  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                      DIVISION ONE
STATE OF WASHINGTON,                         )      No. 77982-6-I
                                             )
                        Respondent,

       v.
                                             )      PUBLISHED OPINION
JEREMY WILLIAM DAWLEY,                       )
                                             )      FILED: December 30, 2019
                        Appellant.


       VERELLEN,   J.   —   Jeremy Dawley asserts a facial challenge to

RCW 9A.76.180, the intimidating a public servant statute. Specifically, Dawley

argues the statute is unconstitutionally overbroad because it restricts a substantial

amount of protected speech. Dawley contends the statute must be limited to true

threats, serious expressions of the intention to inflict bodily harm upon or to take

the life of another. Because the statute is a content based restriction on pure

speech, it is subject to strict scrutiny and must be narrowly tailored to serve

compelling state interests. We agree with Dawley that the statute is not narrowly

tailored unless limited to true threats alone. Because the State concedes, and we

agree, that there is insufficient evidence that Dawley made a true threat, we

reverse his convictions for intimidating a public servant.
No. 77982-6-1/2



                                        FACTS

       In 2012, Dawley was discharged from the United States Navy after suffering

a traumatic brain injury. Dawley lived in Oak Harbor. At night, Dawley regularly

went on long walks with his friend, Efrain Palacios. Palacios and Dawley

frequently called the Island County Communications (1-COM) nonemergency line

to report traffic issues, parking violations, and other complaints.

       Between October and December 2016, Dawley complained to Kevin

Dresker, the Oak Harbor chief of police, and Nikki Esparza, the city attorney, about

the level of officer discretion in addressing his complaints. Dawley was also

frustrated with the officer response time.

       On the evening of January 8, 2017, Palacios and Dawley went for a walk.

Dawley called 1-COM to report two illegally parked cars. The dispatcher requested

that Dawley wait at his current location to talk with the responding officer. Officer

Patrick Horn arrived and found Dawley sitting on a stump. Dawley had his service

dog with him. Officer Horn shined his spotlight on Dawley.

       Officer Horn suggested that Dawley “carry a notebook with him so he could

notate different violations that he saw and then he could give [1-COM] a call and to

let us know what all those were” at one time.1 While Officer Horn and Dawley

were talking, another officer pulled up. Dawley became agitated. At trial, Officer

Horn testified:



       1   Report of Proceedings (RP) (Dec. 6, 2017) at 348.




                                             2
No. 77982-6-1/3



       [Dawley] then told me not to get out of my patrol car or else his dog
       would attack. And I told Mr. Dawley if he let his dog attack me, I
       would be forced to shoot his dog. And he stated that he was aware
       of self-defense laws and that if I shot his dog, that he would in turn
       stab me. And that’s when [the other officer] made the statement to
       him, “If you stab my partner, I’m going to have to shoot you.”~21

       On January 9, the day after the incident, Dawley left the following voicemail

for Chief Dresker:

              This is Jeremy Dawley again. I’m not getting a phone call
      back from you. So do I need to look up your address and literally
      show up at your house ‘cause I’m that not afraid of you, and I’m that
      pissed off at your police officer. Urn, I need something done about
      last night.   . Is that how you guys do business? You and I,
                        .   .


      thought we had good terms but apparently, that just went to shit last
      night, so true colors came out. So I want to know what the hell you
      want me to do. Like is this just like a personal thing, like I just have
      to handle it myself? Or are you going to take my complaint serious
      at some point? Like where do you want this to stop?     .   . I was the
                                                                      .


      guy who was almost shot by the police department because I want
      people to start acting right. So if you could give me a call back that
      would be awesome. Thank you.[3~

      After listening to the voicemail, Chief Dresker called Dawley. Chief Dresker

did not record the subsequent phone call, but he testified:

      Mr. Dawley was upset with the officers and the contact he had with
      [Officers Horn] [a]nd he pretty quickly went to the fact that he was
      going to look up my information, information on my family and the
      city attorney, and that he would seek out certain groups to provide
      that information to.      .   .




