Thunder Studios, Inc. v. Charif Kazal

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THUNDER STUDIOS, INC.; RODRIC No. 19-55413
DAVID,
Plaintiffs-Appellees, D.C. No.
2:17-cv-00871-
v. AB-SS
CHARIF KAZAL; TONY KAZAL;
ADAM KAZAL, OPINION
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
André Birotte, Jr., District Judge, Presiding
Argued and Submitted June 3, 2020
Pasadena, California
Filed September 15, 2021
Before: William A. Fletcher and Kenneth K. Lee, Circuit
Judges, and Carol Bagley Amon,* District Judge.
Opinion by Judge W. Fletcher;
Dissent by Judge Lee
*
The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
2 THUNDER STUDIOS V. KAZAL
SUMMARY**
First Amendment
Reversing the district court’s judgment, after a jury trial,
in favor of defendants on a claim of stalking under Cal. Civ.
Code § 1708.7, and remanding, the panel held that two
defendants’ speech and speech-related conduct were
protected under the First Amendment and were therefore
excluded from the California stalking statute as
“constitutionally protected activity.”
The panel held that under California law, a defendant
commits the tort of stalking by “engag[ing] in a pattern of
conduct the intent of which was to follow, alarm, place under
surveillance, or harass the plaintiff.” The stalking statute
excludes “[c]onstitutionally protected activity” from the
definition of a “pattern of conduct.”
The panel held that the First Amendment applied to the
speech and speech-related conduct of defendants Tarek
(“Tony”) and Adam Kazal, who were outside the United
States at all relevant times, because their speech and speech-
related conduct were directed at and received by California
residents. Defendants hired protestors, organized leafletting,
hired a van to drive around Los Angeles with a message on its
side, and published emails online to make the public aware of
their views of plaintiff’s business practices.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
THUNDER STUDIOS V. KAZAL 3
The panel held that defendants’ conduct did not constitute
a “true threat” and therefore was protected under the First
Amendment. The panel held that under an objective test,
speech is a true threat if a reasonable person would foresee
that the statement would be interpreted by those to whom the
maker communicates the statement as a serious expression of
intent to harm or assault. The panel stated that a subjective
test, requiring that the defendant subjectively intended to
threaten, applies in criminal cases. The panel wrote that it
need not decide whether a true threat in civil cases requires
both an objective threat and a subjective intent to threaten
because Tony and Adam Kazal’s speech did not satisfy either
test.
Dissenting, Judge Lee wrote that he largely agreed with
the majority’s opinion. Judge Lee wrote, however, that he
does not believe that the First Amendment—under its original
public meaning—extends to foreigners, such as defendants,
who lack substantial voluntary connection to the United
States.
COUNSEL
Hyland Hunt (argued) and Ruthanne M. Deutsch, Deutsch
Hunt PLLC, Washington, D.C.; Benjamin Taylor, Law
Offices of Benjamin Taylor APC, Los Angeles, California;
for Defendants-Appellants.
Caleb E. Mason (argued), Werksman Jackson & Quinn LLP,
Los Angeles, California; Seth W. Wiener, Law Offices of
Seth W. Wiener, San Ramon, California; for Plaintiffs-
Appellees.
4 THUNDER STUDIOS V. KAZAL
Eugene Volokh, UCLA First Amendment Clinic, UCLA
School of Law, Los Angeles, California, for Amicus Curiae
Pennsylvania Center for the First Amendment.
OPINION
W. FLETCHER, Circuit Judge:
After a business deal soured, Charif, Tarek (“Tony”), and
Adam Kazal embarked on an international campaign to tell
their side of the story, informing the public of the alleged
“despicable crimes” committed by Rodric David, the
erstwhile partner of Charif and Tony. The campaign
culminated in Los Angeles, where David resides and runs a
production company, Thunder Studios, Inc. The Kazals sent
hundreds of emails to David and his employees, hired
protestors to picket and distribute flyers near David’s
residence and business, and hired vans emblazoned with their
message to drive around Los Angeles. David embarked on
his own media campaign, accusing the Kazals of being
money launderers with ties to Hezbollah.
David and Thunder Studios brought suit against Charif,
Tony, and Adam Kazal in federal district court in Los
Angeles. A jury found that Tony and Adam committed the
tort of stalking under California Civil Code § 1708.7. It
awarded David $100,000 in compensatory damages and
$1 million in punitive damages against each of them.
Because we conclude that Tony and Adam’s speech and
speech-related conduct were protected under the First
Amendment and were therefore excluded from the California
stalking statute as “constitutionally protected activity,” we
reverse.
THUNDER STUDIOS V. KAZAL 5
I. Factual Background
Three brothers, Charif, Tony, and Adam Kazal, are
Australian citizens who reside in Australia. Rodric David is
an Australian citizen who currently resides in Los Angeles.
The story begins with a business deal that went bad. In
2008, Charif and Tony Kazal, together with David, founded
Emergent Capital, a private equity group headquartered in
the United Arab Emirates (“UAE”) and incorporated in the
Cayman Islands. They planned to build a massive housing
development in the UAE desert. David moved from Australia
to Abu Dhabi to oversee the project. Emergent Capital also
purchased a waste recycling business in Australia called
Global Renewables. In the wake of the global financial crisis
in 2008, the housing development project fell through.
Contending that Charif and Tony had not put the funding into
the project that they had promised, David convened a board
meeting at which the board converted David’s debt to equity
and diluted the Kazals’ 50% stake in the company to 0.1%.
Charif and Tony responded by filing an embezzlement
complaint against David and falsely alleging that he had
violated his visa, resulting in David’s detention in a UAE jail
for two days. In litigation in the Cayman Islands, David’s
restructuring of the company was reversed in part, and the
assets were liquidated. The net return to shareholders was
about $25 million, of which Charif and Tony received
$1.9 million. A few years later, a private equity company
purchased a 50% stake in Global Renewables for $85 million.
David and his family moved back to Australia in 2010.
