A federal appeals court ruled Tuesday that calling for someone to kill the President of the United States cannot be classified as a threat because standing law does not prohibit “predictions or exhortations” to violence.
In a 2-1 decision, judges on the 9th Circuit Court of Appeals ruled that California resident Walter E. Bagdasarian was engaging in free speech when he wrote that Obama “will have a 50 cal in the head soon,” then called on someone to “shoot the nig.”
Bagdasarian published his comments on a Yahoo finance website in the weeks leading up to the 2008 presidential election. He was arrested weeks later, after one of the other commenters reported a potential threat to the Secret Service. During a search of his residence, authorities discovered that he did indeed possess a .50 caliber rifle.
“These statements are particularly repugnant because they directly encourage violence,” the judges wrote. “We nevertheless hold that neither of them constitutes an offense within the meaning of the threat statute under which Bagdasarian was convicted.”
“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,” they continued. “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.”
Judge Kim McLane Wardlaw cast the dissenting vote. In her opinion, she cites the conviction of former white supremacist radio host Hal Turner, who was sentenced after he published comments on his website calling for the assassination of three judges. She also cites cases dealing with threats against abortion providers, where the defendants made statements of similar nature to Bagdasarian’s comments.
“Therefore, independently reviewing the entire record, I conclude that at the time Mr. Bagdasarian made the charged threats, he acted with the specific intent to threaten candidate Obama,” she wrote.
Read the court’s full ruling here (PDF link).