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Bulletin:Summer 2011, Volume 16, Number 3

Ninth Circuit Overturns Conviction for Threat against Obama

Court Finds Federal Statute Does Not Apply to Incitement

On July 19, 2011, the 9th Circuit U.S. Court of Appeals reversed the conviction of a man charged with making online threats against the life of a major presidential candidate, finding that the First Amendment protected his racist, violence-tinged rants about then-candidate Barack Obama.

The case arose after Walter Bagdasarian, who the court described as “an especially unpleasant fellow,” made several comments on a Yahoo! Finance message board early on the morning of Oct. 22, 2008 that alarmed other message board users and prompted one user to alert the U.S. Secret Service. The two particular comments that led to the charges were “Re: Obama fk the niggar, he will have a 50 cal in the head soon,” posted at 1:15 a.m., and “shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos,” at about 1:35 a.m. According to the opinion, a retired Air Force officer reported the “shoot the nig” comment to the Secret Service’s field office in Los Angeles, providing it with Bagdasarian’s username: “californiaradial” and the URL address for the message board.

Yahoo! provided the Secret Service with the subscriber information for the email address as well as the account’s Internet Protocol history, which allowed investigators to identify Bagdasarian as the user who posted the comments. Two Secret Service agents visited Bagdasarian’s home in La Mesa, Calif., on Nov. 21, 2008, where he admitted to posting the comments and also that he owned firearms. Executing a search warrant a few days later, agents found a .50 caliber muzzle-loading rifle and ammunition among Bagdasarian’s six guns, as well as email messages from the day of the election with the subject line “Re: And so it begins” and discussing “shoot[ing] the nigga’s car.”

On July 28, 2009, Judge Marilyn Huff of the U.S. District Court for the Southern District of California found Bagdasarian guilty of two counts of violating 18 U.S.C. § 879(a)(3), which makes it a felony 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.” On appeal, however, a three-judge panel of the 9th Circuit reversed the conviction in a 2 to 1 ruling, finding that the prosecution failed to sufficiently establish beyond a reasonable doubt that Bagdasarian’s “pure speech” constituted a “true threat” against a presidential candidate and was therefore protected speech under the First Amendment. United States v. Bagdasarian, No. 09-50529, 2011 U.S. App. LEXIS 14684 (9th Cir. July 19, 2011)

The majority opinion by Judge Stephen Reinhardt explained that in order for an individual to be convicted under 18 U.S.C. § 879(a)(3), the prosecution must provide evidence beyond a reasonable doubt that meets both an “objective” and “subjective” standard. In other words, the prosecution must demonstrate both that people reading Bagdasarian’s comments understood them in context to be “a serious expression of an intent to kill or injure” Obama, as well as that Bagdasarian intended his statement to be understood as a threat.

Applying the objective standard, the court rejected the government’s argument that the fact that Bagdasarian posted the comments under a pseudonym supported a finding that a reasonable person would consider them to be a serious threat. “We grant that in some circumstances a speaker’s anonymity could influence a listener’s perception of danger,” Reinhardt wrote. “But the Government offers no support for its contention that [Bagdasarian’s comments] would be more rather than less likely to be regarded as a threat under circumstances in which the speaker’s identity is unknown.” The court also observed that the message board was a “non-violent discussion forum” of financial matters, which it argued “would tend to blunt any perception that statements made there were serious expressions of intended violence.”

The court also found the fact that several other forum users were apparently alarmed by Bagdasarian’s comments did not support a finding that a reasonable person would consider them to be a true threat. “We fail 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,” Reinhardt wrote, adding that it was “more significant that among the numerous persons who read Bagdasarian’s messages, the record reveals only one who was sufficiently disturbed to actually notify the authorities.”

In considering whether Bagdasarian had the subjective intent that his comments be considered true threats against the life of candidate Obama, the court found that neither the fact that he owned a .50 caliber gun nor his Election Day email reference to using such a weapon to “shoot the nigga’s car” was “sufficient to prove beyond a reasonable doubt that Bagdasarian intended to make a threat.” Reinhardt argued that because his October 22 message board comments “fail to express any intent on his part to take any action, the fact that he possessed the weapons is not sufficient to establish that he intended to threaten Obama himself.”

