Postings by an anonymous message board commentator predicting and encouraging the assassination of a presidential candidate do not qualify as true threats capable of criminalization, a federal appeals court ruled Tuesday.
A divided U.S. Court of Appeals in San Francisco (9th Cir.) panel voted 2-1 in United States v. Bagdasarian to reverse the conviction of Walter Bagdasarian after he posted threatening messages against Barack Obama on the Internet two weeks before the 2008 presidential election.
Bagdasarian was found guilty on two counts of threatening to “kill or do bodily harm to a major presidential candidate” for two separate messages he posted on a Yahoo financial message board. He appealed the conviction.
The appeals court ruled yesterday, on statutory and First Amendment grounds, that the statements did not reflect either the subjective or objective intent to seriously threaten a presidential candidate that was necessary to criminalize pure speech.
At about 1:15 a.m. on Oct. 22, 2008, Bagdasarian posted on a Yahoo message board under the username “californiaradial”: “Re: Obama fk the niggar, he will have a .50 cal in the head soon.” Twenty minutes later, the same user also posted: “shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos.”
A retired Air Force officer reported Bagdasarian’s second statement to authorities because he believed Obama could have been in danger. Once the Secret Service tracked Bagadasarian down, he admitted to posting the messages.
While executing a search warrant of his home, authorities found six firearms, including a .50 caliber rifle with ammunition. They also found emails from Election Day that referenced a potential assassination of Obama.
Bagdasarian was indicted in January 2009 and found guilty on both counts by a district judge.
The Ninth Circuit reversed the lower court's conviction, ruling that the government failed to prove either the subjective or objective intent necessary to criminalize pure speech.
On constitutional grounds, the court pointed to Virginia v. Black, which set the subjective requirement that the state can punish threatening expression only if the “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.”
In addition, the court said the particular threat statute at issue also required an objective showing that a statement must be understood by the average person to be a serious expression of intent to kill or injure a major candidate for president.
The government did not meet these standards, the court ruled. “These statements are particularly repugnant because they directly encourage violence. We nevertheless hold that neither of them constitutes an offense within the meaning of the threat statute under which Bagdasarian was convicted,” Judge Stephen Reinhardt said for the majority.
Reinhardt noted the threat statute does not criminalize predictions or exhortations to other people to injure or kill the president, but he acknowledged potential problems this may cause.
“There are many unstable individuals in this nation to whom assault weapons and other firearms are readily available, some of whom might believe that they were doing the nation a service were they to follow Bagdasarian’s commandment,” he said. “There is nevertheless insufficient evidence that either statement constituted a threat or would be construed by a reasonable person as a genuine threat by Bagdasarian against Obama.”
Judge Kim McClane Wardlaw concurred with the analysis of the law of “true threats,” but dissented in the ruling that there was not enough evidence to convict Bagdasarian.
"Because there is sufficient evidence supporting a finding of objective intent, and because . . . the subjective intent requirement is also met, I conclude there is sufficient evidence to find Mr. Bagdasarian guilty of threatening harm against then-presidential candidate Barack Obama," she said.
Wardlaw's opinion said true threats must be analyzed in their full context, which she said the majority failed to do.
“[The majority] fails to consider the ominous backdrop of America’s history of racial violence, the uniquely racial and violent undercurrents of the 2008 presidential election, the entirety of Mr. Bagdasarian’s postings on October 22, two weeks before the 2008 election, and the listeners who not only perceived the posts as threatening when they were made, but who acted on that perception,” she said.
Wardlow also said, contrary to the majority’s opinion, the government need not prove Bagdasarian “himself will kill,” but only demonstrate his intent to threaten.
“We do not require that the speaker in a threats case explicitly threaten that he himself is going to injure or kill the intended victim; rather we examine the surrounding circumstances to determine whether a reasonable person win the speaker’s shoes would foresee that his statements would be perceived as threats.”