United States v. Bagdasarian

America, UNITED STATES of

Plaintiff-Appellee, BAGDASARIAN,

Walter Edward

Defendant-Appellant.

No. 09-50529. Appeals,

United States Court of

Ninth Circuit.

Argued Aug. and Submitted July

Filed (argued),

Ezekiel'E. Cortez Diego, San CA, for the defendant-appellant. Kyle Hoffman, W. Assistant United Attorney States (argued), Karen P. Hew- itt, United Attorney, States and Bruce R. Castetter, Assistant United States Attor- CA, ney, Diego, San for the plaintiff-appel- lee. KOZINSKI,

Before: ALEX Chief Judge, STEPHEN REINHARDT and WARDLAW, KIM McLANE Circuit Judges. REINHARDT;

Opinion by Judge Partial Concurrence Partial and Dissent by Judge WARDLAW.

OPINION REINHARDT, Judge: Circuit The election of our first black President produced a campaign person- with vitriolic and, ultimately, al attacks sentiments of pride good national will. The latter some, was part politi- short-lived on the alike, cians the vi- non-politicians 1114 rule; sup- dynasty under British Adams term as President Obama’s

triol continued mean-spirited, “a porters familiar called Jefferson To those office commenced. of fellow, the son of a half-breed history, none of low-lived political with American mulatto squaw, Virginia sired a surprise. Al- Indian come as this should.have Lincoln was derided father.”2 Abraham writes though “[o]bserv- Justice Scalia lunatic, savage,3 and ape, ghoul, as an few national elections have past ers of the Andrew Jackson was accused of the increase of while expressed concern about murder,4 of adultery opponents engaged ... character assassination that he slogans Grover Cleveland chanted supporters,”1 candidates and their political Still, a child out-of-wedlock.5 staple of had fathered mudslinging long has been U.S. Scalia, presidential unique election was Justice the 2008 presidential elections. racial, issue, religious, and unchar- in the combination of though analyzing a current ethnic that contributed to the extreme acteristically experience overlooked the bias during country’s enmity expressed points at various Founding Fathers. our of this bias was campaign.6 election of Much first contested although presi- misinformed because supporters of Thomas Jefferson black, dential candidate was indeed he was that incumbent John Adams want- claimed insisted, neither, as some Muslim nor for- marry daughter off his son to the ed eign George III to create an American born.7 King Comm’n, Crowds, Pr., Big Rapids Grand McIntyre v. 514 to Monitor 1. Ohio Elections 4, 2007, A3; 334, 382, May Toomey, Lot 131 L.Ed.2d Shamus "A U.S. J., (Scalia, (1995) dissenting). Says to with Race”: Durbin Obama Needs 426 Do Because He's Secret Service Part Boiler, Campaigns: 2. Paul F. Presidential Sun-Times, May Chi. at 6. George Washington George From W. Bush (2004). 7.False accusations that a President is mem- unpopular religious minority ber of an were Felknor, Dirty 3. See Bruce L. Politics 27 prevalent Wealthy in the 1930s. critics of (1966). policies Franklin Delano Roosevelt and his Deal, to the New Deal the Jew referred Herrnson, Congressional 4. S. Elec- See Paul convinced that the President was a Jew Campaigning Washing- tions: Home and in named Rosenfeld who "had surrounded him- (1995). ton 160 policy with Jews who made from a Jewish self benefit,” perspective for their Hasia R. own story The Cleveland at least See id. Diner, States, The Jews of United Williams, Kinney true. See Jean have been Novick, (2006); at 212-13 Peter (2003). Cleveland 26 Grover (2000). Holocaust in American Life See, Sullivan, e.g., Eileen Obama Faces More Today, great there are a number of critics Presidents-Elect, than Other Personal Threats of President Obama who continue to believe (Nov. 14, 2008), Huffington http://www. Post many he is a Muslim and who still refuse huffingtonpost.com/2008/ll/14/obama-faces- accept the fact that he is a native born more-personal_n_144005.html; Dave McKin- Green, Nearly citizen. See Lauren 1 in 5 ah, ney Targeting et A Plot Obama? 3 Custo- Muslim, Slavey Americans Thinks Obama is dy May Supremacists, Be Tied to Said to Talk Shows, 19, 2010), (Aug. http:// FoxNews.com Sun-Times, Aug. Shooting, Chi. Stadium www.foxnews.com/politics/2010/08/19-nearly- 26, 2008, at 3. americans-thinks-obama-muslim-survey- (reporting survey shows found "those presi- Then-Senator Obama was the first say president give who is Muslim him history dential candidate in U.S. for whom Stelter, job rating”); negative approval Brian protection Secret Service was authorized be- Radio, Talk Obama’s being presidency. On Television fore nominated for the See Decoder, Pickier, Citizenship, July Diggers Early N.Y. Times: Media Nedra Racial Slur Pro- (noting "conspiracy theorists tection Obama: He Called on Secret Service for Here, nig “shoot the country review a district court’s convic- board: fkd 879(a)(3), , years+ nig for another 4 what which has done tion under 18 U.S.C. right???? long ANYTHING felony to threaten to kill or do term???? makes it a in history, except Bagda- never major presidential candi- sambos.” bodily harm to a posted sarian also statements on the same Bagdasarian, The Walter date. defendant message that he had fellow, extremely board been was found especially unpleasant at intoxicated the time that he made the making the follow- guilty on two counts of two earlier statements.10 He repeated message on an online board ing statements trial that he drinking heavily had been presidential the election: two weeks before (1) 22. participant October Another on the niggar, “Re: fk the he will have Obama (2) board, Base, message John Air retired cal in the head soon” and “shoot officer, reported Force Bagdasarian’s sec- nig.”8 particu- the These statements are regarding ond statement they directly en- Obama larly repugnant because Angeles Los Field Office of the United courage violence.9 We nevertheless hold States Secret Service that morning. of them constitutes an offense same that neither Base told Secret Service that an indi- meaning of the threat within statute vidual identified the username “califor- Bagdasarian which was convicted. niaradial” alarming had made statements Background I. directed at the candidate. He provided also the Secret Service with the 22, 2008, On October when Barack Oba- Internet link address to the “shoot the looking ma’s election was more and more nig” message posting. board likely, Bagdasarian, under the username “californiaradial,” joined a Fi- “Yahoo! agent A Secret Service post- located this Group” nance—American International ing and the “Obama fk the niggar” posting board, on message which members of the board, and, on the Yahoo! message a week messages finan- public posted concerning later, provided Yahoo! the Secret Service matters, AIG, topics. cial and other At with subscriber information for california day joined, Bagda- 1:15 am on the that he radial@yahoo.com, Mesa, registered La posted following sarian statement on provided California. Yahoo! also the Se- message board: “Re: fk the Obama cret Service with the Internet Protocol niggar, he will a 50 cal in the history have head for the “californiaradial” email ac- later, twenty count, soon.” About minutes he which agents Service used to identi- posted fy another statement on the the IP same address from which the “shoot (1973) year (holding require- who have claimed for more than a that the imminence Ohio, Brandenburg ment under President Obama is not United States citi- 444, 447, receptive among 23 L.Ed.2d 430 zen have found ears some (1969), weeks,” by constitutionally pro- is not satisfied figures mainstream media in recent speech nothing tected "amountfs] discussing prominent some of America’s most advocacy illegal more than action at some figures). media time”). indefinite future complete appears second statement twenty 10.In minutes between the time at paragraph. the next "Obama, niggar” which he fk the thereby deprived statements, Neither statement nig” Bagdasa- and the "shoot the however, protection, constitutional because posted message "burp rian that concluded: urging others to commit violent acts “at some more VINOOOOOOOO.” Several hours la- ter, satisfy indefinite future time” does replied person’s message he to another requirement reported Bagdasarian’s imminence for incitement under that he had state- Indiana, authorities, up crybaby the First Amendment. Hess v. ments to "Listen boy, U.S. 38 L.Ed.2d 303 ole white I was drunk.” superseding filed the indictment issue niggar” fk the state- and “Obama here, charging Bagdasarian two counts IP led This address posted.