      2   kI. at 353.
      ~ Ex. 1.




                                          3
No. 77982-6-1/4



                  He said he was going to use. Green Beret tactics, and
                                                   .   .


       then he further explained that he would get the local populace to take
       the action so he wouldn’t have to   .   .




                 [H]e wanted certain actions to take place, and he wanted
       them—quick responses. And these are these calls of the bushes
       and parked cars and those things and that he wasn’t getting that, he
       wasn’t happy, and that I wasn’t doing anything about it.~4~

       Also on January 9, Chief Dresker spoke to the city attorney, Esparza, about

the comments Dawley made concerning her and her family. Esparza called

Dawley while Chief Dresker was present. Dawley allowed Esparza to record the

phone call. During that call, Dawley said:

       I really think something needs to be done about this.   .   .So, I mean,
                                                                       .


       it’s completely up to you. But if you guys aren’t willing to draw the
       line, like I’m gonna protect myself. I’m not saying I’m gonna come
       after you guys ‘cause that’s—I’m not a murderer, I’m a law-abiding
       citizen..




               Thank you much for making me feel unsafe in my community
       that I’ve never done anything wrong in. I hope you feel safe though.
       You feel safe, ma’am? Do you feel safe at your house when you go
       to sleep?[5]

       Esparza asked Dawley about his phone call with Chief Dresker. Dawley

stated, “I just said that I felt others in the community would like to know your

whereabouts, your picture, the picture of your children. I mean, that’s legal. I can

do that.”6 Dawley went on to say, “[lit’s a community improvement project, you


       ~ RP (Dec. 6,2017) at 239-41.
       ~ Ex. 2 at 0:23-1:02.
       61d.at 1:23-1:30.



                                          4
No. 77982-6-1/5



know. It’s a Green Beret tactic where you teach the locals, so it’s nothing illegal.

I’m not obligating or even insisting that they do anything illegal. All I’m doing is I

told them I would provide the information.”7 When Esparza clarified Dawley’s

statements, he stated:

               I can educate whoever I like on any matter of personal
       defense, offensive offense. That’s not illegal, so you cannot be
       upset about that. And as far as providing your picture and stuff, they
       already know who you are. So I’m not doing anything illegal. I’m not
       saying I’m gonna ask ‘em to go and do anything illegal to you, no. I
       didn’t do anything like that.~8~

       Dawley indicated that he wanted Esparza “to do [her] job. The same thing

with the police chief.”9 Dawley also indicated:

               And I don’t want to be assaulted by, assaulted by your police
       officers, killed by your police officers, otherwise harassed by your
       police department. Your ICOM dispatch is going to continue to take
       my complaints. They’re not illegal, they’re not ill foundedj10]

       Later in the same phone call, Dawley stated:

      [L]et’s just say hypothetically. I was going to say, “Hey, you know
                                        .   .


      what, I’ll do a direct mailing to the pedophiles and the rapists and the
      violent offenders, and I’ll have ‘em sent to your house because      .


      you make me feel unsafe. I can’t defend myself.       .You’re in your
                                                                .


      home, you have your gun, you’re comfortable, you’re not on the
      street, you know what to do if somebody approaches your home.
      No, that’s not right, that’s not what you did to me. And what you did
      to me as a city is you made me feel completely unsafe, not once but
      twice now. Your officers have put me into killing range with a
      firearm. A firearm, ma’am! What happens if I came to your house

      ~ Id. at 2:16-2:30.
      8   kc~. at 2:43-3:05.
        ki. at 4:25-4:27.
      10 ki. at 4:30-4:40.




                                                5
No. 77982-6-1/6



       and I put you into killing range with a firearm, right? You’d be
       upset.t1 1]

       On January 10, Dawley filed a public record request at the Oak Harbor

Police Department. He sought records on “[v]iolent offenses that resulted in

physical harm and offenders to include sexual assaults.”12 Chief Dresker arrested

Dawley after Dawley filed the request.