According to evidence presented at trial in the district court,
the Kazals were investigated by the Independent Commission
Against Corruption for the Australian state of New South
6 THUNDER STUDIOS V. KAZAL
Wales. Charif Kazal testified that David triggered the
investigation by providing misleading information to the
Sydney Morning Herald. David testified that, on one
occasion in 2011, a man in a car followed his wife. When
David confronted him, the man grabbed David’s phone and
sped down the block with David on the hood, holding onto a
windshield wiper. David testified that it was his
“understanding” that the man was employed by Tony Kazal.
David’s wife testified that “two of the Kazal brothers”
followed David and a business associate and “sw[ung]
something in a threatening manner.” She testified further that
in 2013, Adam Kazal, the brother who had not been party to
the business deal, “accosted” or “assault[ed]” (using the
words interchangeably) David’s father in downtown Sydney.
David testified that his father had been “assaulted repeatedly”
by Adam, and that his father had obtained a New South
Wales police order against him.
In early 2012, David moved with his family to the
United States. He settled in Los Angeles, where he founded
Thunder Studios. In about 2015, Charif and Tony Kazal
began sending emails to David and Thunder Studios
employees, demanding that David right his alleged wrongs.
A representative excerpt of one of Tony’s emails reads:
We are not going away and look very much
forward to the ongoing opportunities to deal
with you in Court where your Sydney
Morning Herald security blanket can’t help
you.
. . . I will not rest until you repay what you
stole plus damages, apologise publicly for the
lies you told and serve time in prison for the
THUNDER STUDIOS V. KAZAL 7
despicable crimes you committed against me
and my entire family!
Charif established a website to publish these emails online.
Matthew Price, an employee of Thunder Studios, then
created several websites accusing the Kazal family of money
laundering and other crimes, claiming that the Kazals were
affiliated with the terrorist organization Hezbollah. The
websites included pictures of the brothers with the text
“Support Hezbollah” added above them. Immediately below
was a picture of Libyan leader Muammar Qaddafi.
In October 2016, Tony and Adam Kazal hired Mark
Woodward, a private investigator in Los Angeles, to
“conduct[] covert surveillance” of David’s house and his
movements to “establish patterns.” The Kazals then had
Woodward procure a van, adorn it with a large sign about
David’s alleged misdeeds, and have his business partner drive
it around town. The Kazals also hired protestors to distribute
flyers denouncing David and to picket near David’s house
and Thunder Studios, chanting slogans like “Rodric the
Robber.” David’s wife testified that the protesters were
250 meters away and not visible from the house. The flyers
and signs included a picture of David and denounced him as
a “corporate thief” and “fraudster” who “robbed his business
partners of $180 million.” They also warned readers “don’t
be his next victim” and advised them to “read the full story”
on the Kazals’ website. David’s wife testified that she called
the Los Angeles Police Department. On arrival at the scene,
officers explained to her that people have “a right of protest
and a right of free speech.” There were additional protests on
several days in November, both in David’s neighborhood and
near Thunder Studios. David testified that, as an employee
8 THUNDER STUDIOS V. KAZAL
drove into the main entrance of Thunder Studios, “her car
was hit and [protesters] were yelling profanities at her.”
On October 27, 2016, Adam Kazal sent an email to
David, with copies to several Thunder Studios employees,
stating, “My team in LA are going to expose you wherever
you go until you are charged with your crimes.” It continued:
Getting your hyena [David’s wife] to scream
at the LA Police like she did yesterday
exposing how the disgustingly racist elements
of your family are not restricted just to your
Syrian David blood is not going to stop me
and my crew!!
I will show the good people of LA what scum
they have allowed into their city that Australia
is glad to be rid of. Let’s see how you like
having the truth of what you get up to
reported for the world to see your true
colours.
...
You start a fight with me, I will show you
how Adam Kazal is different to the rest of the
family.
See you around grub.
Adam also published a screenshot of this email with a tweet
stating, “hey @Rodric_David my team in LA are going to
expose you wherever you go! - Day 1 . . . @Thunder_Inc.”
THUNDER STUDIOS V. KAZAL 9
At about this time, David’s attorney sent Adam Kazal a
cease and desist letter. Adam responded by email, stating that
unless David paid his “Legal & Marketing, Pain &
Disruption” costs of $666,666.66 and issued a public apology
by 4:00 pm the next day, “I reserve the right to not only
continue using the Van, but to also increase the size of my
fleet.” He continued, “If you fail to meet my demands . . .
then I reserve the right to do whatever is necessary to expose
the Corporate Fraudster[] Rodric David . . . who stole
$180 million from my family[.]”
So far as the record reveals, other than the conduct just
described, the Kazals have few ties with the United States.
II. Procedural Background
In February 2017, David and Thunder Studios filed suit
against Charif, Tony, and Adam Kazal in federal district
court. In Count One of the second amended complaint, they
alleged that the Kazals intentionally used photographs
copyrighted by Thunder Studios. In Count Two, they alleged
that the Kazals’ conduct constituted stalking under California
Civil Code § 1708.7.
The case was tried to a jury in December 2018. During
jury deliberations, the Kazals moved for judgment as a matter
of law under Federal Rule of Civil Procedure 50(a) on both
Counts. The district court denied the motion. On Count One,
the jury returned a verdict for Thunder Studios for $2,600 in
statutory damages against Charif Kazal for copyright
infringement. The jury awarded nothing against Tony and
Adam Kazal. On Count Two, the jury awarded Rodric David
$100,000 in compensatory damages and $1,000,000 in
punitive damages on the stalking claim against Tony, and the
10 THUNDER STUDIOS V. KAZAL
same amounts separately against Adam. The jury awarded
nothing against Charif.
Tony and Adam Kazal made a renewed motion for
judgment as a matter of law. See Fed. R. Civ. P. 50(b). The
district court denied the motion, concluding that “a
reasonable jury could perceive Defendants’ actions as
threats” and therefore unprotected by the First Amendment.
Because their actions were unprotected by the First
Amendment, they came within the coverage of California’s
stalking statute. It also denied their motions for a new trial
and for remittitur.
Tony and Adam Kazal timely appealed the judgment on
Count Two.
III. Standard of Review
In First Amendment cases, we “‘make an independent
examination of the whole record’ in order to make sure that
‘the judgment does not constitute a forbidden intrusion on the
field of free expression.’” Bose Corp. v. Consumers Union of
United States, Inc., 466 U.S. 485, 499 (1984) (quoting New
York Times Co. v. Sullivan, 376 U.S. 254, 284–86 (1964)).