ments were 879(a)(3) under 18 U.S.C. with threaten- home agents the Service harm ing bodily upon to kill and inflict in La Mesa. major president candidate for the office of the two statements for A month after Bagdasarian of the United States. waived post- were was indicted which jury to a trial. His case was right his board, agents two the AIG ed on judge upon a district tried before fore- him and he admit- interviewed visited and going stipulated facts. The district court from the statements posting ted to Bagdasarian guilty found on both counts. asked, also told computer. he home When appeals. He in weapons agents that he had weapon one on a agents home. The found Analysis II. shelf; had nearby Bagdasarian said he The federal statute under which days la- weapons in addition. Four other indicted, Bagdasarian was 18 U.S.C. ter, war- agents executed a federal search 879(a)(3), “knowingly § makes it a crime to Bagdasarian’s rant at home and found six kill, willfully kidnap, ] and threaten[ firearms, including Remington a model bodily upon major harm ... a candi inflict rifle, muzzle-loading caliber as 700ML .50 date for the office of President or Vice well as .50 caliber ammunition. President, or a member immediate the hard agents The also searched drive A family of such candidate.” statute like re- Bagdasarian’s computer of home § criminal a “which makes form of Day an email sent on Election covered speech, interpreted must with the pure be subject, begins.” it with the “Re: And so clearly of commands the First Amendment stated, Dude, ? ? The email’s text “Pistol? States, in mind.” Watts v. United these, just get Josh needs to us one of 1399, 22 L.Ed.2d 664 nigga’s ear and The shoot POOF!” (1969). Although the cannot crimi State link provided webpage email to a adver- constitutionally protected speech, nalize tising large caliber rifle. Another email the First Amendment does immunize day sent the same with “true threats.” Id. at 89 S.Ct. 1399. stated, subject heading the same “Pistol in Virginia The Court held 538 plink plink plink you ... when use a Now 155 L.Ed.2d U.S. nigga you get 50 cal on a car this.” It (2003), that under the First Amendment propane included a link to a video of a punish threatening expres the State can tank, debris, junked pile and two cars sion, only “speaker but if the means to being up. messages These email blown expression communicate a of an serious appear would to confirm the malevolent to commit an act of unlawful intent vio previous nature of the statements as well a particular group lence to individual or malignant as own nature. 359, 123 individuals.” Id. at S.Ct. 1536. It in Unlike the case his first two objective is therefore not sufficient that earlier, board two statements weeks this reasonably perceive would observers such attempt time he did not to excuse his injury speech as threat of or death. ground inexcusable conduct on the that he in Because comments made some of was intoxicated. cases, begin by clearing up our we After the Secret Service filed a criminal confusion perceived as to whether sub- complaint against Bagdasarian objective for the jective analysis required is fk posting examining the “shoot the and “Obama whether a threat is crimi- when statements, niggar” nal threat statutes and the Government under various important respect ultimately most is a choice re- Amendment.11 Such First In order to affirm a conviction un- actu- same: dichotomy. The issue is flects a false any threat statute that der criminalizes whether, prosecuted as to a threat ally pure speech, we must find sufficient evi- statute, only a particular threat speech dence that the at issue constitutes a applied or subjective analysis need be threat,” as defined in Black. “true Because subjective objective and an both a whether requirement imposed by the true threat is we have analysis required. Whether Constitution, subjective test set particular threat under a stat- held that a forth Black must be read into all threat objective examined under an ute must be pure speech. that criminalize statutes 871(a),12 standard, § 18 U.S.C. as with that with respect difference is to some it to threaten the which makes unlawful statutes, require pur- we President, or whether we have held that an ported threat meet standard requires application of both the statute addition, for some we do not.14 standard, 879(a)(3),13 provision United States v. explained with U.S.C. As we Cassel, here, Cir.2005), analysis consider our its al- Stewart, bia/Willamette, See, e.g., States v. 420 F.3d Inc. v. Am. Coal. Activ United of Life ists, (9th Cir.2002) (en banc). 1007, (9th Cir.2005) (discussing per- 290 F.3d 1058 1018 inconsistency authority ceived in circuit as to always apply 14.Prior to we did not a constitutionally proscribable definition of subjective considering alleged test when viola- concluding “we threat” before that "true a example, tions of threat statute. For al- objective decide whether the or sub- need not though objective § 879 includes both an apply jective threat' definition should 'true test, Gordon, 1117, subjective see 974 F.2d at evidence here ... because the establishes only objective § 871 includes an and no sub- a statement was 'true threat' [the defendant's] test, 877, jective Roy, see 416 at F.2d even pro- under either definition and thus is not though require both statutes that threats be (footnote by tected the First Amendment” 871; 879, "knowingly §§ willfully,” made omitted)); Sutcliffe, United States v. 505 F.3d though specifically and even we have 944, Cir.2007) (9th (citing Stewart for 961-62 guidance,” setting "look[ed] for in forth the proposition ... law” that "our case is 879, statutory requirements Roy's §of in- objective, "contradictory” as to whether "an terpretation "closely analogous” § of the subjective, ap- [should rather than test be Gordon, 974 F.2d at 1117. plied] [the defendant's] to determine whether appears Roy impose It that we tried in a threats[,]” statements constituted true but 871, § lower burden for conviction under holding "any error in the 'true applies against sitting which ident, to threats Pres- threats’ljury] was harmless” be- instruction “[a] because President’s death in office jury "the court cause district instructed repercussions has worldwide and affects the specific intent to threaten is an essential security and future of the entire ... nation conviction, 875(c) § element of a and thus the regardless person making of whether the jury necessarily Defendant had the found that actually intends to assault the Presi- subjective convicting intent to threaten in him (citation Roy, dent....” 416 F.2d at 877 offense”). omitted). Although Roy, sought punish make it easier Romo, 1044, 12. See United States v. 413 F.3d 871, adoption § President under of an Lincoln, (9th Cir.2005); v. 1051 United States objective opposite standard serves the func- 703, Cir.2005); (9th 707 United 403 F.3d requires tion after Black. Because Black Hanna, 1080, (9th States v. 293 F.3d 1083 subjective test must be met under the First States, 874, Cir.2002); Roy v. United F.2d 416 Amendment or not the statute re- whether (9th 1969). 877 Cir. it, quires test is not an alternative requirement an additional over-and-above but Gordon, 1110, subjective 13. See United States v. standard. (9 1992), suggested Cir. overruled on other that we have 1117 th To the extent Romo, grounds by 413 F.3d at Planned Parenthood the Colum otherwise in footnote law,” supported our own case sufficient evi- though “vagaries ments] dence,” question we must answer “entirely than clear at made it less id. jury the facts as found “whether consistent,” intent to threaten or “whether fact of a establish the core constitutional necessary part constitutionally of a is a ” Stewart, 420 ‘true threat.’ F.3d threat,” “af id. at Black punishable subjective analysis intent un- 1015. Our always own dictum—not ad firmed our 879(a)(3) § der therefore subsumes the ‘the element of hered to in our cases—that subjective inqui- intent-based true threat sepa intent the determinative factor [is] ry in Black. as described expression unpro from rating protected ” (al at 632 tected criminal behavior.’ Id. A. Elements of the Offense original) (quoting United States teration Two elements must be met for Gilbert, Cir. statement to constitute an offense under 1987)). made clear that Black’s Cassel 879(a)(3): objective § 18 U.S.C. and sub constitutionally proscriba of a “definition jective. The first is that the statement binding though ble threat is ... on us even by people hearing would understood be holdings it is in tension with some of the reading expres it in context as a serious language prior cases of this circuit.” injure major kill sion of an intent to omitted).15 (citation Id. at 633 Gordon, candidate for President. See 879(a)(3), provision § Because F.2d at 1117. The second is that here, requires issue intent as intended that the defendant statement be construction, statutory a matter of see Bag understood as threat. Id. Because Gordon, necessarily 974 F.2d at it dasarian’s conviction can be incorporates inquiry the constitutional only if upheld both the and sub speaker commanded Black: Did the met, jective requirements are neither stan subjectively speech intend the as a starting point dard is the obvious for our In threat? order to “determine whether analysis, and our resolution of either issue statutory the verdict ele- as an holding.16 [under serve alternate (declining, pre-Black prec- objective provide n. 6 1051 based determination does not edent, apply subjective criminalizing intent test under worthwhile test or statutes 871(a) § against “because [the defendant] has not President or others should issues), analysis require only subjective merely raised First such Amendment test. We point paradox would be inconsistent with Black and be out a must in our treatment of threat requires proof limited to cases in which the that Black defendant chal- statutes now of in- lenges compliance only objective with the tent under the First Amendment in all such part of the test and does not contend either cases. subjective requirement not been has passage just quoted, In a footnote to the met, applied or that the statute has been in a 15. Lincoln, distinguished Cassel United States v. contrary manner that is to the Constitution. (9th Cir.2005), 706 which re- pure In all other circumstances in which pre-Black suggest statute, lied on cases to in dicta that speech prosecuted under a threat requires application the First Amendment of apply exclusively objective we cannot an stan- objective an rather than a test. dard, any subjective incorpo- test must Cassel, pointed 408 F.3d at 633 n. 9. Cassel requirement rate the constitutional set forth “did not out Lincoln raise or consider the in Black. 538 U.S. at 123 S.Ct. 1536. Black," implications Virginia of and there- at Because the statements issue in the case fore, effect, that Lincoln must be treated tests, pass before us fail to either of the two simply pre-Black as a Id. case. ques- we see no reason here to consider the objective tion whether to retain an test for Co., Realty threat statutes in view of Black. 16. See Woodsv. Interstate clear, (1949) suggesting To be we are not that an L.Ed. 93 1524 Objective Understanding Neither statement constitutes a threat ordinary in the meaning the word: “an begin with the test. One We expression of an ... intention to inflict 879(a)(3) § is whether question injury ... on another.” Webster’s Third person who heard state- reasonable (1976). Dictionary New International interpreted it as a threat. ment would have fk niggar” The “Obama statement is a Gordon, F.2d at 1117. This prediction that Obama “will have a 50 cal requires the fact-finder “look[] test conveys explicit in the head soon.” It no state- [the] the entire factual context implicit part Bagdasari- or threat on the events, including: surrounding ments kill injure an that he himself will or Oba- reaction, listeners’ and whether ma. im- Nor does second statement Id. It are conditional.” is neces- words part a threat. “[S]hoot is instead then, Bagdasa- sary, determine whether imperative encourage intended to oth- statements, considered in their full rian’s action, ers to take violent if not simply an context, by those to interpreted “would be expression rage or frustration. the state- whom the maker communicates statute, however, does not criminal- of an inten- expression ment as a serious predictions ize or exhortations to others to bodily harm on or to take the tion to inflict injure or kill the President.18 It is difficult Roy, Id. (quoting life of [Obama].” to see how rational trier of fact could 877-78). The evidence is not suffi- reasonably have found that either state- support cient to a conclusion that reason- ment, context, on its face or taken ex- within postings who read the able presses a threat by Bagda- Obama or the relevant context would have without sarian.19 Bagdasari- to mean that understood either kill no injure disputing an threatened to the Presi- There is that neither of dential candidate.17 statements was conditional ("[W]here approvingly every presidential or more a decision rests on two almost circuit, relegated catego- grounds, expressed none can be to the in our threat case we doubt dictum.”). ry of obiter 871 makes criminal an intention tendency encourage injure others to Parenthood, applied Planned a stan- Roy, President. 416 F.2d at 877. We ex- ques- to de to the dard of review close novo plained Congress prevent that "if desired to pure speech tion whether constitutes a “true President, incitement of others to assault the unprotected by threat” the First Amendment. then it could have limited the statute to make Here, parties 290 F.3d at 1070. both briefed it a crime to incite or induce others to assault argued and the case on the basis of the suffi- attempt or to assault the Id. President." Hav- ciency-of-the-evidence standard of Jackson v. ing previously guidance,” for in “look[ed] 2781, Virginia, 443 U.S. 61 879, construing Roy's interpretation § to reason, (1979). 560 For that and L.Ed.2d 871, Gordon, “closely analogous” § we would decide this case the same because 1117, Roy refusing F.2d at we here in follow way under Planned Parenthood or Jack- either qualifies to find that incitement anas offense son, we do not determine what standard of § 879. We also reach that conclusion any applies here or in future case. review independently plain the basis of lan- that “an 18. The Fourth Circuit has written guage of the statute. See 18 U.S.C. guilt § [under essential element of which 879(a)(3) (making "knowingly it a crime to punishes threats the President or suc- kill, willfully kidnap, and threaten[] presidency] present cessors to the is a inten- bodily upon major inflict harm ... a candi- injure either to ... or to incite others to tion President.”); date the office of also for see injure,” but added that of what "[m]uch (discussing supra at 1115 n. 9 imminence Patillo, say here dicta.” States v. is United requirement for incitement under the First (4th Cir.1971) (en banc). No Amendment). incitement other circuit has concluded that statute, interpretation Bagdasari- punished 19.The dissent’s can be under a threat and forty years ago, in a case since cited an’s statements as threats can be traced its over 705-06, danger- at alarming that were and 89 S.Ct. 1399. The both statement, said, which referred defendant there had now I “[a]nd The first

