ROTH, P. J. I dissent.
On March 16, 1978, respondent, a national director of the Jewish Defense League, held a press conference wherein he stated inter alia:
“R: This is a nationwide offer. We absolutely feel desperate in the sense that, as I’ve said before, in the last nine months the Nazis have gained a tremendous amount of notoriety. They are building a national movement. They’ve got money behind them, and we’re fearful if we allow it to grow. We begged the Jewish community many years ago, that if we don’t stop the Nazis now, in several years they’ll be marching through our community. And the Jewish community didn’t listen and so we were right. And this is the, this is the end result. . . . “[w]e sincerely mean what we say, that we’re going after the Nazis. We’re not going to relax, we’re not going to let up, we’re going to declare all out war on people who want to advocate our destruction. . . .
[981]“R: April 20. And the Nazis plan to march through Skokie, Illinois, which is 70% Jewish, 7,000 survivors of the holocaust. They plan to bring big shields with gigantic swastikas on them: they plan to state that, we missed you 30 years ago, and we’re going to try it again. As I said before, it will cause a tremendous grief to the people who are living there, specifically, the survivors of the holocaust. And we feel it’s a desecration of our God, and we feel it’s a desecration of the Jewish people to allow it to happen in the name of freedom of speech. . . . [w]e’re deadly serious, that we’ll even go to jail, that we’ll risk spending time in jail, if we have to, in order to stop the Nazis, because we think we’ve learned from history. . . .
“R: This was announced the other day in Chicago, when our national director stated that we’re there, and we’re coming there, and we’re going to stop the Nazi march at all cost. And it’s a nationwide thing, and we’re bringing people as far away as Montreal, Canada. And you can expect a major turnout of Jewish activists, of Jewish militants who are willing to go into the streets and fight Nazis. . . .
“[Questioner:] I need to get one thing clarified before I go off here, ah the $500 reward .. .
“R: Right.
“[Questioner:] Ah that is not just blanket for any Jew or Gentile who maims or seriously injures any member of the Nazi party. Is that for anybody who does this in defense of the Jewish .. .
“R: That’s in defense of the Jewish or Gentile community. [Italics added.]
“[Questioner:] So it would be incorrect to say just a blanket offer.
“R: You could say it’s a blanket offer, providing that they could prove that it was in the defense of the community.
“[Questioner:] Don’t you think that you’re really opening the door?
“R: No. No. It doesn’t enter my mind at all. I want people to know, that if they go out there and they take the consequences of being arrested, in either the attack of an American Nazi or whatever, that there are people who are grateful. That there are people who are right behind them [982100]%; and if money is a motivating factor, which it seems to be in America, that seems to be the bottom line, yeah. That’s where we’re at. . . .
“R: We wish to announce two events. On April twentieth, a number of Neo-Nazis perhaps, a hundred fifty, perhaps two hundred, will march into the Jewish area in Skokie, Illinois. We the Jewish Defense League of the West Coast and East Coast will a mass [sic] at least five thousand to six thousand people in that area, to literally stop the Neo-Nazi movement. We’re not going there under the intention to be pacifists. They like to have a nice non-violent quiet protest. We’re going there to take names and bury them if we have to. We’re not going to allow Neo-Nazis to come into Skokie and advocate the Judacide of the Jewish people there. We’re not going to allow them, with stench of the crematoria still existing in that city, with seven thousand survivors with numbers on their arms. We’re not gonna allow them to be insulted, intimidated again by Nazis. We believe if we would have done it thirty years ago there might have been a different story. Many more Jews would have been alive today. And we’re going there and we’re sponsoring the way of people. If they don’t have the money, we’re providing them a round-trip ticket from Chicago, Los Angeles, it’ll cost us—we now have a travel agent who is going to eliminate his commission, and it’ll cost us between a hundred and sixty, a hundred seventy dollars per person. If the individual cannot afford his way, we the Jewish Defense League will be sponsoring him, providing he meets our qualifications. The qualifications [sic] is: that he is of sound mind and he is of sound body. And I mean that he is able-willing, ready, and able to handle himself or herself in the streets.
“[Questioner:] Are you really ...
“R: And that means. We also have an added feature. We are offering five hundred dollars, that I have in my hand, to any member of the community, be he Gentile or Jewish, who kills, maims, or seriously injures a member of the American Nazi Party. This offer is being made on the East Coast, on the West Coat, [¿v'c] And if they bring us the ears, we’ll make it a thousand dollars. The fact of the matter is, that we’re deadly serious. This is not said in jest, we are deadly serious. In the defense of the Jewish community, should any Nazi even dream of attacking a Jew like they did [end of tape.]”