      The State charged Dawley with three counts of intimidating a public servant

and one count of telephone harassment. The jury convicted Dawley of two of the

counts of intimidating a public servant and the single count of telephone

harassment.

      Dawley appeals his convictions for intimidating a public servant.

                                     ANALYSIS

I. Constitutionality of RCW 9A.76.180

      Whether a statute is unconstitutionally overbroad under the First

Amendment presents a question of law that we review de novo.13

      Because of the important rights protected by the First Amendment,
      the overbreadth doctrine allows a litigant to challenge a statute on its
      face, rather than as applied to his own facts, and have a statute
      invalidated for overbreadth where it would be unconstitutional as
      applied to others even if not as applied to him.t14~




      ~ ki.at 11:34-12:37.
      12   Ex. 28.
      13   State v. Immelt, 173 Wn.2d 1, 6, 267 P.3d 305 (2011).
      14 State v. Motherwell, 114 Wn.2d 353, 370-71, 788 P.2d 1066 (1990).



                                          6
No. 77982-6-117



          Usually, “[t]he party challenging an enactment bears the burden of proving

its unconstitutionality.”15 But in the context of a First Amendment challenge, the

State “bears the burden of justifying a restriction on speech.”16

          As a threshold matter, we must consider whether the statute reaches

constitutionally protected speech. First Amendment protection does not extend to

certain types of speech, including true threats,17 fighting words, and obscenity.18

“A ‘true threat’ is a statement made ‘in a context or under such circumstances

wherein a reasonable person would foresee that the statement would be

interpreted      .   .   .   as a serious expression of intention to inflict bodily harm upon or to

take the life of [another individual].”19 If a statute regulates only unprotected

speech, the First Amendment is not implicated.

          Here, RCW 9A.76.180(1) provides, “A person is guilty of intimidating a

public servant if, by the use of a threat, he or she attempts to influence a public

servant’s vote, opinion, decision, or other official action as a public servant.”

Under RCW 9A.76.180(3)(b), “Threat’ as used in this section means                    .   .   .   [t]hreats




          15   Immelt, 173 Wn.2d at 6.
          16   Ino lno, Inc. v. City of Bellevue, 132 Wn.2d 103, 114, 937 P.2d 154
(1997).
          17   State v. Williams, 144 Wn.2d 197, 207, 26 P.3d 890 (2001).
          18   State v. Kilburn, 151 Wn.2d 36, 42-43, 84 P.3d 1215 (2004).
          State v. Knowles, 91 Wn. App. 367, 373, 957 P.2d 797 (1998) (alterations
          19

in original) (quoting United States v. Khorrami, 895 F.2d 1186, 1192 (7th Cir.
1990)).



                                                       7
No. 77982-6-1/8



as defined in ROW 9A.04.11O.” RCW9A.04.11O(28) provides several alternative

definitions of ‘threat.”

       The court instructed the jury solely on the definition of “threat” in

ROW 9A.04.11O(28)(j). Section (j) defines a “threat” as “a direct or indirect

communication with the intent.    .   .   [t]o do any other act which is intended to harm

substantially the person threatened or another with respect to his or her health,

safety, business, financial condition, or personal relationships.” The jury was not

instructed as to any of the other definitions of “threat” from ROW 9A.04. 11 0(28)20

       Although ROW 9A.04.110(28)(j) prohibits true threats because it includes

threats to substantially harm a person’s health or safety, the statute also implicates

protected speech because it includes threats to a person’s business, financial

condition, or personal relationships. As a result, ROW 9A.04.11O(28)(j) prohibits

constitutionally protected speech.21 Because the statute reaches constitutionally

protected speech, we “must determine whether it does so in a way that is

unconstitutionally overbroad.”22 The answer to this question requires analysis of

the appropriate level of scrutiny. There are a variety of approaches to overbreadth



       20  The court did not instruct the jury on the other statutory definitions of
“threat” in ROW 9A.04.1 1O(28)(a)-(i). Because our analysis under (j) is
determinafive, we decline to address arguments from Dawley and amicus based
on the other definitions of “threat.”
       21 See Resp’t’s Br. at 21 (“The State concedes ROW 9A.04.1 10(28)(j) does

proscribe some protected speech because it does not proscribe only true
threats.”).
       22 Williams, 144 Wn.2d at 209.




