Well, the First Amendment wouldn’t be any fun at all if it didn’t give us utterly confounding situations like this, the kind of situations that make us question – and maybe reaffirm – our undying devotion to freedom of speech even in the most troubling cases. From yesterday’s Los Angeles Times:
A La Mesa man who posted racial epithets and a call to “shoot” Barack Obama on an Internet chat site was engaging in constitutionally protected free speech, a federal appeals court ruled Tuesday in overturning his criminal conviction.
Walter Bagdasarian was found guilty two years ago of making threats against a major presidential candidate in comments he posted on a Yahoo.com financial website after 1 a.m. on Oct. 22, 2008, as Obama’s impending victory in the race for the White House was becoming apparent. Bagdasarian told investigators he was drunk at the time.
A divided panel of the U.S. 9th Circuit Court of Appeals overturned that conviction Tuesday, saying Bagdasarian’s comments were “particularly repugnant” because they endorsed violence but that a reasonable person wouldn't have taken them as a genuine threat.
The case is captioned United States of America v. Walter Edward Bagdasarian, No. 09-50529 (9th Cir. July 11, 2011), and you can read it in its entirety or download a .pdf version of the opinion here.
It’s a disturbing case, but that’s not to say the Court of Appeals reached the wrong conclusion. The basic facts are these (and I apologize for quoting Bagdasarian’s language as it appears in the court’s opinion):
On October 22, 2008, when Barack Obama’s election was looking more and more likely, Bagdasarian, under the username “californiaradial,” joined a “Yahoo! Finance — American International Group” message board, on which members of the public posted messages concerning financial matters, AIG, and other topics. At 1:15 am on the day that he joined, Bagdasarian posted the following statement on the message board: “Re: Obama fk the niggar, he will have a 50 cal in the head soon.” About twenty minutes later, he posted another statement on the same message board: “shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos.” Bagdasarian also posted statements on the same message board that he had been extremely intoxicated at the time that he made the two earlier statements. He repeated at trial that he had been drinking heavily on October 22. Another participant on the message board, John Base, a retired Air Force officer, reported Bagdasarian’s second statement regarding Obama to the Los Angeles Field Office of the United States Secret Service that same morning.
U.S. v. Bagdasarian, slip op. at 9803-04 (footnote omitted). The Secret Service then tracked Bagdasarian down, interviewed him, and subsequently obtained and executed a search warrant, discovering that he owned “six firearms, including a Remington model 700ML .50 caliber muzzle-loading rifle, as well as .50 caliber ammunition.” Id. at 9804. Moreover:
The agents also searched the hard drive of Bagdasarian’s home computer and recovered an email sent on Election Day with the subject, “Re: And so it begins.” The email’s text stated, “Pistol??? Dude, Josh needs to get us one of these, just shoot the nigga’s car and POOF!” The email provided a link to a webpage advertising a large caliber rifle. Another email that Bagdasarian sent the same day with the same subject heading stated, “Pistol . . . plink plink plink Now when you use a 50 cal on a nigga car you get this.” It included a link to a video of a propane tank, a pile of debris, and two junked cars being blown up. These email messages would appear to confirm the malevolent nature of the previous statements as well as Bagdasarian’s own malignant nature. Unlike in the case of his first two message board statements two weeks earlier, this time he did not attempt to excuse his inexcusable conduct on the ground that he was intoxicated.
Id. at 9805.
As troubling as all of this is, it’s important to note that Bagdasarian was charged with making a threat against a presidential candidate, not inciting others to do harm to a presidential candidate, and that proved to be a key factor in the court’s decision. Specifically, Bagdasarian was charged under 18 U.S.C. § 879(a)(3), which provides:
(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.
Noting that 18 U.S.C. § 879 punishes “pure speech” (slip op. at 9805), and reviewing controlling Supreme Court precedent under the First Amendment, and in particular the Court’s decision in Virginia v. Black, 538 U.S. 343 (2003), the Ninth Circuit concluded that Bagdasarian’s conviction could only be upheld if his words constituted a “true threat,” which, in turn, requires both an objective and a subjective inquiry:
Two elements must be met for a statement to constitute an offense under 18 U.S.C. § 879(a)(3): objective and subjective. The first is that the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President. The second is that the defendant intended that the statement be understood as a threat. Because Bagdasarian’s conviction under § 879 can be upheld only if both the objective and subjective requirements are met, neither standard is the obvious starting point for our analysis, and our resolution of either issue may serve as an alternate holding.
Slip op. at 9809.
The problem, the Court of Appeals found, was that neither of the two statements upon which Bagdasarian’s conviction was based – i.e., the statement that Candidate Obama “will have a 50 cal in the head soon” and the “shoot the nig” statement – amounted to an actual threat that Bagdasarian himself would do anything to Mr. Obama:
The “Obama fk the niggar” statement is a prediction that Obama “will have a 50 cal in thehead soon.” 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 take 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.
Slip op. at 9810. As to that latter point – that 18 U.S.C. § 879 applies only to threats that the speaker intends to do violence, not that incite others to do violence – the Bagdasarian court recognized that the Fourth Circuit, in United States v. Patillo, 438 F.2d 13, 16 (4th Cir. 1971) (en banc), suggested otherwise, but “[n]o other circuit has concluded that incitement can be punished under a threat statute” like Section 879. Id. at 9810-11 n. 18.
Obviously, there are several disturbing things about the Bagdasarian case – not the least of which are the racist and violent language the defendant employed, his subsequent e-mails discussing specific means of attacking the President, and the fact that he owned six weapons including a fifty caliber rifle, the weapon he specifically mentioned in one of the challenged statements and the two subsequent e-mails – but the Ninth Circuit’s ruling has to be read in the context of our “profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials … .” Slip op. at 9812, quoting Watts v. United States, 394 U.S. 705, 708 (1969) (internal quotation marks removed). Whether it was rightly or wrongly decided, the Bagdasarian case serves as a reminder of just how dearly we hold free speech to be in our country, and that there are few, if any, places on earth where it’s taken as seriously as it is in the United States.
© 2011 David P. von Ebers. All rights reserved.