First Amendment defenses in California misdemeanor cases protect speech, assembly, and expressive conduct from prosecution under statutes that would otherwise punish that activity. They are most often raised in cases charged under Penal Code §415 (disturbing the peace), Penal Code §602 (trespass), Penal Code §148(a)(1) (resisting/delaying/obstructing an officer), Penal Code §422 (criminal threats), Penal Code §647 (disorderly conduct), and Penal Code §594 (vandalism, in graffiti/protest contexts). The Law Office of Zak Fisher represents people charged with speech-related misdemeanors across Los Angeles County for a flat fee, with a free 20-minute consultation for anyone facing a pending charge.
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How the First Amendment functions as a defense in a state criminal case
The First Amendment applies to California state prosecutions through the Fourteenth Amendment’s Due Process Clause. Stromberg v. California, 283 U.S. 359 (1931). When a state statute is applied to constitutionally protected speech or expressive conduct, the prosecution either fails on its merits (because the conduct cannot be punished) or the statute itself is unconstitutional as applied or facially.
In practice, the defense is raised through several procedural vehicles:
- Penal Code §995 motion to dismiss (after a preliminary hearing in felony cases)
- Demurrer under Penal Code §1004 (challenging the complaint as defective)
- Motion to dismiss under Penal Code §1385 in the interests of justice
- Motion in limine to exclude evidence of protected expression
- Jury instruction requests, including CALCRIM 2682 and related instructions that direct the jury to acquit if the speech was constitutionally protected
- Motion for judgment of acquittal under Penal Code §1118.1 at the close of the prosecution’s case
What speech the First Amendment protects
The First Amendment is broadly protective. Courts have repeatedly held that speech and expressive conduct cannot be punished merely because it is offensive, profane, critical of government, or unpopular.
- Political speech is at the core of First Amendment protection. Mills v. Alabama, 384 U.S. 214 (1966).
- Profanity directed at government and officials is protected. Cohen v. California, 403 U.S. 15 (1971) (jacket reading “F*** the Draft” worn in a courthouse was protected speech).
- Criticism of police officers, including verbal challenges and recording officers in public, is protected. City of Houston v. Hill, 482 U.S. 451 (1987); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
- Symbolic conduct such as flag burning, armband wearing, and silent protest is protected. Texas v. Johnson, 491 U.S. 397 (1989); Tinker v. Des Moines, 393 U.S. 503 (1969).
- Hate speech, when not a true threat or incitement to imminent lawless action, is protected. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992).
- Offensive content generally is protected unless it falls into an unprotected category (obscenity, true threats, fighting words, incitement, child sexual abuse material, fraud).
The narrow unprotected categories
The First Amendment does not protect speech falling into a small number of historically recognized unprotected categories. Each is narrowly defined:
- Fighting words: Personally abusive epithets 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 category has been narrowed dramatically since 1942. Profanity, criticism, and offensive comments are not fighting words.
- True threats: A serious expression of intent to commit an act of unlawful violence to a particular individual or group. Recklessness as to the threatening nature is the minimum mental state. Counterman v. Colorado, 600 U.S. 66 (2023). Mere hyperbole, “trash talk,” and political rhetoric are not true threats.
- Incitement to imminent lawless action: Speech directed at producing imminent lawless action and likely to produce such action. Brandenburg v. Ohio, 395 U.S. 444 (1969). Abstract advocacy of unlawful conduct is protected.
- Obscenity: Material that, taken as a whole, appeals to the prurient interest in sex; portrays sexual conduct in a patently offensive way; and lacks serious literary, artistic, political, or scientific value. Miller v. California, 413 U.S. 15 (1973).
If the speech does not fall into one of these categories, it is protected, and a prosecution that depends on the speech itself cannot stand.
How the defense applies to common LA County charges
Penal Code §415 (disturbing the peace)
Subsection (2) (unreasonable noise) has been narrowed by In re Brown, 9 Cal.3d 612 (1973), so it can only punish noise without communicative content or not intended as communication. Subsection (3) (offensive words) is limited to true fighting words. Loud speech at a protest, verbal criticism of police, and profanity in public are not punishable under §415.
Penal Code §148(a)(1) (resisting, delaying, or obstructing)
Speech alone, including verbal protest, refusing to answer questions, and recording officers, cannot support a §148 conviction. The defendant must actually resist, delay, or obstruct a lawful exercise of duty. Mackinney v. Nielsen, 69 F.3d 1002 (9th Cir. 1995). Many §148 charges depend on speech and are vulnerable to First Amendment challenges.
Penal Code §422 (criminal threats)
The state must prove a “true threat” under Counterman, plus the statutory elements: a willful threat to commit a crime resulting in death or great bodily injury, with specific intent that the statement be taken as a threat, made under circumstances conveying immediacy, causing sustained fear that is reasonable. Hyperbole, political rhetoric, and unrealistic threats are not §422 violations.
Penal Code §602 (trespass)
Protest activity on public property, on traditional public forums, or with permission, is protected. Trespass statutes cannot be used to remove peaceful protesters from places where they have a right to be. Hague v. CIO, 307 U.S. 496 (1939).
