Issue 103 - September 2020
THE COURT REPORT
Workplace Restraining Order Against Threatening City Council Meeting Attendee Did Not Violate First Amendment
By Daniel P. Barer, Partner, Pollak, Vida & Barer
In City of Los Angeles v. Herman, published August 28, 2020, the Second District Court of Appeal, Division Two affirmed a trial court order issuing a workplace violence restraining order imposed on the defendant under Code of Civil Procedure section 527.8, restraining the defendant’s contact with a deputy city attorney.
Armando Herman regularly attended city council meetings in various cities including
Los Angeles and Pasadena. Over a two-month period in 2019, Herman attended multiple Los Angeles city council meetings. During a city council meeting in April 2019, Herman swore and verbally threatened Los Angeles Deputy City Attorney Strefan Fauble and disclosed Fauble’s home address in Pasadena.
Two weeks later, Herman attended a Pasadena City Council meeting where he submitted speaker cards with drawings of a Ku Klux Klan hood and lightning bolts above Fauble’s name. Herman again disclosed Fauble’s home address accompanied by a drawing of a swastika (Herman’s expressed belief was that Fauble was Jewish), and said loudly and in a threatening manner, “F___ you, Fauble. I’m going back to Pasadena and f__ with you.”
Herman then attended a Los Angeles city council meeting in May 2019 where he was removed for verbally threatening Fauble.
The City of Los Angeles filed a workplace violence restraining order against Herman. The order was tailored to balance the needs of protecting Fauble’s safety with Herman’s First Amendment rights to speak at city meetings. The order precluded Herman from harassing, threatening, contacting, or stalking Fauble, disclosing his residence, or coming within 10 yards of Fauble while attending city council and committee meetings; however, the order allowed the Herman to attend council and committee meetings.
First Amendment Protection
At a hearing, Herman argued that he did not intend to threaten Fauble, but rather make statements about city council rules and his own homelessness. The trial court found substantial evidence that Herman’s statements were threatening, that the threats were credible, that they would have put a reasonable person in fear for his or her safety, and that they were personal.
True threats are not constitutionally protected speech. A true threat is one that a reasonable listener would understand, in context and in light of surrounding circumstances, to constitute a serious expression of an intent to commit an act of unlawful violence rather than an expression of jest or frustration.
Because the trial court reasonably found that the Herman’s statements would place a reasonable person in fear for his safety, the threats fell outside the scope of First Amendment protection. The subjective intent behind the threats is immaterial; the speaker need not actually intend to carry out the threat. Further, most of the prohibitions in the order concern conduct rather than speech; and the portions that do apply to speech are based on specific threatening conduct not protected by the First Amendment.< Back to Full Issue Print Article