ous. already my who “will have a have received draft classifica- “niggar” to Obama as a soon,” coupled got report in a racial tion as 1-A and I have for 50 cal the head during my physical Monday coming. forecast this I am slur with an assassination they not If campaign going. carry that would ever make me highly controversial country’s first rifle the man I want ultimately get my make Obama first troubling sights No less is the is L.B.J.” Id. at president. black imploring interpret second statement The Court held that “we must defendant’s nig,” “country language Congress ‘against to “shoot the lest the chose others ” years + background profound fkd for another because of a national commit- [be] history” person principle public has a black ment to the that debate on “never uninhibited, robust, right.” “done ANYTHING There are issues should be many wideopen, may unstable individuals this nation to and that it well include vehement, caustic, and other firearms weapons unpleas- whom assault and sometimes available, readily might antly of whom sharp government are some attacks on they doing the nation a public adding believe that were officials’ lan- “[t]he guage political service were to follow arena ... is often abusive, in- vituperative, commandment. There nevertheless and inexact.” Id. (citations omitted). sufficient evidence either statement 89 S.Ct. 1399 constituted threat would be construed argues among The Government genuine a reasonable as threat relevant elements of the factual context is by Bagdasarian against Obama. messages anony- defendant’s were words, mous, punishes posted only When our law we must under the screen name surrounding examine the circumstances to “californiaradial.” grant We some significance discern the of those a speaker’s anonymity words’ circumstances could utterance, but not perception must distort or embell- influence a listener’s danger. plain meaning ish their so that the law But support the Government offers no for Here, meaning reach them. imperative its contention that “shoot absolutely plain. They the words is prediction do or the that Obama “will constitute a fall threat and do not within have a 50 cal in the head soon” would be punished by the offense the statute. In more likely regarded rather than less to be Watts, Supreme a con- Court reversed threat under circumstances in which viction under a speaker’s identity statute. is unknown.20 misplaced bodily reliance reproductive on three cases. See Dis- harm a doctor in the Hanna, sent 1128-29. which was decided community health services who was identified Black, one, before reversed the threat conviction given previous pattern on the of ‘WANT- trial, noting and remanded for a new that if posters identifying specific physician ED’ again the defendant were "convicted based on by physician’s followed that murder.” 290 evidence, w[ould] admissible he be entitled to present F.3d at 1063. The facts here no such appellate independently have the court review pattern. Finally, altogether Romo declined surrounding the record to ensure that the speech address whether the defendant’s con- jury facts found the establish the constitu- 871(a) stituted a true under because tional fact of a true threat.” 293 F.3d at he "has not raised First Amendment issues.” Parenthood, 1088. Planned decided also be- 413 F.3d at 1051 n. 6. readily distinguishable fore is on the circumstances, anonymity may In some question law and the facts: can There be no generate greater group that the concern because listeners anti-abortionist "was aware rely 'wanted’-type poster likely speaker's identity that a cannot would be to dis- interpreted any aas serious threat of death or count serious intentions. Doe ex rel. Cf. effect, a threat to candidate Obama.” Dis- nig’ in other circum- as Whatever fact, in- stances, respons- on a reasonable In anonymity sent at 1129. none statements, Bagdasarian’s terpretation anything about a threat. Their es said to which he message financial board that may thought Bag- well have authors discussion them is non-violent messages impermissible were dasarian’s any percep- tend to blunt that would forum other reason or that offensive for some there were seri- made tion that statements racism or violence. they encouraged We violence. expressions of intended ous why people the fact that several fail to see case, messages to the When, negative look to had reactions “[c]ontex- in this they ... that have that [could] tual information should be taken to mean [Bagdasarian’s] state- bearing on whether interpreted them as a threat. It is others reasonably interpreted be as might ments certainly significant among more that Parr, threat,” 545 F.3d United States read persons numerous who — cert, (7th denied, Cir.2008), 491, 502 messages, only the record reveals one who -, 173 L.Ed.2d U.S. sufficiently actually notify was disturbed (2009), only evidence is possible the authorities.21 mem- that or four discussion board three that The Government contends two addi- to alert au- they planned that bers wrote that Bagdasarian’s tional facts show state- nig” posting, to the “shoot thorities reasonably might interpreted ments be as reader, Air Force Offi- although only one that Bagdasari- a threat. The first is when Base, actually The dissent identi- cer did. an statement that made the Obama “will as the responsive postings “[m]ost fies the soon,” Bagdasari- cal in the head have 50 reasonable telling” evidence that a actually weapons .50 had caliber Bagdasarian’s mes- perceived have would ammunition in his home. The is so, second doing In it mischar- sages as a threat. Day, that on Election two weeks after postings “indicat[ing] acterizes these posting messages, ‘shoot the he sent an email perceived that [their authors] Stipulated only Pauahi 21. The Facts indicate that Doe v. Kamehameha Schs./Bernice Estate, Bishop Cir. nig' message,” Base "saw the ‘shoot the Kozinski, C.J., (Reinhardt, J., 2010) joined by posting he "was concerned that threat- banc) rehearing dissenting denial of en from Obama,” ened harm to Barack and that he may (rejecting propositions "plaintiffs Angeles "telephoned the Los Field Office of fearing be unreasonable in severe threats reported the United States Secret Service they physical are made via retaliation because nig' posting.” The Record does the 'shoot "litigants do not reason the internet” or post- not contain evidence as to whether Base they ably fear threats of serious harm when response ed a board. Even people, are made unidentified some of Virginia, Jackson v. out”). carry them whom not intend to (1979), the 61 L.Ed.2d 560 facts circumstances, however, listeners other support Bag- are insufficient to a verdict that anonymous may give state less credence dasarian threatened to kill Obama. The "crit- identify any because cannot asso ments inquiry” in Jackson “is whether the rec- ical speaker group and a ciation between the evidence,” by any ord when viewed rational violence, engages ascertain or otherwise light fact in the most favorable to the trier of speaker an individual whose threat prosecution, reasonably support "could seriously. partic taken Whether a should be beyond finding guilt a doubt.” reasonable speaker's would be taken more or ular threat 318-19, (emphasis add- Id. at 99 S.Ct. 2781 seriously anonymously may de if made less Here, ed). sup- the record is far too thin Still, speaker all threats pend on who that is. port such a conclusion. See also 1119 n. 17 major a the President or Parenthood, (noting ap- that in Planned seriously taken until it is candidate must be novo). plied review close to de to do so. a standard of established that there is no reason (alterations read, ... plink plink plink that “Pistol at 1117 in original) (quoting (1982)). 21,218 Cong. Rec. cal you nigga Now when use 50 on car this,” you get and linked to a video of 1118-21, have explained, supra We junked being debris and two cars blown why Bagdasarian’s neither of statements up. Nobody read the board who unpro- its face constitutes a true threat however, postings, knew that he had .50 by tected the First Amendment. Most gun caliber or that he the later would send significantly, predictive one is in nature and the exhortatory. emails. Neither these facts could there- other For the same reasons, fore, test, the evidence is not sufficient under an “have a for bear- any reasonable of fact finder to have con- ing [Bagdasarian’s] on whether statements beyond cluded a reasonable doubt that might reasonably interpreted be as a Bagdasarian intended that his statements threat” a reasonable in posi- Jackson, be taken as threats. See tion of those who saw his postings on the U.S. at 99 S.Ct. 2781. Both under the Parr, AIG discussion board. 545 F.3d at requirement constitutional established in § Black that we must read into statutory requirement under the that we Subjective Intent Gordon, found extant in the district court’s nig” Even if “shoot the will have “[he] inference of intent to threat- in reasonably 50 cal the head could soon” en is in unreasonable taken context and perceived by objective have been observ- not, does even light when considered in the context, ers as threats within the factual most prosecution, favorable to the lie with- this alone not have enough would been permissible range of interpretations Bagdasarian convict under 18 U.S.C. of message board postings. As a mat- 879(a)(3). § The Government must also law, ter of neither statement may be held show that he made the statements intend- constitute “true threat.” ing be taken as a threat. A As previous section, we discussed in the speaker statement that the does not intend prediction that Obama “will have a 50 aas is afforded pro- constitutional cal in the head soon” is not a threat on its tection and cannot be held criminal. face because it convey does not the notion Black, the explained Court that the State Bagdasarian plans himself had to ful- may punish only those threats which the fill prediction that Obama would be “speaker means to communicate serious killed, either now or the future. Nei- expression anof intent to commit an act of ther does the “shoot statement particular unlawful violence to a individual reflect the defendant’s intent to threaten group of individuals.” 538 U.S. injure he himself will kill or Obama. Gordon, S.Ct. 1536. And we held as Rather, “shoot nig” expresses the im- a matter statutory interpretation perative that some party unknown third Congress ‘knowingly “construe[d] and will- should take violent action. The statement fully’ § requiring [in proof 879] of a makes no reference to him- ” threat,’ intent to make a so, statement, self and like the first cannot thus requires application subjec- of a reasonably express be taken to his intent tive as well as an test. 974 shoot Obama.22 22. We are aware that judges an Internet radio host Seventh Circuit who had issued a rul recently jury was convicted a federal ing disagreed that he with. See United States 115(a)(1)(B), punishes U.S.C. which Turner, 1:09-cr-00650-DEW-JMA alia, against, judge inter a federal with (E.D.N.Y. 13, 2010); Fass, Aug. Blogger Mark intent to intimidate or retaliate. He was con Guilty Threatening Judges Found in Third victed regarding for statements made three analysis my is bad ... trust posted our of the us website] As with test, much, much, not confine our examination say we do get [it] when we can subjective state- intent to defendant’s you again worse.... call this house [I]f Relying on alone. United States ments ..., personally you I will back to the send (9th Cir.2007), the 505 F.3d 944 Sutcliffe, you from where Id. at 951-52 hell came.” that points to the two facts Government (first and alteration omission second in analysis in our we discussed original). Bagdasari- that understanding as evidence Bagdasarian’s statements, that Given (1) an make a that he intended to threat: fk the niggar, “Re: Obama he will have a possess to .50 caliber was later found cal in the head and “shoot soon” “Oba- gun like the one he mentioned express part fail to on his any intent (2) that the niggar” posting, ma fk the and action, any pos- to take the fact he use of Day Election email referred to the weapons sessed the is not sufficient to car.” fact nigga “a cal on a Neither establish that he to threaten intended Oba- beyond prove a reasonable sufficient Similarly, make ma himself. the Election Day intended to doubt when, two Election prosecu- threat weeks before emails do little to advance Day, for he two statements They tion’s case. simply provide addition- indicted. which he was al information —weblinks to a video of de- junked two being bris and blown up cars Sutcliffe, we affirmed a conviction and to advertisement for assault rifles statute, 18 U.S.C. under another which, purchase Bagda- available for online—that 875(c), § knowing addition to the threat, of an re- sarian have transmission interstate believed would tend to quires specific intent to threaten. 505 encourage the recipient email’s take vio- 960-61; 952, also United F.3d see But, lent action Obama. as we Twine, 676, States v. explained, injure have kill incitement to Cir.1988). held that court We the district qualify candidate does not allowing did not abuse its discretion 879(a)(3).23 § under an offense present Government evidence Taking postings the two board gun possession to demonstrate defendant’s all in the context of of the relevant facts actually he to threaten vio- intended circumstances, prosecution and failed lence. Id. at 959. fact of the defen- sufficient to establish present evidence gun possession was not determina- dant’s beyond Bagdasari- a reasonable doubt however, intent, tive of the defendant’s but subjective an had the intent to threaten a just among many pieces of one evidence For the presidential candidate. same rea- language relevant to the and context of the sons that his fail to meet statements determining that we considered in given any element rea- requisite specif- had defendant sonable construction of the words important ic threaten. intent to Most postings, those statements do not consti- first-person highly were the Sutcliffe threat,” tute a “true are there- “I specific messages character such as armed,” protected speech fore “I’m now “You First you,” will kill number Amendment. See seeing [your plate think license Trial, L.J., Aug. question Federal N.Y. at 1. answered Black or the result that appellate That case has not reached the courts we reach in this case. analysis not affect here. It and thus does our change any would in event cause us to supra at 1119 23. See n. 18. respect constitutional our view with to the 1124 Accordingly, posting