Penal Code §594 (vandalism in graffiti/protest cases)
While property damage is not protected, the underlying expressive message and the prosecutor’s selective enforcement based on message content can raise First Amendment issues, particularly where charging decisions appear viewpoint-discriminatory.
Recording the police
California Penal Code §148(g) expressly provides that the act of photographing or recording an officer carrying out official duties, by a person who is in a place that person has a right to be, does not constitute a violation of §148. This is consistent with the federal circuits that have recognized a First Amendment right to record police. Fordyce v. City of Seattle, 55 F.3d 436 (9th Cir. 1995); Smith v. City of Cumming, 212 F.3d 1332 (11th Cir. 2000).
Protests and assembly in Los Angeles
Peaceful assembly in traditional public forums (streets, sidewalks, parks) is protected, subject to reasonable time, place, and manner restrictions that are content-neutral and narrowly tailored. Ward v. Rock Against Racism, 491 U.S. 781 (1989). LAPD and LASD declarations of “unlawful assembly” under Penal Code §409 are reviewable, and arrests made without adequate dispersal orders or after protected activity has occurred can be challenged.
How the Law Office of Zak Fisher handles First Amendment cases
Each case begins with a free 20-minute consultation to identify the protected activity, the charging statute, and the prosecution’s theory. If the case is taken, the fee is flat and quoted in writing before engagement. Early steps include obtaining all bodycam, dashcam, and protest-line video; identifying the specific words or conduct charged; and assessing whether to bring a demurrer under PC §1004, a motion to dismiss under PC §1385, or a §1538.5 motion to suppress evidence obtained through an unlawful detention. The practice personally appears at every court date and answers texts and emails within one business day.
Contact
Law Office of Zak Fisher
8335 W. Sunset Blvd., Suite 354
West Hollywood, CA 90069
Phone: (310) 818-7461
Email: info@zakfisherlaw.com
Hours: Monday through Thursday 10:00 AM to 4:30 PM, Friday 10:00 AM to 4:00 PM
Book a free 20-minute consultation
Frequently asked questions about First Amendment defenses
Can I be arrested for cursing at a police officer in California?
You can be arrested (officers regularly do arrest in these situations), but the resulting charge usually does not survive a First Amendment defense. City of Houston v. Hill, 482 U.S. 451 (1987), holds that the First Amendment protects “a significant amount of verbal criticism and challenge directed at police officers.” Profanity alone is not a crime in California.
Is hate speech a crime in California?
Pure hate speech, without more, is constitutionally protected. R.A.V. v. City of St. Paul, 505 U.S. 377 (1992). California has hate crime sentencing enhancements (Penal Code §422.75) that apply to crimes committed because of bias, but the underlying speech alone is not criminal. True threats, harassment, and criminal threats remain prosecutable when the elements are met.
Can I record the police in California?
Yes. Penal Code §148(g) expressly allows recording an officer carrying out official duties so long as the recorder is in a place they have a right to be. Federal case law recognizes the same First Amendment right.
Can a protest be charged as disturbing the peace?
Only in narrow circumstances. Peaceful assembly and protest in public forums are constitutionally protected. PC §415 has been narrowed by case law to exclude protected speech and assembly. Loud chanting and political speech are not “unreasonable noise” under §415(2) as construed in In re Brown.
What is a “true threat” under Penal Code §422?
Under Counterman v. Colorado, 600 U.S. 66 (2023), the state must prove the defendant was at least reckless about the threatening nature of the statement. The threat must be a serious expression of intent to commit unlawful violence against a particular person or group, taken in context. Hyperbole, jokes, and political rhetoric do not qualify.
Can I be charged for what I posted online?
Online speech is protected to the same extent as offline speech. Packingham v. North Carolina, 582 U.S. 98 (2017). Posts can support charges like criminal threats (PC §422), stalking (PC §646.9), or harassment (PC §653m) only if the statutory elements are met, including a true-threat showing for §422.
Does the First Amendment protect symbolic conduct like flag burning?
Yes. Texas v. Johnson, 491 U.S. 397 (1989), holds that flag burning is expressive conduct protected by the First Amendment. Other symbolic conduct, like wearing armbands or silent protest, is similarly protected.
Can the prosecutor use my speech as evidence at trial?
Protected speech generally cannot be the basis for a conviction. Whether speech is admissible as evidence of motive, intent, or identity is a separate question controlled by Evidence Code §352 balancing and the First Amendment overbreadth doctrine. A motion in limine can exclude protected expression from the jury.
Can I sue if I was arrested for protected speech?
Possibly, under 42 U.S.C. §1983 for a First Amendment violation and false arrest, and under California Civil Code §52.1 (Bane Act). These are civil claims separate from the criminal defense, with their own filing deadlines.
What is the “fighting words” doctrine?
Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), recognized a narrow category of personally abusive epithets, addressed face-to-face, that by their utterance tend to incite immediate violence. The category has been narrowed since then. Most insults, including profanity, criticism, and offensive comments, are not fighting words.