Based upon the foregoing, a complaint was issued on April 3, 1978 charging respondent with violation of Penal Code section 653f and he was held to answer at a preliminary hearing conducted June 9, 1978.
[983]On June 26, an information alleging in one count that appellant had, on or about March 26, solicited “another to commit and join in the commission of the crime of murder. ...” A hearing on respondent’s motion to set aside the information pursuant to Penal Code section 995 was commenced and heard in part on October 27, 1978, and concluded January 18, 1979.
In addition to the excerpts of the speech quoted above, the record upon which the section 995 motion was based makes clear the following facts:
Respondent could not call a meeting at the Press Club; he had to be there by invitation; he did not address a rally of sympathizers for the purpose of stirring them into a frenzy of excitement; he was addressing media representatives seeking to learn what were the plans of the Jewish Defense League in counterdemonstration to a Nazi march in Skokie, Illinois, an event calendared five weeks in the future. In exploitation of that opportunity, respondent, in a speech of approximately 800 words, made the hyperbolized solicitation referred to by the majority, and that included infra, to attract attention to a sensitive and explosive national issue and to generate news on a national scale and thus dramatize the obscene insult the Nazis sought to impose on the Jews of Skokie. Rubin, although not gifted with the eloquence of Elie Weisel,1 did make clear the sole thrust of his speech, to wit: that the Jewish Defense League wanted the world to know that Skokie had been selected by the Nazis with ruthless calculation because it was a small city with a 70 percent Jewish population comprising in that percentage 7,000 Jews who had indelible numbers on their arms identifying them as surviving victims of Nazi concentration camps, and that the Nazis were about to march in Skokie to remind those survivors and also their coreligionists living in Skokie or elsewhere, that Jews, with or without indelible numbers, were marked for extinction.
As posed by the district attorney in his brief, the language relied upon, taken out of context as is the language of the majority, as the basis of a violation of Penal Code section 653f was in pertinent part as follows:
“Q: I need to get one thing clarified before I go off here, ah the $500 reward...
“R: Right.
[984]“Q: Ah that is not just blanket for any Jew or Gentile who mains [sic] or seriously injures any member of the Nazi party. Is that for anybody who does this in defense of the Jewish .. .
“R: That’s in defense of the Jewish or Gentile community.
“Q: So it would be incorrect to say just a blanket offer.
“R: You could say it’s a blanket offer, providing that they could prove that it was in the defense of the community.
“Q: Of the Jewish community?
“R: Or Gentile community. It makes no difference. It makes no difference to us.”
Appellant argues that settled rules required the trial judge to deny the section 995 motion of respondent (Rideout v. Superior Court (1967) 67 Cal.2d 471, 474 [62 Cal.Rptr. 581, 432 P.2d 197]) if the magistrate had some rational ground to assume that an offense was committed and relies on People v. Gordon (1975) 47 Cal.App.3d 465 [120 Cal.Rptr. 840] as authority to show that appellant’s solicitation of murder was within the embrace of the settled rule. Gordon holds at page 472: “[Solicitation consists of asking another to commit one of the specified crimes [Penal Code section 653f] with intent that the crime be committed.” (Italics added.)
On conclusion of the argument on January 18, 1979, the trial judge stated that after examining the preliminary transcript, including by stipulation all statements which were recorded at the March 16 press conference2 and the officer’s testimony, absent any consideration of constitutional questions, probable cause to bind appellant over for trial may not have been lacking. Speaking to that facet of. the argument, the court said in pertinent part:
“When you compare the Rubin language with the statements in the Brandenburg case, the Watts case, Hess vs. Indiana, [1973] 414 U.S. 105, [985]. . . the language of Mr. Rubin is more subject to be interpreted as a true threat than the language in those cases. [Italics added.]
“At the other end of the cases examined by the Court, Mr. Rubin’s language was not as definite and specific as the language in the case of U.S. vs. Kelner,3 [534 F.2d 1020 (2d Cr. 1976)], or the California case of People vs. Bohmer, [1975] 46 Cal.App.3d 185, and the Court is particularly concerned and drawn to the language in the Bohmer case at page 197, footnote 1, where the Court stated as follows: ‘We doubt that the ‘imminent lawless action’ test of Brandenburg is required in determining the guilt of one who advises the commission of a specific overt physical act which is by definition a crime. Such aiding and abetting is sometimes separated by a substantial distance in time from the actual substantive crime.’ ”
I note at this point that I do not doubt the constitutionality of section 653f, and absent any First Amendment question, I agree arguendo with the foregoing remarks of the trial judge.