Therefore, we review constitutional facts de novo, including
whether speech constitutes a “true threat” and is therefore
unprotected by the First Amendment. Planned Parenthood
of Columbia/Willamette, Inc. v. Am. Coal. of Life Activists,
290 F.3d 1058, 1069–70 (9th Cir. 2002) (en banc). However,
we “construe the historical facts, the findings on the statutory
elements, and all credibility determinations in favor of the
prevailing party.” Id. at 1070.
THUNDER STUDIOS V. KAZAL 11
IV. Discussion
Under California law, a defendant commits the tort of
stalking by “engag[ing] in a pattern of conduct the intent of
which was to follow, alarm, place under surveillance, or
harass the plaintiff.” Cal. Civ. Code § 1708.7(a)(1). The
pattern of conduct must lead the plaintiff either to
“reasonably fear[]” for his own safety or that of an immediate
family member, or to “suffer substantial emotional distress”
when a reasonable person would also suffer substantial
emotional distress. Id. § 1708.7(a)(2)(A), (B); see also id.
§ 1708.7(a)(3) (articulating additional elements that must be
satisfied). The statute proscribes only conduct occurring in
California. See Diamond Multimedia Sys., Inc. v. Superior
Ct., 968 P.2d 539, 554 n.20 (Cal. 1999) (the determinative
factor in California’s presumption against extraterritoriality
is the location of the conduct).
The stalking statute excludes “[c]onstitutionally protected
activity” from the definition of “pattern of conduct.” Cal.
Civ. Code § 1708.7(b)(1); see also id. § 1708.7(f) (“This
section shall not be construed to impair any constitutionally
protected activity, including, but not limited to, speech,
protest, and assembly.”). The question before us is whether
Tony and Adam Kazal’s conduct was protected by the First
Amendment and thus excluded from coverage under the
statute.1
1
The statute also excludes from liability Woodward’s covert
surveillance activities, prior to his activity involving the van with the
message about David’s alleged misdeeds. The statutory definitions of
“follow” and “place under surveillance” exclude “any lawful activity of
private investigators licensed pursuant to Article 3 (commencing with
Section 7520) of Chapter 11.3 of Division 3 of the Business and
Professions Code.” See Cal. Civ. Code § 1708.7(b)(4), (b)(6). The
12 THUNDER STUDIOS V. KAZAL
A. Applicability of the First Amendment
A threshold question is whether the First Amendment
applies to the Kazals’ conduct. So far as the record shows,
Tony and Adam were outside the United States at all relevant
times. However, the recipients of their speech and speech-
related conduct were in California.
The First Amendment protects speech for the sake of both
the speaker and the recipient. The Supreme Court wrote in
1968, “It is now well established that the Constitution
protects the right to receive information and ideas. This right
to receive information and ideas, regardless of their social
worth, is fundamental to our free society.” Stanley v.
Georgia, 394 U.S. 557, 564 (1969) (citations omitted); see
also Va. State Bd. of Pharmacy v. Va. Citizens Consumer
Council, Inc., 425 U.S. 748, 756 (1976) (“[W]here a speaker
exists . . . the [First Amendment] protection afforded is to the
communication, to its source and to its recipients both.”
(citation omitted)); Martin v. City of Struthers, 319 U.S. 141,
143 (1943) (freedom of speech “embraces the right to
distribute literature and necessarily protects the right to
receive it” (citation omitted)).
Absent national security concerns not present in this case,
the First Amendment right to receive information includes the
Business and Professions Code defines private investigator activities to
include “any investigation for the purpose of obtaining[] information with
reference to . . . the . . . habits, conduct, . . . activity, [and] movement . . .
of any person.” Cal. Bus. & Prof. Code § 7521(b). Woodward’s activities
are excluded because he is a licensed private investigator, and he testified
that the purpose of his surveillance was to obtain information on David’s
conduct and movements. This argument was preserved when the Kazals
pressed it in their motion for judgment as a matter of law.
THUNDER STUDIOS V. KAZAL 13
right to receive information from outside the United States.
In Lamont v. Postmaster General, 381 U.S. 301, 302 (1965),
the Court struck down a federal statute ordering the
Postmaster General to seize “communist political
propaganda” that was “printed or otherwise prepared in a
foreign country.” The Court explained that the government
could not constitutionally “control the flow of ideas to the
public.” Id. at 306. In Kleindienst v. Mandel, 408 U.S. 753(1972), the Court recognized the First Amendment right of
domestic listeners to receive speech from foreign speakers.
However, the Court held that Congress’s plenary power over
immigration permitted the government to exclude a foreign
speaker from the United States on the ground that on a
previous visit “he had engaged in activities beyond the stated
purposes” of his visit. Id. at 758. In one of the most famous
obscenity cases in our history, the district court declared
James Joyce’s Ulysses not obscene and allowed its
importation into the United States without any inquiry as to
Joyce’s contacts with the United States. United States v. One
Book Called “Ulysses”, 5 F. Supp. 182 (S.D.N.Y. 1933),
aff’d, 72 F.2d 705 (2d Cir. 1934).
We therefore hold that the First Amendment applies to
Tony and Adam Kazals’ speech and speech-related conduct
at issue in this case.
Plaintiffs disagree with this conclusion, but provide scant
support for their conclusion. Citing four cases, they contend,
“As foreign non-residents, living outside the United States,
with no connection or allegiance to the United States, they
cannot claim the protections of the First Amendment.” None
of the four cases support Plaintiffs’ contention, as they either
do not involve speech at all or involve speech outside the
United States.
