The case is this morning’s United States v. Bagdasarian (decided by a 2-to-1 vote).
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.
Bagdasarian was convicted, but the panel majority reversed the conviction.
To understand the legal question, we need a bit of background. First, simply advocating crime, including murder of a particular politician, is not constitutionally punishable under the “incitement” exception. “George Bush deserves to die” is generally constitutionally protected speech, unless it falls within the “true threats” exception (more on that shortly). Such advocacy of violence is punishable only if it’s intended to and likely to cause imminent action by another, or if it’s a solicitation of a specific criminal act. (The boundaries of this “solicitation” exception are not clear, but it seems likely that, to be solicitation, speech would have to be much more specific than just a statement that some political figure ought to be killed.)
Second, the Supreme Court’s first case discussing the “true threats” exception, Watts v. United States (1969), held that even some language that appears to overtly threaten political leaders is nonetheless constitutionally protected:
The incident which led to petitioner’s arrest occurred on August 27, 1966, during a public rally on the Washington Monument grounds. The crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views. According to an investigator for the Army Counter Intelligence Corps who was present, petitioner responded: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.” “They are not going to make me kill my black brothers.” ...
We do not believe that the kind of political hyperbole indulged in by petitioner fits within [the term "threat"]. For we must interpret the language Congress chose “against the background of a 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.” The language of the political arena, like the language used in labor disputes, is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.
Third, the Court’s latest true threats case, Virginia v. Black (2003), stated that “‘[t]rue threats’ encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” This seemed to reject some lower court decisions that said that the exception covers statements that are reasonably perceived as threatening, regardless of whether the speaker intends them to be perceived. Since then, lower courts have disagreed about whether Black deliberately rejected those lower court decisions, especially given that the court didn’t really discuss that particular controversy in detail. But the Ninth Circuit panel in Bagdasarian expressly held (and on this the judges were unanimous) that Black‘s adoption of the “means to communicate a serious expression of an intent to commit an act of unlawful violence” really does require proof of the speaker’s intent.
But, fourth, Virginia v. Black didn’t really deal with the core question arising in many true threats cases, which is how exactly “true threats” are to be sorted from mere vituperation or advocacy of violence. “I will kill the President” and “the President is a menace to the country and a mass murderer of American soldiers and the soldiers we’re fighting, so he deserves to die” are logically distinguishable — but in between them there are many statements that both express contempt and could be reasonably understood as suggesting that the speaker may himself take action, and that the speaker means us to perceive him as potentially taking such action.
In any event, on these particular facts, the panel majority concluded that (1) there wasn’t enough evidence to find beyond a reasonable doubt that Bagdasarian’s statements would be reasonably perceived as a true threat — as opposed to just a statement of what someone ought to do, or for that matter just hyperbolic condemnation — and (2) there wasn’t enough evidence to find beyond a reasonable doubt Bagdasarian meant his listeners to perceive his statements that way. The dissenting judge disagreed. For the arguments, see the extended discussion at pp. 9809-9818 and 9822-9831 of the slip opinion; I can’t think of an excerpt that can do justice to the judges’ arguments.
My sense, by the way, is that there’s a good chance that the Ninth Circuit will rehear the case en banc, given the subject matter of the case, the presence of a forceful dissent, and the tension among some past Ninth Circuit precedents about true threats, which can lead other judges to see the panel opinion as not fully consistent with some of those precedents. And if the Ninth Circuit doesn’t do this, and the federal government petitions for certiorari, there is a good chance that the Supreme Court will agree to hear the case, given the disagreement between the lower court and the Executive Branch, the uncertainty among lower courts about how to read Virginia v. Black (see the paragraph beginning with “Third” above), and the subject matter of the case.
Thanks to How Appealing for the pointer.