Court reverses conviction in online Obama threat
Jul. 19, 2011 01:13 PM
SAN FRANCISCO - A federal appeals court has overturned the conviction of a San Diego man who authorities say posted Internet messages threatening Barack Obama during his 2008 presidential campaign.
A divided three-judge panel of the 9th U.S. Circuit Court of Appeals on Tuesday ruled that Walter Bagdasarian's violent and racist screed against Obama was "repugnant" but not criminal.
Bagdasarian was convicted in a lower court of two felony counts of threatening a major presidential candidate.
The panel says no "reasonable person" could have taken seriously Bagdasarian's posts to a Yahoo Finance message board in October 2008. The court also says his free speech rights protected him from prosecution.
One of the posts said the candidate would soon be shot in the head.
Bagdasarian has said he was drunk that night.
Urging Obama’s Assassination Is Lawful Online Speech, Divided Appeals Court Says
By David Kravets Email Author
July 19, 2011 |
A Southern California man was wrongly convicted of online threats against Barack Obama two weeks before Obama was elected president in November 2008, a divided federal appeals court ruled Tuesday.
“Re: Obama fk the n*ggar, he will have a 50 cal in the head soon,” read one of the messages posted on the Yahoo finance site by Walter Bagdasarian.
About 20 minutes later, Bagdasarian posted another statement after 1 a.m. on Oct. 22. “Shoot the n*g country fkd for another 4 years+, what n*g has done ANYTHING right???? long term???? never in history, except sambos.”
After Secret Service agents traced the remarks to him when a message board member tipped them off, Bagdasarian was found guilty of two counts of criminal threats to a presidential candidate. The La Mesa man was sentenced to two months in a halfway house. He appealed.
The 9th U.S. Circuit Court of Appeals in San Francisco concluded that Bagdasarian’s statements were “particularly repugnant” because they directly encourage violence. “We nevertheless hold that neither of them constitutes an offense within the meaning of the threat statute under which Bagdasarian was convicted” (.pdf), the appeals court wrote.
The three-judge appellate panel, ruling 2-1, said Bagdasarian’s speech was lawful, perhaps because of a loophole in the law.
“The evidence is not sufficient to support a conclusion that a reasonable person who read the postings within or without the relevant context would have understood either to mean that Bagdasarian threatened to injure or kill the presidential candidate,” Judge Stephen Reinhardt wrote for the majority.
Reinhardt noted, however, that the statements “intended to encourage others to take violent action.”
“The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the president,” Reinhardt wrote.
There are many unstable individuals in this nation to whom assault weapons and other firearms are readily available, some of whom might believe that they were doing the nation a service were they to follow Bagdasarian’s commandment. There is nevertheless insufficient evidence that either statement constituted a threat or would be construed by a reasonable person as a genuine threat by Bagdasarian against Obama.
The government argued Bagdasarian had a .50-caliber weapon at home, the same model he listed on the message board. “Nobody who read the message board postings, however, knew that he had a .50-caliber gun,” Reinhardt wrote.
In dissent, Judge Kim McClane Wardlaw wrote that “history undermines the conclusion that a reasonable person would interpret Mr. Bagdasarian’s ‘50 cal in the head’ comment as a joke or mere political rhetoric.”
Reading the two statements charged in the indictment in isolation, the majority dissects them to conclude that they were not even threats. It fails 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, two weeks before the 2008 election, and the listeners who not only perceived the posts as threatening when they were made, but who acted on that perception.
Court reverses conviction on online Obama threat
By PAUL ELIAS, Associated Press – 2 hours ago
SAN FRANCISCO (AP) — A federal appeals court on Tuesday overturned the conviction of a man who posted Internet messages threatening Barack Obama during his 2008 presidential campaign.
A divided three-judge panel of the 9th U.S. Circuit Court of Appeals ruled that Walter Bagdasarian's violent and racist screeds against Obama were "repugnant" but not criminal. The court also said it was obvious the San Diego man wasn't planning to attack the candidate and that the postings were protected by Bagdasarian's free speech rights.
Bagdasarian was convicted in 2009 of two felony counts of threatening a major presidential candidate.
Bagdasarian posted several messages to a Yahoo Finance message board in October 2008, including one that called Obama a racial epithet and another that said "he will have a 50 cal in the head soon" — a reference to a .50 caliber gun.
A retired Air Force officer forwarded the postings to the Secret Service. Yahoo provided Bagdasarian's subscriber information to investigators, who raided his house and seized six guns and a hard drive containing an email with similar sentiments.
Bagdasarian admitted posting the messages, but said he was drunk and joking.
He waived his right to a jury trial. District Judge Marilyn L. Huff found him guilty and sentenced him to 60-days in a half-way home.
But the appeals panel said no "reasonable person" could have taken seriously Bagdasarian's posts.
"The evidence is not sufficient to support a conclusion that a reasonable person who read the postings within or without the relevant context would have understood either to mean that Bagdasarian threatened to injure or kill the presidential candidate," Circuit Judge Stephen Reinhardt wrote for the majority.
Circuit Judge Kim Wardlaw dissented, noting that Bagsasarian owned a .50 caliber gun.
"That Mr. Bagdasarian later made a public apology does not detract from his intent at the time; his intent to threaten harm to candidate Obama generated fear for the candidate's safety and mobilized the Secret Service, which tracked Mr. Bagdasarian down," Wardlaw wrote. "Mr. Bagdasarian did not come forward; the Secret Service had to locate him."