14 THUNDER STUDIOS V. KAZAL
Plaintiffs primarily rely on United States v. Verdugo-
Urquidez, 494 U.S. 259 (1990), arguing that the Kazals “do
not clear the Verdugo-Urquidez bar.” Verdugo-Urquidez was
a Fourth Amendment case in which a citizen and resident of
Mexico challenged a search and seizure search of his property
in Mexico. Speech was not at issue, and the only action at
issue occurred outside the United States. Plaintiffs also rely
on DKT Mem’l Fund Ltd. v. Agency for Int’l Dev., 887 F.2d
275 (D.C. Cir. 1989) as “[t]he other leading case.” DKT
Memorial Fund involved a challenge to a federal statute that
forbade giving federally financed family planning grants to
organizations that “actively promote abortions in other
nations.” Id. at 277. Because the speech at issue in DKT
Memorial Fund was “in other nations,” it did not involve a
right to receive information in the United States. (For the
same reason, Plaintiffs cannot rely on the Supreme Court’s
recent opinion holding that the government may restrict the
speech of “foreign organizations operating abroad.” Agency
for Int’l Dev. v. All. for Open Soc’y Int’l, Inc., 140 S. Ct.
2082, 2087 (2020).) Finally, Plaintiffs rely on Humanitarian
Law Project v. Reno, 205 F.3d 1130 (9th Cir. 2000), which
involved a prohibition against donating funds to terrorist
organizations outside the United States, and on Ibrahim v.
Dep’t of Homeland Security, 669 F.3d 983 (9th Cir. 2012),
which involved freedom of association rather than speech.
We hold that the Kazals’ speech and speech-related
activity—directed at and received by California residents—
are excluded from the statute as protected under the First
Amendment. We need not, and do not, here consider under
what other circumstances a noncitizen living abroad has
standing to claim the protections of the First Amendment.
THUNDER STUDIOS V. KAZAL 15
B. The Kazals’ Speech and Speech-Related Conduct
The district court found that a reasonable jury could
conclude that Tony and Adam Kazals’ speech and speech-
related conduct were a “true threat” and therefore not
protected by the First Amendment. On independent review
of the constitutional facts, we conclude that their conduct did
not constitute a true threat. We therefore conclude that the
Kazals’ conduct was protected under the First Amendment
and was “[c]onstitutionally protected activity” excluded from
coverage under California’s stalking statute. Cal. Civ. Code
§ 1708.7(b)(1).
Setting aside its content for a moment, speech and speech-
related conduct like that of the Kazals are ordinarily
protected. The Kazals hired protestors, organized leafletting,
hired a van to drive around Los Angeles with a message on its
side, and published emails online to “openly and vigorously
[] mak[e] the public aware” of their views of David’s
business practices. Org. for a Better Austin v. Keefe, 402
U.S. 415, 419 (1971).
The protections of the First Amendment are “nowhere
stronger than in streets and parks,” which are traditional
public fora. Berger v. City of Seattle, 569 F.3d 1029,
1035–36 (9th Cir. 2009) (en banc). While a few isolated
parts of the protest were non-speech conduct—such as when
a protestor banged on the car of one of David’s employees—
this does not change the overall analysis. See NAACP v.
Claiborne Hardware Co., 458 U.S. 886, 902, 933 (1982)
(noting that “violent conduct is beyond the pale of
constitutional protection” but the “ephemeral consequences
of relatively few violent acts” do not render a protest
unprotected).
16 THUNDER STUDIOS V. KAZAL
In general, emails and tweets, when published on the
“vast democratic forums of the Internet,” fall squarely within
the protection of the First Amendment. Packingham v. North
Carolina, 137 S. Ct. 1730, 1735 (2017) (citation omitted); see
also Reno v. Am. Civ. Liberties Union, 521 U.S. 844, 851
(1997) (noting that an email is protected as “generally akin to
a note or letter”). At some point, however, repeated
unwanted communications can lose First Amendment
protection. See Rowan v. U.S. Post Off. Dep’t, 397 U.S. 728,
736 (1970) (stating that “the right of every person ‘to be let
alone’ must be placed in the scales with the right of others to
communicate”); see also Consol. Edison Co. of N.Y. v. Pub.
Serv. Comm’n of N.Y., 447 U.S. 530, 542 & n.11 (1980)
(noting that privacy interests are weaker where the recipient
can easily “escape exposure” by discarding the
communication). The record does not show that David ever
asked the Kazals to stop sending the emails. Though David
eventually configured a firewall to block his employees from
receiving the emails, he did not block them from his own
email inbox, preferring to preserve them for purposes of
litigation. David testified that he did not read most of them.
Under these circumstances, the emails come within the
general protection of the First Amendment.
Though much of the Kazals’ speech was intemperate and
rancorous, including a reference to David’s wife as “your
hyena,” the First Amendment right to receive information
exists “regardless of [its] social worth.” Stanley, 394 U.S. at
564; accord Brown v. Ent. Merchs. Ass’n, 564 U.S. 786, 796
n.4 (2011) (“Crudely violent video games, tawdry TV shows,
and cheap novels and magazines are no less forms of speech
than The Divine Comedy.”). However, speech is not
protected if its content rises to the level of a “true threat.”
See Watts v. United States, 394 U.S. 705, 708 (1969) (per
THUNDER STUDIOS V. KAZAL 17
curiam). True threats are “statements where the speaker
means to communicate a serious expression of an intent to
commit an act of unlawful violence to a particular individual
or group of individuals,” though the speaker “need not
actually intend to carry out the threat.” Virginia v. Black,
538 U.S. 343, 359–60 (2003).
In determining whether speech is a true threat, we
consider “the surrounding events and reaction of the
listeners.” Planned Parenthood, 290 F.3d at 1075 (quoting
United States v. Orozco-Santillan, 903 F.2d 1262, 1265 (9th
Cir. 1990)). Even a statement that appears to threaten
violence may not be a true threat if the context indicates that
it only expressed political opposition or was emotionally
charged rhetoric. See Watts, 394 U.S. at 706–08 (statement
“[i]f they ever make me carry a rifle the first man I want to
get in my sights is L.B.J.” at a rally is protected); Claiborne
Hardware Co., 458 U.S. at 902, 928 (statement “[i]f we catch
any of you going in any of them racist stores, we’re gonna
break your damn neck” at a rally is protected as “emotionally
charged rhetoric”). Conversely, a statement that does not
explicitly threaten violence may be a true threat where a
speaker makes a statement against a known background of
targeted violence. See Black, 538 U.S. at 360 (because of its
history as a white-supremacist symbol, burning a cross is
“often” a true threat); Planned Parenthood, 290 F.3d
at 1085–86 (“Wanted” posters targeting doctors who
performed abortions were true threats because both the
speakers and the audience knew that the doctors in prior
“Wanted” posters had been murdered).