123 his conviction iforniaradial’s first about candidate Obama, a.m., must be reversed. at 1:00 was to the “thread” Hamas, Hezbollah, Syria, headed “re: and REVERSED. 0,” Iran favor 100 to Obama where he said WARDLAW, Judge, concurring fkers, up Circuit all please “blow the mother car- part: part, dissenting pet give bomb the middle east ... me the switch, no prob, thump poof nig- sand fully majority’s analy I concur with the gar.”1 Two minutes later on the same of the law of “true threats.” The First sis posted: really thread he “I would lose no prohibits Amendment the criminalization sleep gone if middle ... morons nuke pure speech government of unless the a.m., bombing....” At 1:15 under anoth- proves speaker specifically intend subject Thus, er thread with the header “OBA- in every ed to threaten. MA,” posted he the first of requires case the Constitution the two threats subjective Virginia charged test is met. v. in the indictment: “fk the niggar, 538 U.S. 123 S.Ct. 155 L.Ed.2d cal in he will have the head soon.” (2003). case, this the statute at that, Six minutes after Californiaradial issue, 879(a)(3), requires 18 U.S.C. also pro-bomb combined his and anti-Obama a reasonable would foresee rhetoric in post another on the “OBAMA” that his perceived statement would be as a “yea, thread: people the honest have NO presidential threat to harm a candidate. guns and bags, niggars drug the scum sup Because there is sufficient evidence do, fks thanx obombhaaaaa.” He reiterat- porting finding objective intent, of Jack ed his racist animus aon thread referenc- 307, 319, Virginia, son v. ing heritage: monkey, Obama’s Irish “full (1979), 61 L.Ed.2d 560 and because box, hey you can crank I the music wanna ” heightened even under the standard of puppet monkey see the dance.... Four review that apply to constitutional later, added, minutes at 1:26 a.m. he “a facts, Planned Parenthood the Colum lepraaaaaaniggggggggamuch? blank that bia/Willamette, Inc. Am. Coal. of Life one, a.m., yahoo At a-holes.” 1:35 Califor- Activists, Cir. niaradial created his own anti-Obama 2002) (en banc), intent re thread, subject under the header “shoot met, quirement I is also conclude there is the nig.” There he the second sufficient evidence to find Mr. charged “country the indictment: guilty threatening harm then- , years+ fkd for nig another what has Barack candidate Obama. right? done ? ? ? long ANYTHING ? ? ? in history, term? never except sam-