                                                8
No. 77982-6-1/9



analysis,23 but it is clear there are certain critical considerations, many of which are

not in dispute here.

       The level of scrutiny we apply depends on the nature of the speech and the

nature of the restriction. It may also depend on whether the statute restricts

conduct or pure speech. In its brief, the State argues, “The crime of intimidating a

public servant is not a crime of pure speech” because it “includes not only a threat,

but importantly an intent to influence a public servant.”24 And because intimidating

a public servant includes the intent to influence, “[t]his takes the crime out of [the]

realm of pure speech.”25 But at oral argument, the State acknowledged the

additional intent element is not a form of conduct. We conclude RCW 9A.76.1 80

regulates pure speech.




       23 See Richard H. Fallon, Making Sense of Overbreadth, 100 YALE L.J. 853
(1991); Luke Meier, A Broad Attack on Overbreadth, 40 VAL. U. L. REV. 113
(2005); Matthew D. Bunker, Clay Calvert, William C. Nevin, Strict in Theory, But
Feeble in Fact? First Amendment Strict Scrutiny and the Protection of Speech, 16
COMM. L. & P0L’Y 349 (2011). State v. Homan, 191 Wn. App. 759, 767-70, 364
P.3d 839 (2015), offers a thoughtful framework for overbreadth analysis: “We
engage in a four-part analysis to determine whether a law is facially overbroad
under the First Amendment. First, we must determine whether the challenged law
actually prohibits speech. .   Second, we must determine the legitimate sweep of
                               .   .


the challenged law—whether the law legitimately prohibits certain speech.       .   .


Third, we must determine whether the challenged law also prohibits
constitutionally protected speech.     Fourth, we must determine whether the
                                       .   .   .


challenged law prohibits a substantial amount of such speech.” (Citations omitted.)
       24 Resp’t’s Br. at 27.

      25    Id.




                                                   9
No. 77982-6-1/10



       When, as here, a statute regulates pure speech, the statute “‘must be

interpreted with the commands of the First Amendment clearly in mind.”26 A

statute regulating pure speech is unconstitutionally overbroad if it restricts a

substantial amount of protected speech.27

       The level of scrutiny may also depend on whether a restriction is content-

based or content-neutral. Here, the State does not dispute that RCW 9A.76.180 is

a content-based restriction. We agree because the statute specifically criminalizes

speech intended to influence a public servant. “Content-based restrictions on

speech are presumptively unconstitutional and are thus subject to strict

scrutiny.”28 We conclude RCW 9A.76.180 is subject to strict scrutiny.

       “[Sitrict scrutiny requires a statute be narrowly tailored to serve a

compelling state interest.”29 Thus, to overcome Dawley’s overbreadth challenge,

the State must establish the intimidating a public servant statute is necessary to

serve a compelling state interest and the statute is narrowly tailored to achieve

that purpose.

      As to the state interest served, the intimidating a public servant statute

“protects public servants from threats of substantial harm” and it “protects the



      26 Williams, 144 Wn.2d at 206-07 (quoting Watts v. United States, 394 U.S.
705, 707, 89 5. Ct. 1399, 22 L. Ed. 2d 664 (1969)).
      27 City of Seattle v. Huff, 111 Wn.2d 923, 925, 767 P.2d 572 (1989).

      28 Williams, 144 Wn.2d at 208 (quoting Collier v. City of Tacoma, 121
Wn.2d 737, 748-49, 854 P.2d 1046 (1993)).
      29 kI. at 211.




