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iLaw Dictionary
California
Law Dictionary
Tort Extortion Penal Code Section 519

(
Flatley v. Mauro)

 

Tort Extortion Penal Code Section 519
(Flatley v. Mauro)

 Normally, conduct of the type engaged in by Mr. Mauro falls within the protective provisions of section 425.16.  (See Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115 [“communications preparatory to or in anticipation of the bringing of an action or other official proceeding” are protected under section 425.16]; Kashian v. Harriman, supra, 98 Cal.App.4th at p. 908 [filing a lawsuit]; Shekhter v. Financial Indemnity Co., supra, 89 Cal.App.4th at p. 153 [attorney’s use of the media is entitled to protection under section 425.16].)  The problem is that Mr. Mauro went further than threatening to file a lawsuit and then disseminate the information about the complaint to journalists.  Rather, in addition to the threatened lawsuit and media exposure, Mr. Mauro threatened criminal prosecution or publication of defamatory matter about the rape as a means of obtaining leverage in the proposed civil action if “seven figures” was not paid.  The quid pro quo for the payment of any money was silence.  Defendant does not dispute he sent the letter or made demands for payment in exchange for silence.  He only disputes whether this is extortion.  It is undisputed or effectively conceded Mr. Mauro orally and in writing demanded at least $1 million in exchange for silence.

            The threat of criminal prosecution and to publish defamatory matters in order to induce payment of money is extortion under California law.  (Pen. Code §§ 518,[3] 519[4]; People v. Goldstein (1948) 84 Cal.App.2d 581, 586-587 [threat to have party arrested and publish defamatory matter unless money is paid by a certain date followed by telephone threats is attempted extortion regardless of whether victim actually committed any crime].)  Federal courts have consistently held that extortion is not a constitutionally protected form of speech.  (See R.A.V. v. City of St. Paul (1992) 505 U.S. 377, 420 (con.opn. of Stevens, J. quoting Frederick Schauer, Categories and the First Amendment: A Play in Three Acts, 34 Vand. L.Rev. 265, 270 (1981)) [“Although the First Amendment broadly protects ‘speech,’ it does not protect the right to ‘fix prices, breach contracts, make false warranties, place bets with bookies, threaten, [or] extort.’”]; see also Giboney v. Empire Storage & Ice Co. (1949) 336 U.S. 490, 502 [“But it has never been deemed an abridgement of freedom of speech . . . to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language, either spoken, written, or printed”]; United States v. Hutson (9th Cir. 1988) 843 F.2d 1232, 1235 [It “is undoubtedly within the government’s power to prohibit” extortionate speech]; United States v. Quinn (5th Cir.1975) 514 F.2d 1250, 1268 [“It may categorically be stated that extortionate speech has no more constitutional protection than that uttered by a robber while ordering his victim to hand over the money, which is no protection at all”]; United States v. Marchetti (4th Cir. 1972) 466 F.2d 1309, 1314, [“Threats and bribes are not protected simply because they are written or spoken; extortion is a crime although it is verbal”].) 

            Likewise, in California, speech which qualifies as a criminal threats is not constitutionally protected.  (Pen. Code §§ 518, 519.)  The California Supreme Court has held:  “‘[T]he state may penalize threats, even those consisting of pure speech, provided the relevant statute singles out for punishment threats falling outside the scope of the First Amendment protection.  [Citations.]  In this context, the goal of the First Amendment is to protect expression that engages in some fashion in public dialogue, that is “‘communication in which the participants seek to persuade, or are persuaded; communication which is about changing or maintaining beliefs, or taking or refusing to take action on the basis of one’s beliefs . . . .’”  [Citations.]  As speech strays further from the values of persuasion, dialogue and free exchange of ideas, and moves toward willful threats to perform illegal acts, the state has greater latitude to regulate expression . . . .’”  (People v. Toledo (2001) 26 Cal.4th 221, 233, quoting In re M.S. (1995) 10 Cal.4th 698, 710.)  Moreover, lawyers in California[5] and Illinois[6] are also specifically precluded from threatening criminal prosecution as a means of obtaining leverage in a civil action by their respective Rules of Professional Conduct. 

            Mr. Mauro’s written and oral threats to report plaintiff’s alleged rape to various state, federal, and international authorities were not protected speech.  Rather, his statements were clearly prohibited by the Penal Code, the California Rules of Professional Conduct, and the Illinois Rules of Professional Conduct.  A threat to accuse someone of a crime or of injury with the intent to extort money or obtain a pecuniary advantage is not a “protected activity” under federal or state law.  (R.A.V. v. City of St. Paul, supra, 505 U.S. at p. 420 (conc. opn. of Stevens, J.); Pen. Code §§ 518, 519; People v. Goldstein, supra, 84 Cal.App.2d at pp. 586-587.) 

            Mr. Mauro has effectively conceded and it is undisputed his speech and conduct are crimes.  No prima facie showing has been made that Mr. Mauro’s speech and conduct are anything other than unprotected acts of extortion.  As a matter of law, Mr. Mauro’s speech and conducted are not protected by our Constitutions.  Hence, the burden of proof never shifted to plaintiff to demonstrate his claims have minimal merit.  But we do note that plaintiff’s unequivocal under oath denial that Ms. Robertson was sexually assaulted is unrebutted in this court.  We need not address defendant’s other contentions.

 

Penal Code section 519 provides: “Fear, such as will constitute extortion, may be induced by a threat,

Flatley v. Mauro-B171570-9/2/04-CA2/5-Extortion

Sep 02 2004 B171570
[PDF] [DOC]
Flatley v. Mauro 9/2/04 CA2/5 Detailed case information

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