I. bos.” In the wee morning hours of the At point, this the other board Bagdasarian,

October Mr. participants reacted to the serious nature “californiaradial,” the user joined name of Californiaradial’s threats. “Dan757x” Yahoo! Finance —American International immediately responded on the board, “shoot the Group message an internet site on reported by me, thread: “You’ve which been public post members of the could messages matters, good boy.” ole’ concerning financial white “Freddie226” AIG, Dan, and other hot topics day. weighed Cal- in to support post- who next posts appear 1. The here as do in the nations are omitted. record; nature, desig- because of their "sic” reports provided photograph of link to a of a everyone type this rifle hope ed: “I thread, same on a Barrett A the “Sni- Rifles website. second garbage.” Under “Be the posted: Bagdasarian advised Federal email Mr. sent perlagent” same ...,” monitoring subject stated, is day Law Enforcement under the same line “I reporting advised: am ... plink you Now when plink plink “Brown.romaine” “Pistol And, Service.” in this to the Secret cal post nigga you get use a 50 on a car this.” fact, Base, Air a retired Force officer John The email then directed the reader to a nig” who “shoot the saw Californiaradial’s being YouTube video of car blown up. report the threats to the Los message did II. the

Angeles Office of United States Field because, set as forth in the Secret Service particular statement “Whether Facts, Stipulated he was “concerned that properly be considered to be a threat is the threatened harm to Barack posting governed an standard— Obama.” whether would reasonable foresee interpreted by statement would be agent response,

In Secret Service those to whom the maker board, communicates message the located the searched the expression statement as a serious nig” posting, “shoot the also discover- intent to harm or assault.” Planned Par- in the head” posting. ed the “50 cal From enthood, 290 (quoting F.3d at 1074 Yahoo!, Service IP United the Secret obtained the Orozco-Santillan, States v. 903 F.2d registered the user address for as “califor- (9th Cir.1990)). niaradial,” “Alleged and it used that information to get light from Cox should be considered in of their subscriber data Communica- en- context, tire factual including This trail of bread crumbs led the tions. sur- Mesa, California, and, rounding La events and reaction of the Secret Service listen- 21, 2008, Orozco-Santillan, agents appeared on ers.” 903 F.2d at November “[Cjontext doorstep. in Californiaradial’s critical a true threats case history give meaning can to the medi- that, world, in They discovered real Parenthood, um.” Planned F.3d at cy- known in user as “californiaradial” Bagda- Mr. determining whether Bagdasarian. berspace Bag- was Mr. Mr. sarian’s statements constituted posting dasarian admitted to “fk the threats, we “at must look the entire factual head” message and “50 cal from including: context those statements asked, computer. When home he stat- events, reaction, surrounding the listeners’ weapons ed that he had his home. A and whether the words are conditional.” days search warrant executed a few later Gordon, United States possessed revealed Mr. (9th Cir.1992). firearms, including six a Remington model muzzle-loading Reading charged 700 ML .50 caliber rifle. the two statements isolation, Agents discovered .50 also caliber ammuni- indictment the majority Bagdasarian’s they tion in Mr. home. The dissects them to conclude that were agents Bagdasarian’s searched Mr. com- not even It to consider threats. fails puter, they history discovered a backdrop where November ominous of America’s violence, from Bagdasa- uniquely email Mr. racial racial and vio- rian with the foreboding associate lent undercurrents of the 2008 subject election, it entirety Bagdasarian’s line “Re: And so of Mr. begins.” stated, Dude, ? ? postings email “Pistol? two weeks Josh October before these, just election, who get needs to us one shoot the the 2008 and the listeners not nigga’s only perceived posts threatening car and POOF!” The then email made, they only

when were but who acted on Not did this animus materialize in at perception.2 one attempt, least viable assassination see McKinney, Dave Frank Main & Natasha portended Mr. statements Korecki, Obama?, A Targeting Plot Chi. harm impending no less because did Sun-Times, 26, 2008,3 Aug. height- but the completely spell out the threat. For ened fear that candidate Obama would be example, given country’s history this of Ku target of spurred Depart- violence violence, Klux Klan a burning cross can Security ment of Homeland to authorize “a signify message of intimidation” and protection early May Secret Service as as injury “the possibility of or death.” 2007, before candidate Obama was even 357, Parking 538 U.S. at a 1536. presidency, making nominated for the him clinic, Ryder truck outside an abortion af- only presidential candidate to receive ter the City bombing, Oklahoma can indi- protection Pickier, early.4 so Racial Slur. cate a serious intent to harm. Planned Parenthood, And, Certainly 2008, 1078-79. country’s as of fall our recognized, the district court experience the wake collective with internet threats 11, September telling flight of a postings attendant that presaged tragic events you carrying joke. are a bomb is not a it all likely made the more that a reason- Mr. posted at a person time when able would foresee that even against violent and racist threats anonymous candidate internet postings would be being very seriously. Obama were taken perceived as country threats.5 The had Though currently President Obama re- witnessed the High 1999 Columbine House, sides in the White prospect shootings of School by Dylan Klebold and ignited Harris, his election polarizing racial ani- Eric posted who had death mus, including website, “racist chatter on white su- threats on his along with discus- premacist Pickier, Web sites.” Nedra Ra- sions of bombmaking killing students Triggers cial Slur Early Protection and teachers. See Janofsky, Michael for Obama, Press, 4,May Associated 2007. Parents Inquiry Want New into Colum- majority disregards 2. The also the evidence that would end with the assassination of can- presented country's experience trial of our by didate Obama was derailed the arrest of political with assassinations. The sheer num- with, charged two among men who were oth- presidents (nearly ber percent of ten things, making against major er served) presidents who have who have been presidential candidate. See Richard A. Serra- targeted by guns and killed assailants with no, Obama, Plotting Pair Accused to Kill history our nation’s short undermines the Blades, Times, 28, L.A. Oct. 2008. A conclusion that a reasonable would man Wisconsin who threatened over the in- interpret Mr. "50 cal ternet to kill shortly President-elect Obama joke head” political comment as a or mere inauguration before the for what he claimed Moreover, example rhetoric. as the recent "country’s good” was the own was arrested in shooting Representative of Arizona Gabr- Arrest, Mississippi. Obama Threat Leads to demonstrates, ielle begins Giffords what as a Times, L.A. Jan. 2009. post erupt bizarre on the Internet can as a devastating outburst of violence. See Alex- Hillary 4. Then-Senator Clinton received Se- Berzon, andra John R. Emshwiller & Robert protection throughout cret Service her candi- Guth, Mind, Postings A. J., a Troubled Wall St. dacy Lady. due to her 12, 2011; status as a former First Lacey Jan. Marc & David M. Pickier, Herszenhorn, Racial Slur. Congresswoman Is Shot Tucson, Times, Rampage Near N.Y. Jan. majority acknowledges 5. The speaker’s that a 2011. anonymity can render a statement more plot planned A similar on the internet threatening. supremacists involving killing spree white 6, 2002; very dramatic reac- Times, there to be expect N.Y. Jan. Killings, bine Casillas, Teen Pleads Not Ofelia Johnson, Is tion.” Evidence Columbine Kirk Threat, L.A. Making Bomb Guilty to Display, N.Y. Chilling Public Placed Times, 20, 2001. 2004; Mar. Murphy, Times, Kim Feb. Hid- Massacre Were