                                          10
No. 77982-6-I/li



public’s interest in a fair and independent decision-making process.”3°

Additionally, RCW 9A.76.180 deters “the intimidation and threats that lead to

corrupt decision making, it helps maintain public confidence in democratic

institutions.”31 These government interests are compelling. The harder question is

whether the statute is narrowly tailored to achieve these interests.

       The only Washington case directly addressing the constitutionality of

RCW 9A.76.180 is State v. Stephenson.32 In Stephenson, as in this case, the

definition of “threat” in RCW 9A.04.i 10(28)(j), then codified as .110(25)0), was the

only definition at issue. The Stephenson court first concluded,

“ROW 9A.04.1i0(25)(j)’s prohibitions encompass a ‘real and substantial’ amount

of protected speech.”33 We agree.

       In addition to true threats, the statutory definition of “threat” in

RCW 9A.04.110(28)(j) sweeps up a substantial amount of protected speech,

including criticism, commentary, and even political hyperbole34 towards and about


       ~°   State v. Stephenson, 89 Wn. App. 794, 803-04, 950 P.2d 38 (1998).
       31   kcl. at 804.
       3289 Wn. App. 794, 950 P.2d 38 (1998).
       33k1.at802.
       ~ A broad range of political hyperbole can be protected speech. See State
v. Strong, 167 Wn. App. 206, 216 nI, 272 P.3d 281 (2012) (discussing Watts v.
United States, 394 U.S. 705, 706, 89 S. Ct. 1399, 22 L. Ed. 2d 664 (1969) (United
States Supreme Court reversal of conviction for threatening President Lyndon B.
Johnson. Watts stated, “If they ever make me carry a rifle[,] the first man I want to
get in my sights is L.B.J.” The Court concluded that because the challenged
statute regulated pure speech, it must distinguish political hyperbole and true
threats.)).



                                            11
No. 77982-6-1/12



public servants.35 Such political speech is at the core of First Amendment

protection “no matter how vehement, caustic and sometimes unpleasantly

sharp. “36

        In Stephenson, the court determined, “The public’s interest in open and fair

government decision making provides a     .    .   .   compelling justification for an

incidental limitation of protected speech.”37 The court concluded the limitation was

incidental because the challenge involved onlyone subsection of the threat

definition, any threat “must be substantial, not threats that merely embarrass or

inconvenience their target,” and the intimidation statute required a specific state of




        ~ Dawley offers several examples of protected speech swept up by
subsection (j). ~ Appellant’s Br. at 28 (“The ‘threats’ included in
RCW 9A.04. 11 O(28)[(j)] include. an attorney who threatens to run for office
                                  .   .


against a mayor if she persists with homeless encampment sweeps             [o]r, a
                                                                                .   .   .   .


bar investigator who threatens to bring a disciplinary action against an attorney
general if she does not cease revealing privileged client communications.”).
Amicus also offers several examples. See Amicus Br. at 6 (“For example,
ROW 9A.04.1 1 O(28)(d) or (j) is broad enough to cover threatening to sue or bring
charges against an officer if they do not cease an arrest where the arrestee
believes the officer is violating their civil rights.”).
       36 The United States Supreme Court has recognized our “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, 84 S. Ct. 710, 11 L. Ed. 2d 686
(1964).
       ~ Stephenson, 89 Wn. App. at 806.




                                          12
No. 77982-6-1113



mind.38 ‘[A] critical element of the statute here is the requirement that the

defendant ‘attempt to influence’ the targeted public servant’s behavior.”39

       Although the Stephenson court initially identified the incorrect level of

scrutiny,40 the court’s final conclusion touched on the appropriate level of strict