Cases in this circuit have long employed an objective test
for determining when speech is a “true threat.” See Roy v.
United States, 416 F.2d 874, 878 (9th Cir. 1969). Under this
18 THUNDER STUDIOS V. KAZAL
test, we asked only “whether a reasonable person would
foresee that the statement would be interpreted by those to
whom the maker communicates the statement as a serious
expression of intent to harm or assault.” Planned
Parenthood, 290 F.3d at 1074 (quoting Orozco-Santillan,
903 F.2d at 1265). But we interpreted the Supreme Court’s
above-quoted dictum in Black, which concerned criminal
prosecutions for cross-burning, to overrule that precedent in
criminal cases. See United States v. Cassel, 408 F.3d 622,
631 (9th Cir. 2005) (noting that Black defined true threats as
when a speaker “means to communicate” serious intent). To
uphold a conviction under any “threat statute that
criminalize[s] pure speech,” we require that the defendant
subjectively intended to threaten. United States v.
Bagdasarian, 652 F.3d 1113, 1117 (9th Cir. 2011). With
respect to some (but not all) criminal statutes, we also require
that the threat meet the objective standard. Id.We have not yet determined whether the subjective test in
Black applies in civil cases, or whether the objective test
remains the sole test. In Wynar v. Douglas County School
District, 728 F.3d 1062, 1070 & n.7 (9th Cir. 2013), we held
that it did not matter for First Amendment purposes whether
a student’s repeated statements about planning a school
shooting were true threats; the district was justified in
suspending and expelling him whether they were or not. In
Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008), we held that,
under either the objective or subjective test, police officers
violated the First Amendment when they arrested Matthew
Fogel and impounded his van because of his speech. We held
that Fogel believed—as would any reasonable speaker—that
his van with a huge sign stating (among other things) that he
was a “SUICIDE BOMBER COMMUNIST TERRORIST”
would be interpreted only as an “obviously satiric or
THUNDER STUDIOS V. KAZAL 19
hyperbolic political message.” Id. at 827, 831. As in Fogel,
we need not decide here whether a true threat in civil cases
requires both an objective threat and a subjective intent to
threaten because Tony and Adam Kazal’s speech does not
satisfy either test.
The protests Tony organized in Los Angeles alerted the
public to David’s alleged misdeeds and encouraged people to
“read the full story” on the Kazals’ website. A reasonable
speaker could not conclude that David would understand
these communications to threaten anything more than a
continuation of this campaign to provide their side of the
story. Nor is there any evidence that Tony subjectively
intended to threaten violence. Tony wrote in an email to his
investigator that he intended to “screw with” David. In
context, this did not show an “intent to commit an act of
unlawful violence.” Black, 538 U.S. at 359. While Tony’s
emails to David included rude language, they focused on
“highlight[ing] the many crimes committed by [David],”
including through “ongoing opportunities to deal with
[David] in Court.”
While events in the UAE and Australia cannot be part of
a “pattern of conduct” under California law, they can provide
context to assess whether the conduct in California was a
“true threat.” The context provided by these events does not
elevate Tony Kazal’s conduct to the level of a true threat.
Tony’s prior activity in the UAE and Australia largely
consisted of angry emails, spurious embezzlement and
immigration charges, and years of litigation. The man who
stole David’s cell phone and drove away with David on the
hood of his car in Australia was not identified; David testified
only that it was his “understanding” that the man was
employed by Tony. David’s wife’s testimony that “two of
20 THUNDER STUDIOS V. KAZAL
the Kazal brothers” followed David and a business associate
in Sydney and “sw[ung] something in a threatening manner”
is vague and unsubstantiated.
Both the objective and subjective tests yield the same
conclusion: Tony’s conduct did not constitute a “serious
expression of intent to harm or assault.” See Planned
Parenthood, 290 F.3d at 1074 (quotations omitted).
Adam Kazal’s conduct, while more confrontational than
Tony’s, also did not amount to a true threat under either test.
David argues that statements in Adam’s first email—“You
start a fight with me, I will show you how Adam Kazal is
different to the rest of the family” and “See you around
grub”—were true threats. But the email nowhere threatened
a physical attack, and Adam stated repeatedly in the email
that his goal was “to expose [David] wherever [he goes]” and
to “show the good people of LA what scum they have
allowed into their city.” Similarly, the tweet and attached
screenshot threatened only to “expose you wherever you go!”
In context, these communications suggested that Adam was
“different to [sic] the rest of the family” in that he would
pursue the information campaign more aggressively than did
his brothers, but they did not threaten violence.
In an attempt to provide context in which to interpret the
first email, David testified that Adam Kazal had “assaulted”
his father in Australia in 2013, and he therefore believed that
“[t]he next action was not going to be in words.” But there is
little information in the record about the nature of the
“assault” in Australia. David testified that Adam “assaulted”
his father repeatedly, suggesting that Adam’s actions were
something other than a physical attack. David’s wife testified
that Adam “accosted” and “assaulted” David’s father, using
THUNDER STUDIOS V. KAZAL 21
the words interchangeably, again implying something other
than a physical attack. This ambiguous history did not
provide sufficient basis for finding an implicit true threat in
Adam’s first email. It was not “reasonably foreseeable” to
Adam that David would “seriously take his communication
as an intent to inflict bodily harm.” Fogel, 531 F.3d at 831.
Nor is there evidence that Adam subjectively intended to
threaten violence.
David also argues on appeal that Adam’s second email, in
response to the cease-and-desist letter, was extortionate and
therefore not protected. In that email, quoted above, Adam
demanded $666,666.66 for “Legal & Marketing, Pain and
Disruption” costs to cease activities, or he “reserve[d] the
right to . . . increase the size of [his] fleet” and do “whatever
is necessary to expose the Corporate Fraudster[] Rodric
David.” But David did not make his extortion argument in
the district court, and the jury was not instructed to determine
whether Adam had an intent to extort. The dollar figure
chosen—$666.666.66, invoking “the number of the beast”—
strongly suggests that the demand was merely rhetorical.
We therefore conclude, on independent review under
Bose, that Tony and Adam Kazal’s speech and speech-related
conduct did not fall into the exception for “true threats.”