Warning Signs involving internet In a similar case Times, 9,May L.A. Sight, Plain den in threats, judge in 2009 a federal district Orange days after Turner, a motion filed Harold denied a on an Internet teenager posted County host, seeking radio blogger and internet that he would “start message board him for dismiss an indictment hurt those that have Campaign to Terror judges of the United threatening three me,” neighbor- the teen went on hurt Appeals for the Seventh States Court of man and killing shooting spree, hood blog, Turner had Circuit. On his Yoshino, Threats On- Kimi daughter. his judges, and had information about Tell?, L.A. Duty a Is There line: say the first to this written: “Let me be 2005, 2, Times, Also in Nov. 2005. deserve to be killed. plainly: judges These in participant an “avid teenager who was replenish the tree of liber- Their blood will post- ... with groups Internet discussion pay to assure freedom ty. price A small weap- mention name that ings under his Kravets, Blogger for millions.” David conversa- amid broader and violence Say, ons Judges, to Murder Feds Threatened time paranormal, politics, Wired, 24, about tions 2009. The district court June travel, Big Turner, Foot” killed and reincarnation that the fact that who lived found high at his Jersey, posted and himself in Chi- people New seven Johnson, judges Kirk Sur- did not diminish the cago-based school Minnesota. threat, reasoning: with Rampage High School vivors Left of Questions, N.Y. Many Injuries physicians an era when have been In 25, Times, 2005. places worship; Mar. in their of murdered slain; a Judges of have been families 2007, following disturbing on- inAnd Judge of the Eleventh Circuit Court shot Tech student posting, Virginia line Judges have Appeals and State Court on the cam- thirty-two people and killed shot; a Federal Court- up been blown Carey, Rampage Kill- Benedict For pus. by explo- ripped apart house homemade ers, “Troubled” Descriptions, Familiar ” sives, dissent political all in the name of Times, “Loner, Profile, N.Y. but No fanaticism, it cannot be said religious experi- In wake of this Apr. that Defendant’s. ence, to conclude that on- only logical it is Turner, WL United States violence would impending line postings (E.D.N.Y.2009). As *3 people as seri- by reasonable perceived be out, Turner was subse- majority points attorney put As one district ous threats. convicted. quently student’s threat to following yet it another classmates, dispute that Mr. “Any majority kid that makes The does shoot noncondi- statements were Bagdasarian’s nature on the tail a direct threat of this tional,6 dangerous, but finds reasonably alarming, and can happened Santee what States, subjective intent re- inapposite. Black's majority v. United cites Watts 6. The prevents open public 22 L.Ed.2d de- quirement free and curiam), (1969) proposition (per for being swept up prohibition in the bate from Bagdasarian’s interpret Watts, however, state- that we must Su- "true threats.” light national commitment ments in of our state- preme examined the defendant's Court While this open political debate. free and objective standard and con- under the ment correct, undoubtedly Watts itself principle is threatening merely depicted their nature blunted along President Clinton Bagdasarian posted fact that Mr. them on with statements such as “KILL THE BEAST,” “666,” message financial “non-violent” board. jeffer jackal,” “willie Although MURDER, board itself focused “WANTED FOR DEAD OR meltdown, financial AIG’s 2008 the indi- “Although ALIVE.” We held that: Han- posted naturally viduals who into veered na explicitly did not indicate that he was political implications crashing going President, to kill jury could financial markets.7 Mr. conclude that a reasonable Han- postings own on the board contained in- position na’s would foresee that such state- violent, creasingly political, and vicious at- ments would perceived be as threats targeting tacks candidate That Obama. he recipients of the statements.” Id. at posted on a financial message board does threats; not diminish the nature of the Similarly, Romo, in United States v.

just no would be less diminished Cir.2005), an opinion had he shouted them on the floor of the upon by court, relied up- the district Exchange. New York Stock held a threats conviction where then-incar- majority focuses narrowly on the cerated Romo “wrote and mailed a letter charged threats and dismisses them as stating that put someone should bullet imperatives predictions. mere or But our the President’s head and that he would contrary. case law is to the doWe not like to do it.” We found this to be an require that speaker the in a threats case “unequivocal” threat, stating that a “clear- explicitly threaten that he himself is going er threat is difficult imagine.” to at Id. injure victim; to kill or the intended rath- And, Parenthood, in Planned er, we examine the surrounding circum- anti-abortion activists circulated on in- the stances to determine whether reasonable ternet and elsewhere a series of “WANT- person in speaker’s the shoes would fore- ED” posters identifying “GUILTY” see that his perceived statements would be abortions, performed doctors who and who as threats. murdered, were along thereafter with a “Nuremberg example, poster

For Files” United States v. Han- where lines na, were Cir.2002), through 293 F.3d drawn 1082-83 the names of the physicians. determined that there murdered Although post- was sufficient the jury evidence for a ers did to conclude that Hanna not contain an explicit threat of President,8 harm, had threatened the it proper where no was consider them explicit Rather, Parenthood, threat had been made. context. Planned 290 F.3d at the underlying documents charges the 1064-65. We concluded substantial evi- eluded that the statement at issue would not the changed during economic situation had perceived be as a threat because the state- the administrations of President Clinton and conditional,” “expressly ment was than rather Bush, might expected President and what be Thus, only immediate. Id. does Watts fail from a President Obama. led This to still support majority’s Bag- the assertion that by Bagdasarian other threads not started Mr. meaning "plain,” dasarian’s was it lends fur- entitled "Obama will make the U.S. a 3rd support my ther objectively view "Hamas, Hezbollah, Country” world Syr- threatening Bagdasarian's postings, nature of ia, and Iran favor Obama 100 to 0.”

which were not conditional. Hanna, only we reversed the conviction 7. A thread Nobodys headed "re: Watchin due to other trial emerged Store in errors which indicated that America” on which "Sheee- yaright” posted jury’s up may "its to us.No Obama.” deliberations have been tainted There ensued a by improperly colorful discussion about how admitted evidence. “shoot as a threat to candidate convictions under supported denee Obama, report- and the threat was in fact Act,9 in that the anti-abortionist FACE Service, Vanted’-type that a ed to the United States Secret “was aware group prevent into action to interpreted as a which then launched likely be poster would materializing. from There can bodily harm a the threat threat of death serious “construing health services be no doubt evidence reproductive in the doctor one, prosecu- giv- light most favorable community who was identified tion,” Nevils, at (citing of ‘WANTED’ previous pattern en Jackson, 2781), at physician fol- identifying specific posters Id. there was sufficient evidence for “a ration- physician’s murder.” lowed Id. juror” al to find intent. “independently satisfied” 1063. We were “amounted to a true posters III. speech.10 protected and were not threat” Id. question, it Although ques- is closer are, contemporaneous generally tions of intent telling were the

