The Ninth Circuit Court of Appeals, based in Pasadena, California, has overturned the conviction of Walter Bagdasarian, who was convicted under federal law banning threats against a presidential candidate.
On October 22, 2008, when Barack Obama’s election was looking more and more likely, Bagdasarian, under the username “californiaradial,” joined a Yahoo!…message board…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.” (page 5)
To justify their decision, they derogated Supreme Court Justice Anonin Scalia’s observation that elections are becoming increasingly uncivil:
Justice Scalia, though analyzing a current issue, uncharacteristically overlooked the experience of our Founding Fathers. (page 3)
Interestingly, the Ninth noted that racial epithets against presidential candidates date back to Adams and Jefferson:
- “Adams supporters called Jefferson “a mean-spirited, low-lived fellow, the son of a half-breed Indian squaw, sired by a Virginia mulatto father.” (page 3)
- “Abraham Lincoln was derided as an ape, ghoul, lunatic, and savage…” (page 3)
Taking the two message board postings in the context of all of the relevant facts and circumstances, the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Bagdasarian had the subjective intent to threaten a presidential candidate. For the same reasons that his statements fail to meet the subjective element of § 879, given any reasonable construction of the words in his postings, those statements do not constitute a “true threat,” and they are therefore protected speech under the First Amendment. See Black, 538 U.S. at 359. Accordingly, his conviction must be reversed.