Moreover, the court ruled that because the emails “simply provide additional information … that Bagdasarian may have believed would tend to encourage the email’s recipient to take violent action against Obama,” they did not provide support to the prosecution. The court explained that “incitement to kill or injure a presidential candidate does not qualify as an offense under § 879(a)(3).” The court based its reasoning on Roy v. United States, 416 F.2d 874 (9th Cir. 1969), where the 9th Circuit found that incitement was not a punishable offense under 18 U.S.C. § 871, a statute which applies to threats against the president or successors to the presidency. The court also said it concluded that incitement is not punishable under § 879(a)(3) “on the basis of the plain language of the statute,” which does not mention incitement. Therefore, the court said, even if Bagdasarian’s comments could reasonably be interpreted as a prediction that Obama would be killed or as encouragement to others to kill him, they would not qualify as an offense that could be prosecuted under § 879(a)(3). Moreover, the court explained, even if incitement was punishable under the statute, neither Bagdasarian’s statement “shoot the nig” or that Obama “will have a 50 cal in the head soon” would satisfy the requirement under the U.S. Supreme Court’s holding in Brandenburg v. Ohio, 395 U.S. 444 (1969) that, in order to remove constitutional protection from speech that incites illegal action, the government must prove that the action will be carried out imminently, and not just “at some indefinite future time.”

Judge Kim McLane Wardlaw concurred in the majority’s reasoning insofar as it held that both an objective and subjective standard were required to uphold a prosecution under § 879(a)(3), but she dissented on the ground that she believed the government met its burden on both standards. “There is sufficient evidence to find Mr. Bagdasarian guilty of threatening harm against then-presidential candidate Barack Obama,” Wardlaw wrote.

Wardlaw argued that the majority “fail[ed] 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 … and the listeners who not only perceived the posts as threatening when they were made, but who acted on that perception.” With these contextual factors in mind, along with “our country’s collective experience with internet threats and postings that presaged tragic events” such as school shootings, a reasonable person could have objectively considered Bagdasarian’s comments to constitute threats punishable under § 879(a)(3), Wardlaw wrote.

Wardlaw also cited the case of New Jersey blogger and Internet radio host Hal Turner, who was convicted in August 2010 of threatening to kill three Chicago-based federal judges after he wrote that they “deserve to be killed” and that “their blood will replenish the tree of liberty” and would be “a small price to pay to assure freedom for millions.” Wardlaw observed that a district judge had declined to dismiss the case on the grounds that Turner’s physical distance from Chicago diminished his threat, stating that “in an era when physicians have been murdered in their places of worship; families of Judges have been slain; a Judge of the Eleventh Circuit Court of Appeals and State Court Judges have been blown up or shot; a Federal Courthouse ripped apart by homemade explosives, all in the name of political dissent or religious fanaticism, it cannot be said that Defendant’s statements are unlikely to incite imminent lawless action.” United States v. Turner, No. 09-00650, 2009 U.S. Dist. LEXIS 131244, (E. Dist. N.Y., 2009) (For more on the Turner case see “Turner Convicted for Online Threat against Federal Judges” in the Summer 2010 issue of the Silha Bulletin and “Blogger White Convicted; Two Mistrials for Turner” in the Winter/Spring 2010 issue.)

In a similar case, however, on April 19, 2011, U.S. District Judge Lynn Adelman overturned a federal jury’s conviction of white supremacist blogger William White, who was indicted in 2009 for “soliciting a crime of violence” against the foreman of a Chicago federal jury. Adelman ruled that the government failed to present sufficient evidence to meet either an objective or subjective standard that White’s posts constituted a solicitation to harm the juror, and that the posts were protected by the First Amendment. United States v. White, No. 09-2916, 2011 U.S. Dist. LEXIS 42026 (N. Dist. Ill., April 19, 2011) The April 2011 ruling was the second time Adelman addressed the White case. He dismissed the charge against White in July 2009, ruling that it failed to allege a solicitation and violated the First Amendment, but a three-judge panel of the 7th Circuit Court of Appeals reversed Adelman’s decision in June 2010. (For more on the case, see “Blogger Charged with Inciting Attacks on Judges, Lawmakers,” under the subhead “Blogger Acquitted of Soliciting Harm to Juror, Remains in Custody” in the Summer 2009 issue of the Silha Bulletin and “Turner Convicted for Online Threat against Federal Judges” in the Summer 2010 issue, under the subhead “Charge Reinstated against Blogger William White.”)

Wardlaw’s dissent also argued against the majority’s finding that the fact that the message board was devoted to financial matters tended to “blunt” a perception that they were serious. “That he posted on a financial message board does not diminish the nature of the threats,” Wardlaw argued, “just as they would be no less diminished had he shouted them on the floor of the New York Stock Exchange.”

In a July 25 editorial, the Los Angeles Times praised the ruling, saying that “not for the first time, a loathsome individual has benefited from a robust — and correct — interpretation of the 1st Amendment.” Peter Scheer, executive director of the California First Amendment Coalition, told the Times for a July 20 article that although he thought the majority “got it right,” the ruling “pushes it to the limit” and “I only feel comfortable saying that having 20-20 hindsight in knowing that the threat wasn’t carried out.”

– Patrick File
Silha Bulletin Editor

September 1, 2011