Submitted by Gene Howington, Guest Blogger
Two years ago, a district court found Walter Bagdasarian guilty of threatening then-candidate Obama because of the following statements made to a Yahoo.com financial website (warning – racist and coarse language):
“Re: Obama fk the niggar, he will have a 50 cal in his head soon” and “shoot the nig”.
Bagdasarian was convicted under 18 U.S.C. § 879: Threats against former Presidents and certain other persons, which reads in relevant part: “(a) Whoever knowingly and willfully threatens to kill, kidnap, or inflict bodily harm upon; (3) a major candidate for the office of President or Vice President, or a member of the immediate family of such candidate; shall be fined under this title or imprisoned not more than 5 years, or both.” But did what Bagdasarian said constitute a threat or not? A divided panel of the U.S. 9th Circuit Court of Appeals didn’t think so and on Tuesday, they overturned his conviction. The majority reasoning is quite convincing as to why Bagdasarian’s comments were protected free speech.
In the majority opinion written by Judge Stephen Reinhardt (joined by Chief Judge Alex Kozinski, Judge Kim McLane Wardlaw dissented), the court held that the statute doesn’t criminalize “predictions or exhortations to others to injure or kill the president”.
“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.
 When our law punishes words, we must examine the surrounding circumstances to discern the significance of those words’ utterance, but must not distort or embellish their plain meaning so that the law may reach them. Here, the meaning of the words is absolutely plain. They do not constitute a threat and do not fall within the offense punished by the statute.”
In discussing what constituted a reasonable person and their interpretations of Bagdasarian’s statements as threats, the court noted that “[t]he only possible evidence that Bagdasarian’s statements might reasonably be interpreted as a threat was that three or four discussion board members wrote that they planned to alert authorities to the postings, although only one reader actually did. The court of appeals failed to see why the fact that several people had negative reactions to the messages should be taken to mean that they or others interpreted them as a threat.  And, with respect to Bagdasarian’s statement that Obama “will have a 50 cal in the head soon,” although Bagdasarian actually had .50 caliber weapons and ammunition in his home, nobody who read the message board postings knew that, so those facts, under an objective test, had a bearing on whether Bagdasarian’s statements might reasonably be interpreted as a threat by a reasonable person in the position of those who saw his postings on the discussion board.
 Considering § 879’s required proof of a subjective intent to make a threat, because one of Bagdasarian’s statements was predictive in nature and the other exhortatory, the evidence was not sufficient for any reasonable finder of fact to have concluded beyond a reasonable doubt that Bagdasarian intended that his statements be taken as threats. As a matter of law, neither statement could be held to constitute a true threat.”
While Bagdasarian’s comments were racially offensive, they were objectively and subjectively not threats either. As Judge Reinhardt noted, “When our law punishes words, we must examine the surrounding circumstances to discern the significance of those words’ utterance, but must not distort or embellish their plain meaning so that the law may reach them”. Offensive to the sensibilites of of some (or indeed the many) is not an excuse for infringing upon the Right of Free Speech. While people of good conscience may not like what Bagdasarian said, it is a triumph for the 1st Amendment that he is allowed to say it when it is merely prediction or exhortation and not an actual threat proper. What do you think?