On July 19, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued its ruling in a potentially very significant First Amendment case. The ruling split the panel 2-1, with Judges Stephen Reinhardt and Alex Kozinski in the majority, and Judge Kim McLane Wardlaw dissenting in part.
The question before the panel was whether certain message-board postings—that had appeared during the 2008 presidential campaign, expressed hostility and hatred toward then-candidate Obama, and mentioned violence against him—constituted illegal threats or were protected by the First Amendment.
Notably, Judges Reinhardt and Kozinski have often differed over the course of their Ninth Circuit careers, with Reinhardt taking liberal stances, as opposed to Kozinski’s more libertarian rulings. But in this case, the two were of the same mind: The messages at issue, they concluded, were not “true threats.”
Wardlaw, in contrast, not only dissented in part from the majority’s opinion, finding the messages to be “true threats,” but also took a significantly different approach to the matter.
The Majority’s Approach, and the Facts of the Case
The two-judge majority begins its opinion by noting that President Obama’s campaign, election, and tenure as President have evoked a great deal of vitriol. Then, the majority goes on to cite vitriolic remarks that were made during early American presidential elections—apparently to convey to the reader that longstanding First Amendment doctrine on this issue is still relevant in a modern context. Yet, after that, the majority states that “the 2008 presidential election was unique in the combination of racial, religious, and ethnic bias that contributed to the extreme enmity expressed at various points during the campaign.”
In my view, all this back-and-forthing by the majority suggests that the majority is torn over the question whether this case’s historical situation—that is, the fact that it involves a then-candidate who sought to become (and did become) America’s first African-American president—requires that judges accord it some kind of unique consideration.
In the end, the majority’s answer seems to be no, but Judge Wardlaw gives a somewhat different answer—one that is reliant on recent history, as I will explain below.
Certainly, it was then-candidate Obama’s race that the message-board poster, Walter Bagdasarian, focused upon, in the two messages that ultimately led to this case. (I apologize in advance for the repellent language of the messages, but I think it’s important to include this language here verbatim, in light of the nature of the case, which turns on wording.) The first message said “Re: Obama fk the niggar, he will have a 50 cal in the head soon.” The second message said “shoot the nig,” with other racist comments following after that.
A retired Air Force officer who happened to be on the same message board as Bagdasarian (Bagdasarian had chosen, oddly, to post his comments on a Yahoo! Finance board) subsequently reported the comments to federal authorities, which led to charges being filed.
Bagdasarian claimed—when he learned on the message board that his comments had been reported; and later, when he testified at trial—that he had been drunk when he made the postings at issue.
A Secret Service search of Bagdasarian’s home followed upon the report of the message-board posts. It revealed that he had six firearms—including a Remington model 700ML .50 caliber muzzle-loading rifle, and .50 caliber ammunition. Arguably, then, Bagdasarian, in his posting referencing a “50 cal,” could have been referring to his own guns.
The Secret Service agents also found two ominous emails on Bagdasarian’s computer.
Both were sent on Election Day 2008. (Again, the language is offensive, but I think it has to be included to understand the case:) The first message had the subject heading “Re: And so it begins.” That email contained the following text: “Pistol??? Dude, Josh needs to get us one of these, just shoot the nigga’s car and POOF!” The email included a link to a webpage advertising a large-caliber rifle.
The second email had a heading that stated, “Pistol . . . plink plink plink Now when you use a 50 cal on a nigga car you get this.” This time, the link was to a video of a propane tank, a pile of debris, and two junked cars being blown up.
These two emails were not the basis for the charges against Bagdasarian, but they were offered by the government, as context, to show that his prior message-board comments were true threats.
The Tests That All Three Judges Applied, and the Panel Majority’s Conclusion
Based on his message-board postings, Bagdasarian was charged with two counts of threatening to kill or inflict bodily harm upon a major candidate for the office of President of the United States.
