California appeals court rules vulgar language in text messages not obscene

In the published portion of its decision, the panel explained that isolated words cannot be extracted from a private message for purposes of imposing criminal liability based on their abstract offensiveness and that the vulgar language employed by the juvenile, a 16-year old identified as C.C., was not obscene.

Last October, C.C. sent two text messages to his ex-girlfriend, a 16-year old identified as S., expressing his anger and frustration that their relationship had ended. He said he hated her and predicted that she was going to engage in an intimate relationship with a football player at their high school.

C.C. also conveyed a desire to “kill half the school” and then shoot himself in front of her “just to show u how much u pushed me.”

‘Heated Argument’

A peace officer who interviewed C.C. testified that C.C. had expressed remorse for his behavior and explained that the messages were sent in response to “a heated argument.”

S. testified that she was not annoyed by the texts or offended by the use of the swear words since such vocabulary was in common use at the high school that she and C.C. attended.

She had not reported the texts to the police, but she had told a friend and word spread among other students, one of whom told the police.

The girl asserted that C.C. had subsequently apologized and that the two were friends again.

A delinquency petition was filed against C.C, alleging that he had made criminal threats and a threatening or obscene telephone communication in violation of Penal Code Sec. 653m(a), which prohibits any contact by means of an electronic communication to or about another person containing “obscene language” or “any threat to inflict injury to the person or property of the person addressed.”

The criminal threat allegation was later dismissed and Butte Superior Court Judge Tamara L. Mosbarger found that the texts were sent with the intent to annoy, and that the first text constituted a threat and that both texts were obscene.

She ordered that C.C. be placed on informal probation and directed C.C. to write a 500-word essay on the Columbine High School shootings.

Prevailing Notions

But Justice Tani Cantil-Sakauye, writing for the Court of Appeal, said that the messages were not lewd, nor offensive to prevailing notions of modesty or decency, assuming that they had been sent to annoy.

“The meaning of words is always contextual,” she explained. “As provided in the erotic obscenity arena, matter must be judged in its entirety, including the context in which it is presented.”

The justice opined that the expletives in the message were merely used “as verbs and adjectives to emphasize the depth of [C.C.’s] feelings, and in a couple of places as insults to describe how he felt about S. as a result of her conduct,” and did not import any lewd thoughts about her.

As for the one explicit sexual reference, where C.C. posited that S. would commence an amorous relationship with another boy, Cantil-Sakauye reasoned that the expletive served as “a synonym for sexual congress,” which “conveyed no more salacious meaning than a more refined term for that activity.”

Secondary Meaning

Although the vocabulary employed by C.C. is “generally eschewed in polite settings,” and the “dictionary definition” of the words he used would refer to sexual activities, Cantil-Sakauye suggested that such language has also developed secondary meanings through modern usage as non-sexual epithets.

She cited the dissent in In re Price (1970) 4 Cal.App.3d 941, which she said illustrated this point by example of a phrase which “in the context in which it was used referred not to copulation of porcine animals,” and another “vulgarism describing the filial partner in an oedipal relationship” as an epithet rather than reference to a “shameful or morbid interest in intra-family sex.”

Cantil-Sakauye emphasized that in this case, the words were used by “an agitated, frustrated high school boy to his former high school girlfriend,” and both parties to the communication attended a high school where such language was undisputedly in common parlance.

To take individual words from the communications and predicate criminal liability upon them would impermissibly broaden the meaning of obscene beyond its usage in reference to erotic material, Cantil-Sakauye said.

Additionally, in the unpublished portion of her decision, the justice clarified that the violence described in the message was not a threat for purposes of Sec. 653(m) because it did not threaten physical injury to S.

“In short, whatever may be said about the manner in which C.C. expressed himself, it was not criminal,” Cantil-Sakauye concluded.

Justices Coleman Blease and Ronald B. Robie joined Cantil-Sakauye in her decision.

The case is In re C.C., 09 S.O.S. 6169

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