Their conduct was protected under the First Amendment, and
is therefore excluded from the “pattern of conduct” that
constitutes stalking under California law. Cal. Civ. Code
§ 1708.7(b)(1), (a)(1).
Conclusion
We hold that the First Amendment applies to Tony and
Adam Kazal’s speech and speech-related conduct in
22 THUNDER STUDIOS V. KAZAL
California, and none of their conduct constituted a “true
threat” outside the protection of the Amendment. Because
Tony and Adam’s conduct in California was
“[c]onstitutionally protected activity” under California Civil
Code § 1708.7(b)(1), there is no “pattern of conduct” that can
support a judgment based on a violation of the California
statute. We reverse and remand with instructions to set aside
the judgment on Count Two.
REVERSED and REMANDED.
LEE, Circuit Judge, dissenting:
The First Amendment protects the good, the bad, and the
ugly. As the defendants admit, their conduct bordered on the
bad and unleashed the ugly. I largely agree with the
majority’s excellent opinion that the First Amendment
protects even such reprehensible conduct. But I do not
believe that the First Amendment—under its original public
meaning—extends to foreigners who lack substantial
voluntary connection to this country. The Kazal brothers
apparently have no connection to the United States, and they
should be unable to exploit the First Amendment as a shield
and a sword against those who live here. I respectfully
dissent.
I. The Kazals Cannot Invoke the First Amendment’s
Protection.
As the majority ably points out, the Kazal brothers’
conduct falls within the ambit of the First Amendment. But
I do not believe that they can seek refuge in it because the
THUNDER STUDIOS V. KAZAL 23
First Amendment does not extend to foreign aliens without
substantial voluntary connections to the United States.
A. The First Amendment does not extend to
foreigners who lack “substantial connections” to
the United States.
While the Constitution by its plain language does not
appear to contemplate extraterritorial application,1 the
Supreme Court has recognized that American citizens are
entitled to constitutional protections while abroad. See
Johnson v. Eisentrager, 339 U.S. 763, 779 (1950).
Conversely, foreign “aliens . . . within the United States may
challenge the constitutionality of federal and state actions.”
Ibrahim v. Department of Homeland Sec., 669 F.3d 983, 995
(9th Cir. 2012) (internal citations omitted). And foreign
aliens who are in even de facto U.S. territory may be able to
claim some constitutional protection in some cases. See
Boumediene v. Bush, 553 U.S. 723, 128 S.Ct. 2229, 171
L.Ed.2d 41 (2008) (enemy aliens detained in an area over
which the United States exercised de facto sovereignty may
file habeas petitions).
But what about foreign citizens who do not reside in the
United States and have only de minimis connection to the
United States? The Supreme Court has held that a foreign
national—at least in the Fourth Amendment context—must
have some “voluntary attachment to the United States” to
1
Sometimes, the Constitution’s silence on an issue means only the
survival of prior common law principles. See Stephen E. Sachs,
Constitutional Backdrops, 80 George Washington Law Review 1813–1888
(2012) (describing extra-textual legal rules predating, and insulated by, the
Constitution).
24 THUNDER STUDIOS V. KAZAL
assert that constitutional right. See United States v. Verdugo-
Urquidez, 494 U.S 259, 265–75, 110 S.Ct. 1056, 108 L.Ed.2d
222 (1990). In that case, DEA agents searched a Mexican
national’s homes in Mexico without a warrant and found
incriminating evidence of his drug trafficking operation. The
Supreme Court rejected the Mexican national’s claim of a
Fourth Amendment violation, focusing on the meaning of the
phrase “the people” in the Fourth Amendment and other
provisions of the Constitution. The Court held that the
Constitution uses “the people” as a special “term of art,” as
reflected in the Preamble, the First Amendment, the Second
Amendment, the Ninth Amendment, and the Tenth
Amendment. Id. It concluded that “the people” refers “to a
class of persons who are part of a national community or who
have otherwise developed sufficient connection with this
country to be considered part of that community.” Id. The
defendant there could not invoke the Fourth Amendment
because he was not “part of a national community” and did
not have “sufficient connection” to the United States to be
considered a part of “the people.” See id.Consistent with Verdugo-Urquidez, a historical survey of
the original public meaning of the term “the people” confirms
that the First Amendment should not extend to foreigners
who have no significant voluntary connection to the United
States and thus are not “part of [the] national community.”
See id.At the Founding, “the people” was not interchangeable
with “persons.” The Framers drew heavily on
Enlightenment-era social compact theory and English
common law: “the people” consent to be governed. As
Alexander Hamilton put it, “the origin of all civil
government, justly established, must be a voluntary
THUNDER STUDIOS V. KAZAL 25
compact,” and “no laws have any validity, or binding force,
without the consent and approbation of the people.”
Alexander Hamilton, The Farmer Refuted (1775) (emphasis
in original). Our Constitution thus uses the term “the people”
in the First, Second, and Fourth Amendments to describe
rights for individuals who have “sufficient connection” to the
United States but uses the words “person” or “accused” for
criminal procedural rights under the Fifth and Sixth
Amendments. Verdugo-Urquidez, 494 U.S. at 265–66. So,
too, with the Virginia Declaration of Rights, the predecessor
to the Bill of Rights.2
At the Founding, two forms of social compact theory
predominated and diverged along political lines. Federalists
typically favored a strict contractual approach to the social
2
The Virginia Declaration of Rights reflects the distinction between
“the people” and “person[/s]” as used in the Constitution. It refers to “the
people, community, and nation” as separate bodies, and “the people” is
most often used to refer to the voting class. For instance, the Virginia
Declaration uses “the people” to discuss electoral rights, powers, and
representation, but, when discussing broader issues of sovereignty, the
right to revolution, and the governed populace, it switches to the broader
term, the “the community.” See Section 3 (“when any government shall
be found inadequate or contrary to these purposes, a majority of the
community has an indubitable, inalienable, and indefeasible right to
reform, alter, or abolish it, in such manner as shall be judged most
conducive to the public weal”); Section 4 (“[t]hat no man, or set of men
is entitled to exclusive or separate emoluments or privileges from the
community”). But see Preamble (“A Declaration . . . made by the
representatives of the good people of Virginia, assembled in full and free
convention which rights do pertain to them and their posterity”). See also
Verdugo-Urquidez, 494 U.S. at 265–266 (discussing the use of “the
people” rather than “persons” or “the accused” in the Bill of Rights);
Parker v. Lovejoy, 3 Mass. 565, 568, 2 Tyng 565, 568 (1795) (describing
the Massachusetts Constitution as “an original compact, expressly,
solemnly, and mutually made between the people and each citizen”).
