People v. Rubin
96 Cal. App. 3d 968, 1979 Cal. App. LEXIS 2139, 158 Cal. Rptr. 488 (1979)
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Rule of Law:
A public statement offering a cash reward for the killing or injury of members of a political group is not constitutionally protected speech under the First Amendment if it is directed to inciting or producing imminent lawless action and is likely to produce such action.
Facts:
- The American Nazi Party planned a demonstration and march to take place in Skokie, Illinois, a community with a large Jewish population, including many Holocaust survivors.
- In response, Irving Rubin, a national director of the Jewish Defense League, held a press conference in Los Angeles on March 16, 1978.
- During the press conference, Rubin held up five $100 bills to announce a counterdemonstration and to protest the Nazi march.
- Rubin stated: 'We are offering five hundred dollars... to any member of the community, be he Gentile or Jewish, who kills, maims, or seriously injures a member of the American Nazi Party.'
- He added that if the person brought the ears of the Nazi party member, the reward would be a thousand dollars.
- Rubin concluded the offer by stating, 'The fact of the matter is, that we’re deadly serious. This is not said in jest, we are deadly serious.'
Procedural Posture:
- A criminal complaint was filed against Irving Rubin.
- Following a preliminary hearing, an information was filed in the superior court (trial court) charging Rubin with solicitation of murder.
- Rubin filed a motion to set aside the information, arguing his statements were protected by the First Amendment.
- The trial court found there was probable cause that the statements constituted solicitation of murder but granted the motion and set aside the information, ruling that the speech was constitutionally protected political hyperbole.
- The People (the prosecution) appealed the trial court's order setting aside the information to the California Court of Appeal.
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Issue:
Does the First Amendment protect as free speech a public offer of a cash reward for the killing, maiming, or serious injury of a member of a political group, made during a press conference to protest a planned demonstration?
Opinions:
Majority - Fleming, J.
No, the First Amendment does not protect such speech. While the First Amendment protects advocacy of the use of force, it does not protect speech that is directed to inciting or producing imminent lawless action and is likely to produce such action. The court reasoned that the line between protected abstract advocacy and unprotected concrete solicitation becomes blurred in the modern media landscape. When a call for political assassination is broadcast to a large, unseen audience, it possesses a greater capacity for disruption than a traditional mob harangue, as it may reach unstable individuals who might literally act on the invitation. Applying the test from Brandenberg v. Ohio, the court found Rubin's speech could qualify as incitement to 'imminent lawless action' because the Nazi march, though five weeks away, was a proximate event in the context of political assassination. Furthermore, the court determined there was a sufficient 'likelihood of producing such action' because broadcasting the reward via respectable news media lent it a degree of credibility, increasing the risk of violence. Therefore, the speech was not protected, and the question of Rubin's specific intent was a matter for a jury to decide at trial, not for the court to decide as a matter of law at this stage.
Dissenting - Roth, P. J.
Yes, the First Amendment does protect this speech. The dissent argues that when viewed in its full context, Rubin's statement was not a 'true solicitation' but rather political hyperbole intended to attract media attention to an explosive national issue. The statement was made to reporters, not a frenzied mob; it concerned an event 2,000 miles away and five weeks in the future; and it was conditioned on being in 'defense of the community.' Citing Watts v. United States, where a threat against the President was found to be protected political speech, the dissent argues that Rubin's language was a 'crude, offensive method of stating a political opposition' rather than a serious incitement to murder. Therefore, the trial court was correct to determine as a matter of law that the speech was constitutionally protected and dismiss the case.
Analysis:
This case is significant for its application of the Brandenburg incitement test to a criminal solicitation charge in the context of mass media. It establishes that a specific offer of reward for violence, even when framed as political speech to the press, can fall outside First Amendment protection. The decision highlights how the medium of communication—in this case, a press conference with the potential for wide dissemination—can increase the 'likelihood' of lawless action, pushing the speech from protected advocacy to unprotected incitement. This precedent is crucial for analyzing cases where political speech on broadcast media or the internet blurs the line between abstract advocacy and a direct call to violence.
