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.
[5] 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. [7] 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.
[8] 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?
Source(s): L.A. Times, U.S. v. BAGDASARIAN (.pdf format), 18 U.S.C. § 879
I may not like what he said…..but…right now he is free to say it….A quandary I do post is…what if he had said the same thing on an air plane…I wonder if the result would be different?
If a republican were threatened in that manner, he’d be buried under the jail.
Mike Spindell,
I agree. Notwithstanding my party affiliation, I despise both Gingrich and Bachmann—just as I do Mr. Obama and Mr. Bush. However, I would never what anyone to harm them. Alternatively, as the war criminals I think they are, Obama and Bush et al. should be imprisoned, although we know that will most likely never happen. Such freedom of speech is critical.
“You might consider ‘signing’ your name at the end of each guest essay”
FFLEO,
Good suggestion I’ll try to follow it.
As far as the topic at hand, what this man wrote was disturbing and disgusting. Yet it was merely predictive. We cannot let our right to express ourselves be impinged, if only a little. Think about it in another context. What could be done to many of us if free speech were eroded? None of us
regulars have threatened anyone, but we certainly have expressed many strong opinions about let’s say Gingrich and Bachmann. How would are statements be viewed if either one became President?
Raff,
In the opinion, the court noted that although Bagdasarian owned a .50 cal and ammo, that none of the other posters or readers had reason to know this and thus it could not be considered as lending weight to a reasonable apprehension of threat. If he’d been running around the board boasting about his .50 cal, I’m sure it would have been a different story.
Thanks Gene. I understand the free speech arguments and logic, but doesn’t his possession of the .50 cal ammo make this Predictive threat more dangerous than mere speech?
Raff,
Maybe. The guy would have gotten a look at by the Secret Service once they got a call irregardless. However, I think it’s likely that the inflammatory racial language here (could have) probably tipped this case in favor of prosecution instead of a stern talking to.
FFLEO,
Duly noted. 🙂
Gene H.
Good topic; good ruling by the 9th panel.
You might consider ‘signing’ your name at the end of each guest essay (valediction) in addition to the opening bolded: Submitted by xxxx Guest Blogger. That seems to notify readers again–who might otherwise miss the introductory salutation–of the topic’s author to help ensure that they do not think Prof Turley wrote the article.
This misunderstanding has occurred more than anticipated and at least once for each of the early guest bloggers. I actually had to apologize to poster Puzzling because he initially suggested this signing-off and I spouted off that any careful reader would clearly understand who wrote what. Just a suggestion, though…
For example, Mespo adds this at the end of his columns.
“~Mark Esposito, Guest Blogger”
I think they got this quite wrong. If there’s anything for which there should be zero tolerance it is any kind of utterance suggesting harm to the President of the United States. I felt the same way when that miserable excuse for a human being, George Bush, held the office.
I hope you are correct that this idiot will be in front of another court soon. I hope it is before he has acted on any predictions.
There are words and there are threatening words (as in “having a hostile or deliberately frightening quality or manner”) and there are explicit threats to injure or kill consisting of words. The statute criminalizes only threats and, as pointed out, a prediction of dire consequences may be threatening words but it is not a threat against the person. Good lawyering; good judging; good logic; and one bad hombre. He’ll be back in front of some court and soon — just like Casey Anthony.
Though I find Bagdasarian’s words diplorable, this definately is a win for free speech. Excellent post Gene 🙂
Gene,
interesting story and a great response to erykah. I would like to ask a question. Would the case have been handled any differently if the candidate/President had been white?
erykah,
JT didn’t write this. I did. Al Sharpton has the same free speech rights as anyone else, but just like Walter Bagdasarian (or anyone else), he doesn’t have the right to be free of criticism of what he says or how he says it. If the Rev wants to take his battle to White Supremacists? I say more power to him. If he wants to spend the rest of his time with his foot in his mouth? He has no one to blame for the criticisms but himself.
So JT, everybody even this lunatic has the right to free speech, but not Al Sharpton. You guys kill me. Oh that’s right, whenever someone is shining the spot light on White nationalism, they are race baiters. Gotcha.
Had case in our state some may remember involving the Mosque close to Ground Zero:
Protester who was fired for burning Koran near Ground Zero gets his job back AND $25,000
By DAILY MAIL REPORTER
Last updated at 9:50 PM on 22nd April 2011
Read more: http://www.dailymail.co.uk/news/article-1379745/Protester-fired-burning-Koran-near-Ground-Zero-gets-job-AND-25-000.html#ixzz1SfrUyaMp
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?
I, too, view this as a “free speech win”, to use your phrase… Judge Reinhardt’s conclusion is right on the mark.
Great posting.
I have been thinking about this issue for decades. We had mentally ill people at our facility who had written letters to the President and others, making threats. These were people with a diagnosis of schizophrenia and would be hospitalized the rest of their life in a secure environment. Every once in a while, especially if the President were making a trip to our area, the Secret Service would show up. They were never satisfied with our word that we had the person. They wanted to go back on the ward and LOOK at them, comparing the patient with photographs they had with them.
It is the 9th Circuit after all. They usually get something’s right. This one they did based upon these circumstances.