Thunder Studios, Inc. v. Kazal, No. 19-55413 (9th Cir. 2021)
Annotate this Case
After plaintiff and Thunder Studios filed suit against defendants in federal district court, the jury found that defendants committed the tort of stalking under California Civil Code 1708.7. In this case, 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.
The Ninth Circuit held that defendants' speech and speech-related conduct was protected under the First Amendment and was therefore excluded from section 1708.7. The panel explained that the First Amendment applied to the speech and speech-related conduct of defendants, 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. The panel need not, and did not, here consider under what other circumstances a noncitizen living abroad has standing to claim the protections of the First Amendment. The panel also held that none of defendants' conduct constituted a "true threat" outside the protection of the First Amendment. Therefore, because defendants' conduct in California was constitutionally protected under section 1708.7(b)(1), there is no "pattern of conduct" that can support a judgment based on a violation of the California statute. Accordingly, the panel reversed and remanded with instructions.
Court Description: 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 was protected under the First Amendment and was 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. 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.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.