U.S. v. Bagdasarian, No. 09-50529 (7-19-11) (Reinhardt with Kozinski; partial concurrence and partial dissent by Wardlaw).

The 9th reverses a conviction for threatening a presidential candidate under 18 U.S.C. 879(a)(3). The defendant wrote racist ugly e-mails directed against then-candidate Obama. The messages include statements referencing weapons ("shoot the ---" and "...he will have a .50 cal in the head soon."). He was tracked down and admitted to writing the statements, but also said that he was drinking at the time. Concerning to the Secret Service were the weapons in his house. A charge and conviction followed. On appeal, the 9th finds that the speech, although repugnant, was constitutionally protected. The 9th reviews the history of smear campaigns and vicious speech in campaigns, extolls the virtues of free speech, discusses the jurisprudence of threats (Black) and clarifies the standard of review in such speech/threat cases (objective and subjective). Wardlaw concurs with the standard of speech, and the standard of review, but would find that the government had proved sufficient evidence to show that the threat met both an objective and subjective standard, and that it focused on imminent action.