Thunder Studios, Inc. v. Charif Kazal, 13 F.4th 736

Background

Business dispute among Australian partners (Kazal brothers and Rodric David) over Emergent Capital and Global Renewables led to long-running litigation and acrimony; David relocated to Los Angeles and founded Thunder Studios.
From abroad, Tony and Adam Kazal ran a campaign aimed at David and his Los Angeles businesses: mass emails, websites accusing him of crimes and Hezbollah ties, hired protestors and a van with messages circulating in L.A., and employed a local private investigator.
David and Thunder Studios sued the Kazals in federal district court in Los Angeles, alleging copyright infringement and stalking under Cal. Civ. Code § 1708.7; a jury found Tony and Adam liable for stalking and awarded compensatory and punitive damages.
The district court denied JMOL and post-trial relief, concluding a reasonable jury could view the conduct as unprotected threats; Tony and Adam appealed the stalking verdict (Count Two).
The Ninth Circuit (majority) held (1) the First Amendment applies to foreign speakers whose communications are directed to and received by U.S. residents, and (2) on independent review the Kazals’ emails, websites, protests, and van advertising did not constitute “true threats,” so their conduct was constitutionally protected and excluded from Cal. Civ. Code § 1708.7’s stalking definition; the court reversed and remanded to set aside the stalking judgment.

Issues

Issue	Plaintiff's Argument (David)	Defendant's Argument (Kazal)	Held
Does the First Amendment apply to foreign non-residents who communicated from abroad to a U.S. audience?	Foreign speakers outside U.S. should not invoke First Amendment; Kazals lack sufficient ties.	First Amendment protects both speaker and recipient; domestic audience gives protection even if speaker abroad.	First Amendment applies to the Kazals’ speech directed at California recipients.
Did the Kazals’ communications and protest activities constitute unprotected "true threats"?	Communications and campaign created a pattern reasonably interpreted as threats causing fear/distress.	Speech, emails, tweets, protests and advertising were political/public advocacy, not serious threats of violence.	On de novo review, communications did not meet objective or subjective true‑threat standards; not unprotected.
Were the Kazals’ California activities a "pattern of conduct" under Cal. Civ. Code § 1708.7 (stalking), or excluded as "constitutionally protected activity"?	The pattern (emails, surveillance, van, protests) satisfied the statute and harmed David.	The activities are protected speech/protest and thus excluded from the statute’s definition of pattern.	Because conduct was protected speech (not true threats), it falls within the statute’s exclusion; no stalking pattern supports judgment.
Do non-speech exceptions (e.g., extortion) or licensed‑investigator surveillance escape First Amendment protection?	Adam’s demand for payment and threats to expand campaign were extortionate/unprotected; PI surveillance was coercive.	The payment demand was rhetorical; private investigator’s lawful surveillance is excluded by statute.	Extortion argument was not tried/instructed below and evidence was equivocal; PI surveillance (prior covert activity) is statutorily excluded but not dispositive for the stalking verdict.

Key Cases Cited

Bose Corp. v. Consumers Union of United States, 466 U.S. 485 (1984) (federal courts perform independent review of constitutional facts in First Amendment cases)
New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (First Amendment principles protecting speech about public affairs)
Stanley v. Georgia, 394 U.S. 557 (1969) (First Amendment protects the right to receive information)
Lamont v. Postmaster General, 381 U.S. 301 (1965) (government may not control flow of ideas from abroad to domestic audience)
Kleindienst v. Mandel, 408 U.S. 753 (1972) (limits on right‑to‑receive when government excludes foreign speaker from entry for immigration reasons)
Packingham v. North Carolina, 137 S. Ct. 1730 (2017) (internet forums, including email/social media, are protected speech channels)
Reno v. American Civil Liberties Union, 521 U.S. 844 (1997) (online speech enjoys First Amendment protection)
Virginia v. Black, 538 U.S. 343 (2003) (definition of "true threats" and context for threatening conduct)
Planned Parenthood of Columbia/Willamette v. American Coalition of Life Activists, 290 F.3d 1058 (9th Cir. en banc 2002) (contextual analysis of true threats and speaker/audience reaction)
United States v. Verdugo‑Urquidez, 494 U.S. 259 (1990) (constitutional rights generally extend to those with sufficient voluntary connection to the U.S.)
Agency for Int’l Dev. v. Alliance for Open Soc’y Int’l, 140 S. Ct. 2082 (2020) (limitations on extraterritorial application of constitutional protections to foreign organizations/speakers)
Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008) (context can render provocative speech satiric/hyperbolic and protected)