26 THUNDER STUDIOS V. KAZAL
compact and a more cramped reading of “the people”: Only
persons who, by birth or naturalization, acquired citizenship
received the benefits of the compact and thus could assert
constitutional rights.3 During the debate over the Alien and
Sedition Acts of 1798, the Federalists adopted the view that
the “people” included only citizens. See Verdugo-Urquidez,
494 U.S. at 267–69 (discussing the passage of laws and
contemporary views in response to the Crisis of 1798). See
also 8 ANNALS OF CONG. 1984–85 (1798) ((remarks of
Rep. William Gordon, a Federalist) (aliens not among those
for whose use and benefit the Constitution was formed)).
James Madison and the contemporary Republicans, on the
other hand, had a more expansive view of the social
compact—and thus a broader meaning of “the people.” They
advanced a territorial-based approach in which the primary
inquiry was whether a person owed allegiance to the laws of
the United States not only because of citizenship but also by
location and activity.4 In response to the passage of the Alien
3
The Federalist Papers often mention “the people” in the context of
citizenship. See, e.g., Federalist No. 2 (“[t]o all general purposes we have
uniformly been one people each individual citizen everywhere enjoying
the same national rights, privileges, and protections”); Federalist No. 57
(“[t]he electors are to be the great body of the people of the United
States”).
4
In the 1798 debates, Madison and other Republicans argued that
those passing through the United States owed temporarily allegiance, and
thus had some constitutional protections. See Gerald L. Neuman, Whose
Constitution?, 100 YALE L.J. 909, 934 (1991) (Madison wrote that it “is
an acknowledged principle of the common law, the authority of which is
established here, that alien friends . . . residing among us, are entitled to
the protection of our laws, and that during their residence they owe a
temporary allegiance to our Government.”) (internal citations omitted).
See also id. at 935 (noting that Madison argued that the due process clause
THUNDER STUDIOS V. KAZAL 27
and Sedition Acts, Madison drafted the Virginia Resolution
arguing against their constitutionality. He stated that it:
does not follow, because aliens are not parties
to the Constitution, as citizens are parties to it,
that whilst they actually conform to it, they
have no right to its protection. Aliens are not
more parties to the laws than they are parties
to the Constitution; yet it will not be disputed
that, as they owe, on one hand, a temporary
obedience, they are entitled, in return, to their
protection and advantage. Madison’s Report
on the Virginia Resolutions, reprinted in
4 ELLIOT’S DEBATES at 556.
One thing is clear from the Founding era debates: An
individual, at the very least, had to have some connection to
the United States—whether it be presence on our soil or some
form of implicit allegiance to this nation—to benefit from our
constitutional rights. The Supreme Court over the decades
has repeatedly reaffirmed this extra-territorial limitation to
constitutional rights.5 Just last year, the Supreme Court again
“literally reached aliens, by using in all places the term ‘persons,’ not
‘natives’”) (internal citations omitted).
5
See, e.g., United States ex rel. Turner v. Williams, 194 U.S. 279,
292, 24 S.Ct. 719, 48 L.Ed. 979 (1904) (holding that an excludable alien
is not entitled to First Amendment rights, because ‘[h]e does not become
one of the people to whom these thing are secured by our Constitution by
an attempt to enter forbidden by law”); Johnson v. Eisentrager, 339 U.S.
763, 770 70 S.Ct. 936, 94 L.Ed. 1255 (1950) (recognizing that an alien
“[is] accorded a generous and ascending scale of rights as he increases his
identity with our society,” but refusing to extend the Fifth Amendment to
enemy aliens, captured in China and imprisoned in Germany); Verdugo-
Urquidez, 494 U.S. at 265–75 (reiterating that “aliens receive
28 THUNDER STUDIOS V. KAZAL
declared that “it is long settled as a matter of American
constitutional law that foreign citizens outside U.S. territory
do not possess rights under the U.S. Constitution.” Agency
For Int’l Development. v. Alliance for Open Society
International, Inc., — U.S. —, 140 S.Ct. 2082, 2086, 207
L.Ed.2d 654 (2020) (“AOSI II”).
Our court has extended Verdugo-Urquidez’s “voluntary
connection” standard to the First Amendment’s right of free
association. In Ibrahim v. Dep’t of Homeland Sec., a
Malaysian national studied for several years at Stanford on a
student visa. 669 F.3d 983 (9th Cir. 2012). She eventually
travelled to Malaysia to attend an academic conference and
was prevented from returning to the United States because of
her placement on the “No-Fly List.” Id. at 987. She sued
seeking injunctive relief under the First and Fifth
Amendments to remove her name from the government’s
watchlists so that she might return to the United States. See
id. We held that Ibrahim could assert constitutional claims
because she had a “significant voluntary connection” to the
United States. Id. at 996–97. This was so because, despite
her departure to Malaysia, she spent four years studying at
Stanford. See id. And her departure, the court found, “was
to further, not to sever, her connection to the United States.”
Id. at 997.6
constitutional protections when they have come within the territory of the
United States and developed substantial connections with this country”).
6
Our court in Underwager v. Channel 9 Australia, 69 F.3d 361, 365
(9th Cir. 1995) suggested that “the people” in the First Amendment refers
to the freedom of assembly and right to petition the government only, and
thus “there is no expressed limitation as to whom the right of free speech
applies.” But that language in Underwager appears to be dicta because
the issue there was whether non-citizens residing in the U.S. are entitled
THUNDER STUDIOS V. KAZAL 29
In sum, the original public meaning of “the people”—as
used in the First Amendment and other provisions in the
Constitution—underscores that an individual must have
sufficient voluntary connection to the United States to assert
those constitutional rights.
B. The Kazals lack an adequate voluntary connection
to the United States to invoke the First
Amendment.