         Id. at 807.
       ~ Id.
       40 In considering whether the prohibition was constitutionally permissible,
the Stephenson court incorrectly engaged in forum analysis, utilizing the nonpublic
government forum level of scrutiny rather than the heightened level of scrutiny
applicable to private communications not occurring on any form of government
property. “Generally, when a free speech challenge arises in regard to activity on
property owned and controlled by the government, a court will engage in a ‘forum
analysis’ to determine the level of judicial scrutiny that applies.” Bradburn v. North
Cent. Req’l Library Dist., 168 Wn.2d 789, 813, 231 P.3d 166 (2010) (emphasis
added). Forum analysis looks at whether the speech occurs in a government-
owned public forum, limited-public forum, or a nonpublic forum. Sprague v.
Spokane Valley Fire Dep’t, 189 Wn.2d 858, 878-79, 409 P.3d 160 (2018). “The
governmental regulation of speech in a nonpublic forum does not violate the First
Amendment if ‘the distinctions drawn are reasonable in light of the purpose served
by the forum and are viewpoint-neutral” Stephenson, 89 Wn. App. at 803 (quoting
City of Seattle v. Eze, 111 Wn.2d 22, 32, 759 P.2d 366 (1988)). On the other
hand, the appropriate level of scrutiny for speech on private property is whether
the regulation was narrowly tailored to serve a compelling government interest.
        In Huff, 186 Wn.2d 210, 375 P.3d 1056 (2016), our Supreme Court applied
forum analysis to an overbreadth challenge to a Seattle telephone harassment
ordinance. The court ultimately applied the nonpublic forum standard of scrutiny
to telephone communication. A law restricting communication in a nonpublic
forum is subject to the lowest level of scrutiny, whereas a law restricting
communication in a public forum is subject to heightened scrutiny because the
“principal purpose of traditional public forum is the free exchange of ideas.”
Cornelius v. NAACP Legal Def. and Educ. Fund, 473 U.S. 788, 800, 105 S. Ct.
3439, 87 L. Ed. 2d 567 (1985). fj~f~ has been criticized for “applying the nonpublic
forum doctrine to devalue speech occurring on private property.” Aaron H.
Caplan, Stretching the Equal Access Beyond Equal Access, 27 SEATTLE U.L. REV.
273, 362 (2003); see also Aaron H. Caplan, Invasion of the Public Forum Doctrine,
46 WILLAMETTE L. REV. 647, 658 (2010). We conclude forum analysis is not



                                          13
No. 77982-6-1/14



scrutiny for speech occurring on private property. “Considering the State’s

compelling interest in maintaining the integrity of government action and the

narrow tailoring of the statute, we conclude that the challenged statute is

reasonable in light of its purposes and is not unconstitutionally overbroad.”41

       We disagree with the Stephenson court’s conclusions that the intimidating a

public servant statute involves only incidental restrictions and that the statute is

narrowly tailored. As discussed above, the statutory definition of “threat” in section

RCW 9A.04.11O(28)(j) goes beyond true threats and sweeps up a substantial

amount of protected speech, including political speech at the core of First

Amendment protection. The statute impacts a substantial amount of protected

speech and is not narrowly tailored. Thus, the intimidating a public servant

statute, when based on RCW 9A.04.110(28)(j), is unconstitutionally overbroad.

       However, “‘[a] statute or ordinance will be overturned only if the court is

unable to place a sufficiently limiting construction on a standardless sweep of



applicable to this case. Despite any confusion in JJ~ff and Stephenson, it is clear
that forum analysis applies only to speech occurring on government property.
        41 Stephenson, 89 Wn. App. at 807. In State v. Montano, our Supreme
Court addressed the question “whether sufficient evidence existed that Montano
intended his threats [to a public servant] to influence an official action.” 169 Wn.2d
872, 876, 239 P.3d 360 (2010). Our Supreme Court cited Stephenson and
approved the observation that “the attempt to influence’ element of the crime
cannot be satisfied by threats alone.  .   [Tic convict a person of intimidating a
                                           .   .


public servant, there must be some evidence suggesting an attempt to influence,
aside from the threats themselves or the defendant’s generalized anger at the
circumstances.” j4~ at 877. Despite our Supreme Court’s general approval of the
logic of Stephenson, in Montano, the court did not address whether the
intimidating a public servant statute was unconstitutionally overbroad.



