This case was cited in what might be a useful advisory to the court from the Jake Baker case.

ADDITIONAL NOTE: The language of section 422 SPECIFICALLY requires that a threat be UNCONDITIONAL. The cult (and perhaps the DA) are claiming the "threat" was part of an extortion scheme of some kind. Extortion through threat is by its intrinsic nature conditional, thus ruling out a prosecution under section 422.

The DA is perfectly well aware of this, and knows his case is bullshit if he knows anything.

http://ic.net/~sberaha/baker.html The only extended discussion of the constitutional dimension of the "true threat" requirement with regard to ¤ 875(c) is found in United States v. Kelner, 534 F.2d 1020 (2d Cir.), cert. denied, 429 U.S. 1022 (1976). In Kelner, the Second Circuit drew on Watts to illuminate the constitutional limits of a prosecution under ¤ 875(c):
The purpose and effect of the Watts constitutionally-limited definition of the term "threat" is to insure that only unequivocal, unconditional and specific expressions of intention immediately to inflict injury may be punished--only such threats, in short, as are of the same nature as those threats which are . .

. "properly punished every day under statutes prohibiting extortion, blackmail and assault without consideration of First Amendment issues." Watts, 402 F.2d at 690.

* * * So long as the threat on its face and in the circumstances in which it is made is so unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and imminent prospect of execution, the statute may properly be applied. This clarification of the scope of 18 U.S.C. ¤ 875(c) is, we trust, consistent with a rational approach to First Amendment construction which provides for governmental authority in instances of inchoate conduct, where a communication has become "so interlocked with violent conduct as to constitute for all practical purposes part of the [proscribed] action itself."

Kelner, 534 F.2d at 1027 (quoting T. Emerson, The System of Freedom of Expression, 329 (1970)). Cf. Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) ("the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.")

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