-applied challenge argues that the statute is unconstitutional as applied to this particular defendant’s conduct, regardless of whether the statute could be applied constitutionally to someone else. Most First Amendment defenses in California criminal cases are as-applied.

A facial challenge argues that the statute is invalid in all or substantially all of its applications. Facial challenges typically come in two forms: overbreadth (the statute sweeps in too much protected speech) and vagueness (the statute does not give a person of ordinary intelligence fair notice of what it prohibits). Grayned v. City of Rockford, 408 U.S. 104 (1972). Facial challenges are harder but powerful when they succeed.

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How a First Amendment defense is built

The work is structural. Identify each element of the charge that depends on speech or expression. Identify the constitutional doctrine that limits that element. Build the factual record that shows the doctrine controls.

Practical tools include: demurrer or motion to set aside the information under Penal Code § 995 where the prosecution’s pleading cannot meet the constitutional standard; motion to dismiss under § 1385; motion in limine to exclude speech-based evidence that does not satisfy the constitutional standard for unprotected categories; jury instructions that incorporate Counterman, Brandenburg, and applicable doctrine; and direct appeal where conviction rests on a constitutionally insufficient theory.

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Frequently asked questions

Can I be charged with making criminal threats in California for something I said in anger?

It depends on what was said, in what context, with what intent, and how the person addressed actually understood it. Penal Code § 422 has always required specific intent that the words be taken as a threat. After Counterman v. Colorado, 600 U.S. 66 (2023), the First Amendment also requires that the speaker had at least subjective recklessness about whether the words would be understood as threatening. Heated, hyperbolic, conditional, or context-specific statements often fail one or both standards.

Can I record the police in California?

Yes. The Ninth Circuit recognizes a First Amendment right to record police performing their duties in public, subject to reasonable time, place, and manner restrictions. California Penal Code § 148(g) reinforces this by statute, providing that the act of recording a public officer in a public place is not, by itself, a violation of obstruction laws. Arrests for recording alone are constitutionally and statutorily problematic.

What is the “true threats” doctrine?

“True threats” are statements that communicate a serious expression of intent to commit unlawful violence. Under Counterman v. Colorado (2023), the First Amendment requires the prosecution to prove the speaker was at least subjectively reckless about whether the statement would be understood as threatening. An objective standard alone is not constitutionally sufficient. The doctrine reaches criminal threats, stalking, and harassment prosecutions.

Can I be arrested for protesting in California?

You can be arrested for conduct at a protest that violates a generally applicable law — blocking traffic, trespassing, refusing to disperse after a lawful order, actual violence. You cannot be arrested for protest activity that consists of protected speech and assembly. The line is enforced by the First Amendment and by California’s parallel speech and assembly protections under Article I § 2 and § 3. Many protest arrests are over-broad and challengeable.

Can a restraining order tell me what I am allowed to say?

Restraining orders can prohibit threats, harassment, and unwanted contact, but they cannot constitutionally prohibit protected expression about the protected party to others, or speech on matters of public concern, without satisfying the First Amendment standards that apply to speech restrictions. ROs predicated on alleged threats now have to clear the Counterman mens rea standard. Overbroad ROs are challengeable.

Does California give me more speech protection than the federal First Amendment?

Sometimes, yes. California Constitution Article I § 2 has been read by California courts to provide independent and at times broader protection than the federal floor, particularly in the context of speech in semi-public spaces and journalist protection. Strong defense practice argues both.

Is hate speech illegal in California?

The First Amendment prohibits the government from criminalizing speech because of its viewpoint, even when the viewpoint is hateful. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). The government can, however, enhance penalties for a separate crime committed because of the victim’s protected status. Wisconsin v. Mitchell, 508 U.S. 476 (1993). The line is between punishing speech (impermissible) and punishing conduct with a motive-based enhancement (permissible).

Can the police compel me to take down a social media post?

No. Government action that requires removal of speech is a content-based restriction subject to strict scrutiny under the First Amendment. A criminal investigation does not authorize police to demand takedowns. A court order may issue in limited circumstances, but only after a constitutionally sufficient process.

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Cases and statutes referenced on this page

• Counterman v. Colorado, 600 U.S. 66 (2023) — First Amendment requires subjective recklessness for true threats.
• Brandenburg v. Ohio, 395 U.S. 444 (1969) — incitement requires imminent lawless action.
• Chaplinsky v. New Hampshire, 315 U.S. 568 (1942) — fighting words doctrine.
• Miller v. California, 413 U.S. 15 (1973) — obscenity test.
• New York v. Ferber, 458 U.S. 747 (1982) — child pornography unprotected.
• New York Times v. Sullivan, 376 U.S. 254 (1964) — defamation standard for public figures.
• R.A.V. v. City of St. Paul, 505 U.S. 377 (1992) — content-based hate-speech ordinance unconstitutional.
• Wisconsin v. Mitchell, 508 U.S. 476 (1993) — penalty enhancement for bias-motivated conduct permissible.
• Grayned v. City of Rockford, 408 U.S. 104 (1972) — vagueness and overbreadth doctrines.
• Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995) — right to record police.
• Askins v. U.S. Dep’t of Homeland Security, 899 F.3d 1035 (9th Cir. 2018) — further development of right to record.
• U.S. Const. amend. I.
• Cal. Const. art. I § 2 — free speech and press; journalist shield.
• Cal. Const. art. I § 3 — right to assemble.
• Cal. Penal Code § 422 — criminal threats.
• Cal. Penal Code § 422.75 — hate crime enhancement.
• Cal. Penal Code § 646.9 — stalking.
• Cal. Penal Code § 407 — unlawful assembly.
• Cal. Penal Code § 409 — failure to disperse.
• Cal. Penal Code § 415 — disturbing the peace.
• Cal. Penal Code § 148(g) — right to record police officers.
• Cal. Penal Code § 647(j)(4) — non-consensual intimate image distribution.
• Cal. Evid. Code § 1070 — journalist shield.

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Related constitutional protections

• Constitutional Defense in California (hub)
• Fourth Amendment Defense
• Fourteenth Amendment Defense
• California Constitution Article I Defense

Where this comes up in your case

• Domestic Violence Defense (PC 273.5)
• Restraining Orders Defense
• Misdemeanor Defense
• Felony Defense

The Constitution is the first defense.

Attorney Advertising. Zak Fisher, Esq. — California Bar #332712. This page is for general information about California criminal defense law and is not legal advice for any particular case. Reading this page does not create an attorney-client relationship. Past results do not guarantee future outcomes.