Split Ninth Circuit panel reverses conviction based on online threats to then-candidate Barack Obama

Though not exactly a sentencing decision, I suspect readers of this blog will be interested in a split opinion from the Ninth Circuit today in US v. Bagdasarian, No. 09-5052 (9th Cir. July 19, 2011) (available here).  Here is part of the start of the majority opinion in Bagdasarian, which was authored by Judge Reinhardt and joined by Chief Judge Kozinski:

Here, we review a district court’s 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 the following statements on an online message board two weeks before the presidential election: (1) “Re: Obama fk the niggar, he will have a 50 cal in the head soon” and (2) “shoot the nig.” These statements are particularly repugnant because they directly encourage violence.  We nevertheless hold that neither of them constitutes an offense within the meaning of the threat statute under which Bagdasarian was convicted.

Here is the start of the partial dissenting opinion in Bagdasarian, per Judge Wardlaw:

I concur fully with the majority’s analysis of the law of “true threats.”  The First Amendment prohibits the criminalization of pure speech unless the government proves that the speaker specifically intended to threaten.  Thus, in every threats case the Constitution requires that the subjective test is met. Virginia v. Black, 538 U.S. 343 (2003).  In this case, the statute at issue, 18 U.S.C. § 879(a)(3), also requires that a reasonable person would foresee that his statement would be perceived as a threat to harm a presidential candidate.  Because there is sufficient evidence supporting a finding of objective intent, Jackson v. Virginia, 443 U.S. 307, 319 (1979), and because even under the heightened standard of review that we apply to constitutional facts, Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058, 1070 (9th Cir. 2002) (en banc), the subjective intent requirement is also met, I conclude there is sufficient evidence to find Mr. Bagdasarian guilty of threatening harm against then-presidential candidate Barack Obama.