Thereafter, addressing himself to the First Amendment question, the trial judge, with the case of Watts v. United States, 394 U.S. 705 [22 L.Ed.2d 664, 89 S.Ct. 1399], undoubtedly in mind, determined as a matter of law that Rubin’s alleged solicitation in violation of section 653f was not and could not be construed to be a true “solicitation” when listened to or read in the context of Rubin’s speech, and was constitutionally protected.4 In Watts, a case construing a United States statute and facts strikingly similar to those at bench, the court said at page 707 [22 L.Ed.2d at p. 667]:
[986]“Certainly the statute under which petitioner was convicted is constitutional on its face. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. See H. R. Rep. No. 652, 64th Cong, 1st Sess. (1916). Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech. [Italics added.]
“. . . But whatever the ‘willfulness’ requirement implies, the statute initially requires the Government to prove a true ‘threat.’ We do not [987]believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose ‘against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.’ New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58 (1966), is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was ‘a kind of very crude offensive method of stating a political opposition to the President.’ Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.” (Italics added.)
At bench the trial judge, concluding his analysis of the facts, said in pertinent part; “I have read your points and authorities . . . viewing the defendant’s statement in its proper context I must agree with the comments that appear on page 11 of the Amicus brief, line 1, where they state; ‘Amicus contend that the form and contents of Rubin’s communication were used solely to attract nationwide media exposure. The contents evidence a lack of any serious intentions to solicit the commission of a crime. His remarks constitute political hyperbole and were merely a crude, offensive method of stating political opposition to the Nationalist Socialist Party.’
“I feel in reading all of the statements made on March 16th, ... the language used by Mr. Rubin falls within the language protected by the First Amendment.” (Italics added.)
The motion to dismiss was thereupon granted. This appeal by the People followed.
In Watts, the court deals with a threat in violation of a United States statute5 admitted to be constitutional. At bench we deal with a solicitation prosecuted under a state statute also conceded to be constitutional.
[988]Tested by the requisites enunciated in Watts, the solicitation at bench was not a true “solicitation” any more than was the “threat” in Watts a true threat.6
United States v. Kelner (2d Cir. 1976) 534 F.2d 1020 illustrates a true “threat” or “solicitation” as distinguished from the one at bench. The Kelner court concedes that determination of threat or solicitation is a matter of law and states at page 1027: “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. . . .” Kelner then proceeds to show that the facts before it as to a threat were “unequivocal, unconditional and specific expressions of intention immediately to inflict injuiy” and discusses intent, general and specific, to show the certainty, immediacy and the lack of the conditional nature of all the facts and circumstances before it.
In Kelner, the stated pertinent facts are: “. . . Miller was assigned to cover the JDL press conference. When he and his film crew arrived at the JDL headquarters, the conference had already started. Appellant, Kelner, was seated in military fatigues behind a desk with a .38 caliber ‘police special’ in front of him. To Kelner’s right another man was dressed in military fatigues. Miller heard one of the several reporters at the conference ask Kelner whether he was talking about an assassination plot, and heard Kelner answer in the affirmative. The WPIX crew quickly filmed general shots of the press conference without sound for use as a ‘lead-in’ on the news and then began filming an actual interview of Kelner by Miller. . . .
“Kelner: We have people who have been trained and who are out now and who intend to make sure that Arafat and his lieutenants do not leave this country alive.
“Miller: How do you plan to do that? You’re going to kill him?
“Kelner: I’m talking about justice. I’m talking about equal rights under the law, a law that may not exist, but should exist.
[989]“Miller: Are you saying that you plan to kill them?
“Kelner: We are planning to assassinate Mr. Arafat. Just as if any other mur—just the way any other murderer is treated.
“Miller: Do you have the people picked out for this? Have you planned it out? Have you started this operation?
“Kelner: Everything is planned in detail.
“Miller: Do you think it will come off?
“Kelner: It’s going to come off.
“Miller: Can you elaborate on where or when or how you plan to take care of this?”
The alleged solicitation at bench considered in the context of the speech was hyperbole with respect to a vital and explosive public issue, conditioned on the defense of the Jewish and Gentile community with respect to an event planned 5 weeks in the future and 2,000 miles removed from Los Angeles; the language of the solicitation had no immediacy and was uncertain, vague and general.
The Supreme Court of the United States disposed of Watts on a writ of certiorari without a hearing and decided summarily as a matter of law that the threat involved in that case was not a true threat.
“The motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted and the judgment of the Court of Appeals is reversed. The case is remanded with instructions that it be returned to the District Court for entry of a judgment of acquittal.” (Watts v. United States, supra, 394 U.S. at p. 708 [22 L.Ed.2d at pp. 667-668].)
The trial court’s conclusion as a matter of law that Rubin’s remarks were not a “true” solicitation in violation of Penal Code section 653f but were embraced in the First Amendment as permitted speech, in my opinion follows the law thus enunciated.
