California law doesn't ban threatening gestures

|The Volokh Conspiracy |

A man enters data into a computer in London in 2015. (Chris Ratcliffe/Bloomberg)

So the California Supreme Court held yesterday (People v. Gonzalez), interpreting Cal. Penal Code § 422—a statute that applies to statements "made verbally, in writing, or by means of an electronic communication device." "[M]anually simulat[ing] a pistol pointed upward," the court concluded, wasn't "verbal[]" (and wasn't claimed to be written or electronic). "[W]e need not resolve here whether 'made verbally' requires either the use of words or an oral utterance. Because defendant's conduct here involved neither, we conclude it falls outside the purview of section 422."

The court noted that, "Our conclusion is based on the manner in which the statute is drafted. Should the Legislature choose to include symbolic gestures within the ambit of section 422, it remains free to do so." And indeed, just as symbolic expression is generally tantamount to verbal expression for purposes of constitutional protection, so it could equally be restricted if it falls within a First Amendment exception (such as for true threats of criminal behavior). But given the current text of § 422, I think the court was right to say that California law does not currently cover nonverbal symbolic threats.