Sunday, July 24, 2011

Case o' The Week: Norwegian Wood May Overshadow Great Threats Case - Bagdasarian

Bagdasarian is a tough case. Writing for the panel, Judge Reinhardt authors a great decision that reverses threats convictions against a man who had made some terrible rants against (then-candidate) Obama. Dissenting Judge Wardlaw writes a thoughtful opinion chroniciling the terrorism and assasination attempts that have plagued our time -- she would uphold the convictions.

To complicate matters further, three days after the decision was delivered a Norwegian domestic terrorist killed nearly 100 victims in Oslo and a kids' camp.

A beautiful illustration of why the First Amendment wasn't designed for the easy cases, but to protect rights in the hard cases. United States v. Bagdasarian, 2011 WL 2803583 (9th Cir. July 19, 2011), decision available here.

Decision by Judge Reinhardt joined by C.J. Kozinski; concurrence and dissent by Judge Wardlaw.

Facts: Bagdasarian, “an especially unpleasant fellow,” was convicted of two counts of threatening to kill or do bodily harm to a major presidential candidate, in violation of 18 USC 879(a)(3). Id. at *1. Weeks before the 2008 election, Bagdasarian made a bevy of racists posts about then-candidate Obama on a financial chat site under the username, “californiaradical.” Id. at *1. In addition, in one post he wrote regarding Obama, “he will have a 50 cal in the head soon.” Id. In another post, he wrote, (among other things), “shoot the nig . . .” Id. See also article here.

Others on the message board reported Bagdasarian to Secret Service, who tracked him down. A search of his house revealed a .50 caliber rifle and ammunition, other e-mail from election day with racist references to blowing up a car with a pistol, and links to a YouTube video with an exploding car. Id. at *2. Bagdasarian was convicted in a bench trial and appealed.

Issue(s): “[W]e begin by clearing up the perceived confusion as to whether a subjective or objective analysis is required when examining whether a threat is criminal under various threat statutes and the First Amendment.” . . .The issue is actually whether, as to a threat prosecuted under a particular threat statute, only a subjective analysis need be applied or whether both a subjective and an objective analysis is required.” Id. at *3

Held:Two elements must be met for a statement to constitute an offense under 18 U.S.C. § 879(a)(3): objective and subjective. 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.” Id. at *4 (citation omitted). “Taking the two message board postings in the context of all of the relevant facts and circumstances, the prosecution failed to present sufficient evidence to establish beyond a reasonable doubt that Bagdasarian had the subjective intent to threaten a presidential candidate. For the same reasons that his statements fail to meet the subjective element of § 879, given any reasonable construction of the words in his postings, those statements do not constitute a “true threat,” and they are therefore protected speech under the First Amendment. . . . Accordingly, his conviction must be reversed.Id. at *8.

Of Note: Though we hope Bagdasarian long remains the Ninth's lead threats decision, two things will make us hold our breath until the en banc and Supreme courts pass by.

First, Judge Wardlaw writes a heck of a dissent from the majority’s reversal. Id. at *8. We disagree with her conclusion, but one must concede that it is a well-written opinion by a respected jurist.

The second bad fact comes from Europe: three days after this decision was delivered Norwegian Anders Breivik committed one of the worst acts of domestic terrorism ever seen. While the First Amendment is indifferent to current events, jurists read the New York Times. Bagdasarian suffers from extraordinarily bad timing.

How to Use: Bagdasarian clarifies that there are dual intent requirements for this threat statute – a necessary duality, to survive First Amendment scrutiny. Every statute that criminalizes threats must have a subjective intent requirement to pass constitutional muster. Id. at *3. Some threat statutes also have an objective standard as well. Id. at *3. Section 879(a)(3) does, now. This is a valuable clarification – the government must now also show that “a reasonable person who [perceived the threats] within or without the relevant context would have understood [them] to mean that [the defendant] threatened to injure or kill the Presidential candidate.” Id. at *4.

Start with Bagdasarian for any threats case – its holding may export well to other threat statutes with unclear subjective/objective intent requirements.

For Further Reading: Hear about Bond v. United States, 131 S.Ct. 2355 (2011)? You will. This June decision on 10th Amendment standing joins the “65% good time” rumor plaguing federal facilities. Jailhouse lawyers tout Bond as the golden key that will ensure the release of our federal clients.

It ain’t, and it won’t.

For a “liberal” summary of Bond from a conservative commentator, see the article here. The case is just a vanilla standing opinion: the decision sadly does not invalidate the entire federal criminal code.

First Amendment flag from

Steven Kalar, Senior Litigator N.D. Cal. FPD. Website at


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