I would affirm.
A petition for a rehearing was denied October 12, 1979. Roth, P. J., was of the opinion that the petition should be granted. Respondent’s petition for a hearing by the Supreme Court was denied November 15, 1979. Bird, C. J., and Mosk, J., were of the opinion that the petition should be granted.
See footnote 4, infra.
The tape recording made by the police containing the language set out above did not include everything said by respondent at the press conference. While it was introduced in evidence at the preliminary hearing, no transcript thereof was made until some time in November. The transcript rather than the tape was relied on by the trial court, though both counsel agreed the former, with inconsequential exceptions, was an accurate recital of the tape’s contents.
Discussed infra.
The facts and circumstances which provide the foundation for respondent’s news conference remarks and which were necessarily considered by the trial court (Evid. Code, § 451, subd. (f)) were more eloquently and poignantly summarized in an address made April 24, 1979, before President Carter’s Commission on the Holocaust by Mr. Elie Weisel, a recognized authority on the Holocaust and chairman of the commission, in part as follows:
“We, the few survivors, were left behind to bear witness and tell the tale.
“On my first night in the camp—which was the last for most of my friends, my relatives, my teachers—I wrote:
“Never shall I forget that night, which has turned my life into one long night, seven times cursed and seven times sealed. Never shall I forget that smoke. Never shall I forget the little faces of the children whom I saw being thrown into the flames alive beneath a silent blue sky.
“Never shall I forget those flames which murdered my hopes forever.
“Never shall I forget that nocturnal silence which deprived me, for all eternity, of the desire to live.
“Never shall I forget those moments which murdered my soul and turned my dreams [986]into dust, into smoke . . . Never shall I forget these words even if I am condemned to live as long as God himself.
“What does one do with such memories of fire, with so many fragments of despair? How does one live in a world which witnessed the murder of one million children?
“We didn’t know. We still don’t. How can anyone explain evil of such magnitude? How can anyone comprehend so much pain and anguish? One cannot conceive of Auschwitz with God or without God. And what about man? Who can understand the calculated depravation of the killers? The indifference of the onlookers? When Jews did have a of how countries were there, to them?
“What was the Holocaust—an end or a beginning? Prefiguration or culmination? Was it the final convulsion of demonic forces in history? A paroxysm of centuries-old bigotry and hatred? Or, on the contrary, a momentous warning of things to come?
“When one group is persecuted, mankind is affected. We must remember that only the Jewish people’s extermination was an end in itself. Jewish victims, stripped of their identity and of their death, were disowned by the whole world . . . not for what they did or said, but for who they were—sons and daughters of a people whose suffering is the most ancient in recorded history.
“Every occupied nation, every underground movement received help from London, Washington or Moscow. Not the Jews. They were the loneliest victims of the most inhuman of wars. A single air-drop, a single rescue mission would have proved to them, and to the enemy, that they were not forgotten. But they were forgotten. . .
yet, nightmare lifted, there was no hate the hearts of those who survived. Only sadness and hope as well. They were convinced that, after Auschwitz, people would no longer yield to fanaticism, nations would no longer wage war and racism; anti-Semitism and class humiliation would be banned forever.
“Little did we know that, in our lifetime, we would witness more wars, new racial hostilities and an awakening of Nazism. Little did we know that books would appear in many languages offering ‘proof’ that the Holocaust never occurred. Little did we know that Jewish children would again be murdered in cold blood by killers in Israel.
“The survivors advocated hope, not despair. Instead of choosing nihilism and anarchy, they chose to opt for man. Many went to rebuild an ancient dream of Israel in Israel. They all chose to remain human in an inhuman society—to fight for human rights
“We have learned not to be neutral in times of crisis, for neutrality always helps the aggressor, never the victim. We have learned that silence is never the answer. We have learned that the of love is not hate, but indifference.
“So let us remember for their sake and ours. Memory may be our only hope to save the world from the ultimate punishment—a nuclear holocaust.”
“After a jury trial in the United States District Court for the District of Columbia, petitioner was convicted of violating a 1917 statute which prohibits any person from ‘knowingly and willfully . . . [making] any threat to take the life of or to inflict bodily harm upon the President of the United States (Watts v. United States, 394 U.S. 705 [22 L.Ed.2d 664, 666].)
“ ‘They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.’ ‘They are not going to make me kill my black brothers.’ On the basis of this statement, the jury found that petitioner had committed a felony by knowingly and willfully threatening the President. The United States Court of Appeals for the District of Columbia Circuit affirmed by a two-to-one vote. 131 U.S.App.D.C. 125, 402 F.2d 676 (1968). We reverse.” (Watts v. United States, 394 U.S. 705, 706 [22 L.Ed.2d 664, 666].)