All three Ninth Circuit judges analyzed the charges against Bagdasarian under the “true threats” doctrine and agreed on the relevant doctrinal tests: (1) A statement only counts as a “true threat” if 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 is known as the “subjective test.”) (2) Moreover, a statement only counts as a true threat if “objective observers would reasonably perceive such speech,” when viewed in its full context, as a threat of injury or death. (This is known as the “objective test.”)
Judges Kozinski and Reinhardt did not believe the objective test was fulfilled by the message-board postings. They saw the first statement — “Re: Obama fk the niggar, he will have a 50 cal in the head soon”– as a prediction, not a threat. And they saw the second statement, “shoot the nig,” as an exhortation to others to kill the candidate, rather than a threat that Bagdasarian himself would do so.
Judge Wardlaw’s Dissent: Bringing Recent, Violent History Into Play
As noted above, Judge Wardlaw agreed with the majority’s legal tests, but applied them somewhat differently. Whereas the majority waffled, at best, on the importance of history to this case, Wardlaw was confident, in her dissent, that history—especially recent history—mattered here.
Thus, in arguing that the objective test (asking whether a reasonable observer, aware of the relevant context, would see a statement as a threat) was clearly fulfilled, she cited America’s experience with political assassination; its history of racial violence; and the fact that Internet threats have sometimes translated into real-life violence—as famously happened, for example, in the Columbine school massacre.
Judge Wardlaw also cited the extraordinary decision, based on a dire risk assessment, to give Barack Obama Secret Service protection before he was even nominated as his party’s candidate for president. In addition, she referenced reportage citing “at least one viable assassination attempt against [Obama].”
Is There a Better Approach to Cases Like These?
In the end, I think neither approach to this case is entirely satisfying.
Judges Kozinski and Reinhardt’s formalistic focus on grammar leads them to ignore context, and invites evasion. They’ve effectively blessed the formulation “will have a 50 cal in his head soon” as a perfectly legal thing to say, on the ground that it is a mere prediction.
Under their approach, the statements at issue are “not even threats,” let alone illegal threats, as Judge Wardlaw notes.
Thus, that very phrase—“will have a 50 cal in his head soon”—could easily become code among message-board malcontents for the threats that they cannot openly voice. If that were to happen, then ironically, in the cases involving that phrase, judges would have to look to context—to this case—to prove that, this time, a true threat really was at issue.
In the end, there’s no getting away from context here; focusing on language alone is not enough.
Yet Judge Wardlaw’s contextual and historical approach, too, can be criticized for sweeping in too much. In this case, she brings in not only directly relevant history (the U.S.’s history of political assassinations) but also history that’s further afield (Columbine’s school shootings). In so doing, it’s possible that she reaches beyond the context that is needed to assess the threat.
Moreover, Judge Wardlaw’s contextual approach risks simply reminding judges that there are a lot of dangerous people out there, and thus drawing attention away from the facts relating to the defendant in the case at bar, and toward a probabilistic sense that where there’s smoke, there is increasingly—especially, in recent years—fire. That’s a worrisome risk, since criminal defendants deserve truly individualized consideration of their cases.
In sum, I don’t have a good answer for what an ideal test would be, but I think we can do better than either the majority’s tight focus on language, or the dissenter’s very broad view of recent history’s relevance.
We Need to Think About the Intersection of Message Boards and Threats
It may also be useful, in considering what the right test would be here, to think about the distinctive features of message boards—where messages are often addressed, in a sense, to everyone and to no one.
Surely, if the very same two message-board posts that were at issue in this case had been printed out and sent directly to candidate Obama by Bagdasarian, then they would have been interpreted by courts as threats, even though the posts would still be discussing Obama in the third person.
But a message board post falls somewhere between a direct threat letter to Obama (obviously a threat), and, say, a private email between friends, however offensive. The question is, how should the law address a communication with this intermediate status?
For someone, someday, the stakes of these questions might be life or death, if a true threat is ignored; or imprisonment or freedom, if a mere joker is mistaken for a possible shooter.
Because the stakes are so high here, I hope that the Supreme Court will take up this issue sooner rather than later.