                                                   14
No. 77982-6-1115



legislation.”42 Dawley argues that only a true threats limitation can save this

statute when the jury is instructed on a threat solely under RCW 9A.04.1 10(28)0).

We agree. By limiting the statute to true threats, no protected speech is

implicated.

       We are not persuaded to adopt a more relaxed limitation, such as the

“inherently wrongful” limitation from State v. Paulinci.43 In Pauling, our Supreme

Court considered an overbreadth challenge to former ROW 9A.56.130 (1975), the

second degree extortion statute. That statute provided, “A person is guilty of

extortion in the second degree if he commits extortion by means of a threat as

defined in then RCW 9A.04.1 10(25)(d) through      0).” The court concluded the
statute prohibited “a real and substantial amount of protected speech that the

government may not infringe upon.”44

       But our Supreme Court determined it was “unnecessary to strike [the

extortion statute] because we may impose a limiting construction in the form of a

requirement that there be a ‘lack of nexus’ that limits its application to only

unprotected speech.”45 According to Pauling, in the context of extortion, a threat is

“inherently wrongful” if there is no nexus between the threat itself and the property

the threat attempts to gain.

       42Immelt, 173 Wn.2d at 6-7 (quoting City of Tacoma v. Luvene, 118 Wn.2d
826, 840, 827 P.2d 1374 (1992)).
       ~~149 Wn.2d 381,391,69 P.3d 331 (2003).
       44k1.at389.
            ki. at 391 (emphasis added).



                                           15
No. 77982-6-1/16



       The “inherently wrongful” threat limitation utilized in Pauling is not

appropriate in this case because the crime of extortion is fundamentally different

from the crime of intimidating a public servant. Extortion is an extension of theft.46

Unlike intimidating a public servant, extortion is a mixed conduct and speech

crime.47 When a statute regulates mixed conduct and speech, “a sufficiently

important governmental interest in regulating the nonspeech element can justify

incidental limitations on First Amendment freedoms.”48

       And in the case of pure speech regulation, the statute is unconstitutionally

overbroad if it prohibits a substantial amount of protected speech. Even if the

government has a compelling interest, the statute must be narrowly tailored to

achieve that purpose.49 Unlike Pauling and the second degree extortion statute,

an “inherently wrongful” limitation would not limit RCW 9A.76.180 to “only

unprotected speech.”5° No matter the motive behind an individual’s attempt to

influence a public servant’s vote, opinion, decision, or other official action as a

public servant, such pure political speech is at the core of the First Amendment

and necessarily subject to heightened protection. The “inherently wrongful”


       46 See Stroncj, 167 Wn. App. at 214 (“[E}xtortion requires the unlawful
compelling of the victim to give up property; it is an extension of theft.”).
        ~ ich (“The central importance to the crime of nonspeech conduct—the
wrongful acquisition or attempted acquisition of another’s property—takes
extortion outside the category of pure speech.”).
       48ki.at215.
      ~Huff, 111 Wn.2d at 925.
      50 Pauling, 149 Wn.2d at 391.




                                          16
No. 77982-6-1/17



limitation is inapplicable to pure political speech. We agree with Dawley. The only

constitutionally permissible limiting construction to save the intimidating a public

servant statute when the jury is instructed on the definition of “threat” from

RCW 9A.04.1 10 (28)0) is to limit the statute to true threats alone.

       The State concedes, and we agree, Dawley did not issue a true threat

against either Chief Dresker or Esparza. He made no serious expression of

intention to inflict bodily harm upon or to take the life of another individual.

Because there is insufficient evidence to support Dawley’s convictions for

intimidation of a public servant, we do not address Dawley’s alternative

arguments.

       We reverse Dawley’s convictions for intimidation of a public servant and

remand for proceedings consistent with this opinion.




                                                                ‘I
                                                            LaF ~
WE CONCUR:




                  d                                ______