Nothing in the record suggests that the Kazals ever had
any connection to the United States before waging their
campaign against David. By their own admission, the
brothers Kazal are residents of Australia and the United Arab
Emirates, not the United States. They conduct no business in
America, nor were they present here when they concocted
their campaign and paid for the protests. In fact, it is not
clear from the record if the Kazals have even ever set foot on
American soil. For example, Adam Kazal testified that he
has never visited California.
In their reply brief, the Kazals contend that their domestic
speech to an American audience constitutes their “significant
voluntary connection.” But unlike the plaintiff in Ibrahim—
to the First Amendment protection. Id. at 365 (“We conclude that the
speech protections of the First Amendment at a minimum apply to all
persons legally within our borders.”). Further, such a cramped
interpretation limiting the application of “the people” to only the rights of
assembly and to petition the government would be odd; for example, it
would mean that the Establishment Clause applies even to foreigners who
do not reside here and have no connections to the United States. Finally,
I believe the Supreme Court’s recent decision in AOSI II has undermined
such a reading. 140 S.Ct. at 2086 (“foreign citizens outside U.S. territory
do not possess rights under the U.S. Constitution.”).
30 THUNDER STUDIOS V. KAZAL
who lived here and attended graduate school at Stanford—the
Kazals had no connection to this country before paying for
protests and roving vans. While it is true that an alien “[is]
accorded a generous and ascending scale of rights as he
increases his identity with our society,” no court appears to
have held that merely making payments abroad for speech in
the United States entitles a foreign national to constitutional
protections. Eisentrager, 339 U.S. at 770. Simply put, the
allegedly protected activity by itself cannot constitute a
“significant voluntary connection” to the United States.
Further, unlike the defendant in Ibrahim, the Kazals’
actions suggest they wanted to “sever,” not “further” their
“connection to the United States. Ibrahim, 669 F.3d at 997.
Ibrahim remained enrolled in an American university during
her brief trip abroad to attend an academic conference. See
id. at 986. As the Supreme Court in Eisentrager noted, an
alien is “accorded a generous and ascending scale of rights as
he increases his identity with our society.” 339 U.S. at 770.
As an academic at Stanford University, Ibrahim would have
advanced her academic career in the United States by
attending the conference overseas. Our court thus emphasized
that Ibrahim’s trip “was to further, not to sever, her
connection to the United States.” 669 F.3d at 986.
In contrast, the Kazals admit that their only connection to
the United States was funding protests against David. They
admit that their behavior was less then exemplary and did so
perhaps because they had little to lose even if they were
found to have violated our laws. Because they have no real
connection to the United States, no American court could
hold proceedings against them without their or their native
land’s cooperation, and they may even be effectively
judgment-proof. In short, unlike domestic speakers, the
THUNDER STUDIOS V. KAZAL 31
Kazals may evade obligations imposed by American law,
while obtaining benefits provided under the First
Amendment. See U.S. ex rel. Turner v. Williams, 194 U.S.
at 292 (explaining that an alien “does not become one of the
people to whom [First Amendment rights] are secured by our
Constitution by [engaging in conduct] forbidden by law”).
Even viewed most charitably, the Kazals’ speech does not
“further” even the most basic connection to the United States.
Instead, it was a connection designed “to sever” itself.
669 F.3d at 986. Our precedent recognizes that there are
some “aliens who may bring constitutional challenges,” and
some “who may not.” Ibrahim, 669 F.3d at 995. The Kazal
brothers cannot.7
The majority correctly points out that the government
may run afoul of the First Amendment in restricting
Americans’ access to information, even when it flows from
abroad. See Lamont v. Postmaster Gen., 381 U.S. 301, 302,
305 (1965). But see Kleindienst v. Mandel 408 U.S. 753(1972) (rejecting a First Amendment right-to-receive-
information challenge to the facially valid exclusion of an
immigrant under executive and legislative authority).
Lamont, however, provides no comfort for the Kazals because
they lack standing to assert an audience’s right to receive
information from abroad. A litigant “may only bring a claim
on his own behalf, and may not raise claims based on the
rights of another party.” Pony v. County of Los Angeles,
433 F.3d 1138, 1146 (9th Cir. 2006); Levine v. U.S. Dist.
7
A foreigner who lives abroad might still invoke the First
Amendment in some cases. For example, a foreign journalist who has
visited the United States or has written for publications with an American
audience might have a sufficient voluntary connection.
32 THUNDER STUDIOS V. KAZAL
Court for Cent. Dist. Of Cal., 764 F.2d 590, 594 (9th Cir.
1985).
Finally, I appreciate and agree with the majority’s point
that the First Amendment does not extend to foreigners with
no connections to the United States if it implicates national
security concerns. Indeed, “[i]f the rule were otherwise,
actions by American military, intelligence, and law
enforcement personnel against foreign organizations or
foreign citizens in foreign countries would be constrained by
. . . purported rights under the U.S. Constitution. That has
never been the law.” See AOSI II, 140 S.Ct. at 2086–87. For
example, a foreign operative living in Russia—or in Ukraine,
North Korea, or a rogue state—could pay for or transmit
propaganda aimed at stoking the fires of racial tension in
America. Under the Kazals’ extraterritorial view of our
Constitution, that foreign operative could invoke the First
Amendment and sue our government in our courts if our
country acted to stop those malicious acts.
While this case does not involve national security issues,
I still believe that—under the original public meaning of “the
people”—foreign nationals cannot use the First Amendment’s
shield as a sword against us. “The distinction between
citizens and aliens follows from the undoubted proposition
that the Constitution does not create, nor do general principles
of law create, any juridical relation between our country and
some undefined, limitless class of noncitizens who are
beyond our territory.” Verdugo-Urquidez, 494 U.S. at 276(Kennedy, J. concurring).
Although our Constitution serves as the inspiration for
many freedoms enjoyed by people around the world, it does
not guarantee these rights to foreigners outside our borders
THUNDER STUDIOS V. KAZAL 33
who have no voluntary connection to the United States. Far
from a defect, the overwhelming historical evidence suggests
that this is by design. The Kazal brothers, who are in no way
moored to the United States, cannot shield themselves under
the cover of the First Amendment.
I respectfully dissent.