9th Circuit: Man’s postings were offensive, but not illegal threats

Wednesday, July 20, 2011

Under the First Amendment, the government cannot limit Americans’ speech, except in some very narrow instances.

One of those exceptions — threatening to harm a candidate for the presidency of the United States — was at the heart of a 9th U.S. Circuit Court of Appeals ruling yesterday. In a 2-1 decision, the court ruled that the online posts of “an especially unpleasant fellow” were offensive, but did not violate the law.

Walter Bagdasarian was convicted of threatening a presidential candidate in 2009 after he posted two angry messages to a Yahoo finance online board two weeks before the 2008 election:

  • “Re: Obama fk the niggar, he will have a 50 cal in the head soon.”
  • “Shoot th nig country fkd for another 4 years+ … .”

Online users of the Yahoo board sent the posts to the Secret Service, which launched the investigation that led to Bagdasarian’s prosecution.

9th Circuit Judge Stephen Reinhardt said that Bagdasarian’s conviction could be upheld only if his comments could reasonably be interpreted by others as threats to a presidential candidate and if he truly intended them as threats.

The majority concluded that neither test was met, finding that one statement was a prediction that Obama would be shot soon and the other was an exhortation to other people to take violent action against the president.

“The prediction that Obama ‘will have a 50 cal in the head soon’ is not a threat on its face because it does not convey the notion that Bagdasarian himself had plans to fulfill the prediction that Obama would be killed, either now or in the future,” Reinhardt wrote. “’Shoot the nig’ expresses the imperative that some unknown party should take violent action.”

The court also noted that the messages were posted on a financial information board and would be less likely to be taken seriously there.

In a partial dissent, Judge Kim McLane Wardlaw pointed to the calls to the Secret Service by other online users as evidence that third parties would reasonably view Bagdasarian’s postings as a threat. Wardlaw also noted that Bagdasarian owned the “50 cal” weapon that he referred to in this message and that although he may not have intended to hurt Obama, he clearly intended to threaten.

Cases such as this one were once much easier to resolve. The threatening nature of a letter mailed to the White House was fairly easy to assess.

But in an online environment where venom and hyperbole are in such plentiful supply, and where political differences take on very ugly tones, it’s very hard to separate dangerous threats from the ranting of blowhards. As this divided appellate decision suggests, it’s not likely to get easier anytime soon.

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