The UNITED STATES COURT OF APPEALS for the NINTH CIRCUIT has decided the case of UNITED STATES OF AMERICA v. WALTER EDWARD BAGDASARIAN, No. 09-50529 (7/19/11). The panel was composed of Judges Alex Kozinski, Chief Judge, Stephen Reinhardt and Kim McLane Wardlaw. Judge Reinhardt wrote the Opinion.
The Court reviewed a district courts conviction under 18 U.S.C. § 879(a)(3), which makes it a felony to threaten to kill or do bodily harm to a major presidential candidate. The defendant Walter Bagdasarian (an especially unpleasant fellow) was found guilty on two counts of making statements on a Yahoo online financial message board two weeks before the presidential election: Obama fk the niggar, he will have a 50 cal in the head soon and shoot the nig.
Two elements must be met for a statement to constitute an offense under § 879(a)(3). The first is that the statement would be understood by people hearing or reading it in context as a serious expression of an intent to kill or injure a major candidate for President. The second is that the defendant intended that the statement be understood as a threat. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President.
In order to affirm a conviction under a threat statute that criminalizes pure speech, the court must find sufficient evidence that the speech at issue constitutes a true threat. The Court held that the element of intent is the determinative factor separating protected expression from unprotected criminal behavior. Section 879(a)(3) requires subjective intent as a matter of statutory construction, so the relevant constitutional inquiry is: did the speaker subjectively intend the speech as a threat?
The panel concluded that the evidence was not sufficient for any reasonable finder of fact to have concluded beyond a reasonable doubt that Bagdasarian intended that his statements be taken as threats against a presidential candidate. Accordingly, his conviction was reversed.
The dissent of Judge Wardlaw would not require that the speaker in a threats case explicitly threaten that he himself is going to injure or kill the intended victim; rather, the surrounding circumstances should be examined to determine whether a reasonable person in the speakers shoes would foresee that his statements would be perceived as threats.