Outside the Beltway

Federal Appeals Court: Threatening To Kill Then-Candidate Obama Is Protected Speech

What constitutes a true threat?

Doug Mataconis · Tuesday, July 19, 2011 · 7 comments

A decision from the 9th Circuit Court of Appeals that is likely to leave many people scratching their heads:

A Southern California man was wrongly convicted of online threats against Barack Obama two weeks before Obama was voted president in the November 2008 elections, a divided federal appeals court ruled Tuesday.

“Re: Obama fk the niggar, he will have a 50 cal in the head soon,” read one of the messages posted on the Yahoo finance site by Walter Bagdasarian.

About 20 minutes later, Bagdasarian posted another statement after 1 a.m. on October 22. “Shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos.”

After Secret Service agents traced the remarks to him when a message board member tipped them off, Bagdasarian was found guilty of two counts of criminal threats to a presidential candidate. The La Mesa man was sentenced to two months in a halfway house. He appealed.

The 9th U.S. Circuit Court of Appeals in San Francisco concluded that Bagdasarian’s statements were “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”, the appeals court wrote

The Court’s opinion, embedded below, deals mainly with the statute in question and an exception to the First Amendment called the “true threats” doctrine, which Eugene Volokh summarizes over at The Volokh Conspiracy in his post on the case:

The federal statute under which Bagdasarian was indicted, 18 U.S.C. § 879(a)(3), makes it a crime to “knowingly and willfully threaten[ ] to kill, kidnap, or inflict bodily harm upon . . . a major candidate for the office of President or Vice President, or a member of the immediate family of  such candidate.” A statute like § 879, “which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind.” Watts v.United States, 394 U.S. 705, 707 (1969) Although the State cannot criminalize constitutionally protected speech, the First Amendment does not immunize “true threats.” Id. at 708. The  Court held in Virginia v. Black, 538 U.S. 343 (2003), that under the First Amendment the State can punish threatening expression, but only if the “speaker means to communicate a serious expression of an intent to commit an act of unlawful volence to a particular individual or group of individuals.” Id. at 359. It is therefore not sufficient that objective observers  would reasonably perceive such speech as a threat of injury or death.

(…)

Neither statement constitutes a threat in the ordinary meaning of the word: “an expression of an intention to inflict . . . injury . . . on another.” Webster’s Third New International Dictionary 2382 (1976). The “Obama fk the niggar” statement is a prediction that Obama “will have a 50 cal in the head soo n.” It conveys no explicit or implicit threat on the part of Bagdasarian that he himself will kill or injure Obama. Nor does the second statement impart a threat. “[S]hoot the nig” is instead an imperative intended to encourage others to yake violent action, if not simply an expression of rage or frustration. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President.

It is difficult to see how a rational trier of fact could reasonably have found that either statement, on its face or taken in context, expresses a threat against Obama by Bagdasarian. There is no disputing that neither of Bagdasarian’s statements was conditional and that both were alarming and dangerous. The first statement, which referred to Obama as a “niggar” who “will have a 50 cal in the head soon,” coupled a racial slur with an assassination forecast during a highly controversial campaign that would ultimately make Obama the country’s first black president. No less troubling is the defendant’s second statement imploring others to “shoot the nig,” lest the “country [be] fkd for another 4  years+” because “never in history” has a black person “done ANYTHING  right.” 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. 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.

In dissent, Judge Wardlaw pointed out that the threats were hardly innocuous:

As the district court found, Mr. Bagdasarian’s posts were not casual one-off comments. When other participants confronted him with the gravity of starting a thread labeled “shoot the nig” by indicating they were reporting him and that law enforcement was monitoring him, he evidenced his own belief that his posts were threatening. First, he wanted to know “which [law enforcement] agency” was monitoring the message board. Then he began to make excuses for his threatening comments, posting: “Listen up, crybaby ole white boy, I was drunk.”

Mr. Bagdasarian had imbibed some alcohol that night, but it did not prevent him from tracking the conversations occurring on multiple threads and posting responses over a seven hour period. Moreover, his postings that night were specific,relevant to the context of each thread and even included wordplay. If anything, his intake of “vino,” as he described it, may have lowered his inhibitions sufficiently that he was in fact posting his genuinely held views about Obama, including a true expression of his intent to threaten the candidate with harm. As the district court found, that Mr. Bagdasarian was drinking does not make his statements any less threatening than they were at the time he made them, and his 8:00 a.m posting that he was drunk when he started the “shoot the nig” thread at 1:35 a.m. that morning only indicates that he woke up to realize the serious nature of his threats.

Eugene Volokh comments:

My sense, by the way, is that there’s a good chance that the Ninth Circuit will rehear the case en banc, given the subject matter of the case, the presence of a forceful dissent, and the tension among some past Ninth Circuit precedents about true threats, which can lead other judges to see the panel opinion as not fully consistent with some of those precedents. And if the Ninth Circuit doesn’t do this, and the federal government petitions for certiorari, there is a good chance that the Supreme Court will agree to hear the case, given the disagreement between the lower court and the Executive Branch, the uncertainty among lower courts about how to read Virginia v. Black (see the paragraph beginning with “Third” above), and the subject matter of the case.

I would tend to agree with Volokh here. Given the nature of the threats and the fact that there were, as the dissent does a better job of reminding us than the majority, additional threats and conduct both before and after the posts in question, it seems that these were clearly intended to be a genuine threat against Obama and not just some drunken rant on the Internet. Bagdasarian doesn’t strike me as someone who might have been capable of carrying out a threat against the President-Elect in 2008, but the statute doesn’t require that. He crossed a line, and the Court of Appeals got this one wrong.

Here’s the opinion:

United States v. Bagdasarian