Most record, Bagdasa- independently reviewing Mr. after I recipients of the reactions the district court did not threats.11 At least four indi- believe err rian’s that Mr. they perceived finding subjectively viduals indicated constitutionally Clinic Entrances be criminalized. 9. The Freedom of Access to ("FACE”) person analysis pertinent makes it a crime when Act test is Romo's intentionally "by here, Romo, force ... force or threat of good it law. remains See any with ... injures, or interferes intimidates 1051-52. person is or has been ... because that obtaining providing reproductive health majority correct that 11.The none 248(a)(1). 18 U.S.C. services.” message participants other board used the Bagdasarian's word "threat” in reaction to and Romo do not deal with 10. That Hanna postings, they perceived but that a threat to subjective requirement does Black's intent made candidate Obama is obvious their objec- persuasiveness of the not discount the postings "reported” that the threats had been analysis in cases. Black clar- tive intent those and their references to "Federal Law En- subjective governs whether ified that the test threat”; and the "Secret Service.” The it did forcement” a statement constitutes a "true applied objective erroneously majority not how we have relies on its own disturb then Romo, Thus, holdings of Hanna and test. speculation conjure up possible other rea- objective analyzing stan- the threats under the readers’ reactions. Even if the sons for concluding dard and it was satisfied where support suggest- comments did the inferences suggested speakers or at least that "stated however, majority, ed the trial court killed,” con- the President should be remain finding made a that the readers’ comments authority trolling as to the standard. Bagdasarian's postings were confirmed that Hanna, We reversed the 293 F.3d at 1088. threats, objectively perceived as only conviction in Hanna because of certain "must defer to that resolution.” See United may improperly admitted evidence which Nevils, 1158, States v. jury's deliberations. There- have tainted the Cir.2010) (en banc) (“[Wjhen with a 'faced fore, this reversal does not detract from Han- supports record of historical facts that con- holding suggested to the na ’s reviewing flicting court inferences’ 'must Nor President met the standard. affirmatively ap- presume if it does not —even declined to does the fact that Romo address pear the trier of fact re- record—that speech constituted a "true whether Romo’s prose- any solved such conflicts favor any discussion. threat” bear relevance to this ” cution, to that and must defer resolution.’ reiterates, majority itself when First As Jackson, 326, (quoting at 443 U.S. raised, subjective Amendment issues are 2781)). applied must be to determine intent standard speech is a "true threat” that whether the participants threaten candidate ments. When other confront- intended to intent, him prove gravity starting Obama. To ed with the speaker that “the government must show nig” by indicat- thread labeled “shoot the expres a serious means to communicate they him that law ing reporting were an unlawful act sion of an intent to commit him, monitoring enforcement was he evi- Black, 538 U.S. at of violence.” posts denced his own belief that his were need not government S.Ct. 1536. The First, threatening. he wanted to know “himself will prove Bagdasarian that Mr. agency” “which was [law enforcement] Obama, kill” candidate but need demon monitoring board. Then he only strate the intent to threaten. “The began threatening to make excuses for his actually carry intend to speaker need comments, posting: up, crybaby “Listen Rather, on prohibition out the threat. boy, ole white I drunk.” was ‘protects true threats individuals from the Bagdasarian Mr. had alco- imbibed some violence,’ protect ... fear of addition to night, prevent hol that but it did not him ing people possibility ‘from the tracking from occurring ” the conversations threatened violence will occur.’ Id. multiple posting responses threads and City (quoting 123 S.Ct. 1536 R.A.V. v. Moreover, period. over a seven-hour his Paul, St. postings night specific, were relevant (1992)). 2538, 120 L.Ed.2d 305 to the context of each thread and even board, In a night posting on the AIG wordplay. included If anything, his intake Bagdasarian explosive Mr. made numerous “vino,” it, as he described have comments aimed at candidate Obama. Al- sufficiently lowered his inhibitions that he though only posts charged two of his were posting genuinely was fact held threats, they, together with his other Obama, views about including a true ex- posts, indicate that he intended threat- pression of his intent to threaten the can- en. on the message Others board didate with harm. As the district court politi- comments could be described as found, Bagdasarian that Mr. drinking was rhetoric, Bagdasarian cal but it was Mr. any does not make his statements less posts tinged alone who introduced the with threatening than were the time he violence and racism toward Obama and it them, posting made and his 8:00 a.m. Mr. was alone who took the he was drunk when he started the “shoot step introducing affirmative the ominous nig” thread at 1:35 a.m. that morning nig,” against thread headed “shoot the only up indicates that he woke to realize participants which the other board reacted the serious nature of his threats. strongly. very so And at the time that Bagdasarian posted niggar, Mr. “fk the he Bagdasarian’s And Mr. continuing soon,” will have a 50 cal in the head he threats of harm to President-elect Obama possessed Remington his home a model later, two weeks when he was presumably muzzle-loading 700 ML .50 caliber rifle and sober, further evidence his intent .50 caliber ammunition with which to load threaten. He sent two emails on Election Sutcliffe, it. See United States v. 505 F.3d Day begins.” headed: “And so it The (9th Cir.2007) 944, 959 (concluding that first, provided which a link to the “www. possession weapon of a evidence of is sub- depicting barrettrifles.com” website a Bar- jective intent to threaten where the threat rifle, rett model 82al stated: “Josh needs harm). involves the infliction of these, get just us one of shoot the found, nigga’s pro- As the district court car and POOF!” The second Bagda- Mr. posts showing sarian’s were not casual one-off com- vided a link to a YouTube video assault the Presi- or incitement to That email stated: dent up. being car blown you when plink plink Now plink “Pistol ... evil is It our view that the other dent. is you get this.” nigga on a car a 50 cal use upon effect Presidential the detrimental activity movement result that Mr. evidence demonstrates The knowingly man who an adult Bagdasarian, upon a threat the President’s simply from rifle, intentionally a .50 caliber possessed life.”). only engen- could the fear Not “fk the thread: on the “OBAMA” limit a candidate’s dered true threats in the head a 50 cal he will have niggar, fully in the debate participate freedom to that soon,” understanding he had access depriving to the election—thus leading up implement could very weapon and public of its valuable campaign process initi- twenty minutes later he Only threat. Valeo, function, Buckley see U.S. thread, the “shoot the ated (1976) 66-67, 612, 46 L.Ed.2d 659 96 S.Ct. “country for another wrote fkd which he curiam) failure to take such (per the—but , done ANY- nig what has years+ four seriously ultimately deprive could ? ? ? never right? long ? ? ? term? THING country public poten- of a servant and our Bag- That Mr. history, except sambos.” present- Because the evidence does tial leader. public apology made a dasarian later time; from his intent at not detract as to intent is more ed at trial Oba- threaten harm to candidate intent to one rational than sufficient to allow least the candidate’s safe- fear for generated ma Bagdasarian’s that Mr. trier of fact find Service, which ty and mobilized Secret were threats in violation of statements Bag- Mr. Bagdasarian down. tracked Mr. 879(a)(3), independent and because an forward; the not come Secret dasarian did review convinces me constitutional locate him. He hid behind Service had to met, I requirement of intent anonymity cloak of his “californiaradial” would affirm Mr. conviction. infer, that he would hope, one can with Therefore, independent- out. not be found record, I entire conclude

ly reviewing the Mr. made the

that at the time threats, specific he acted with

charged threaten candidate Obama.

intent to

IY. “protects prohibition on true threats of violence and from the fear

individuals engenders.” disruption that fear

from the

(citation marks quotation and internal

omitted). Undoubtedly, pro- the need for importance exceptional tection takes on FISHER; Fisher; Roy Josie Maria candidacy. the context of a Contreras, Mendoza, Edward A. Watts, 394 U.S. at See Plaintiffs-Appellants, against president); (discussing threats States, v. Roy United Cir.1969) (“Thus, it appears UNIFIED SCHOOL TUCSON

statute[prohibiting DISTRICT, Defendant- prevent designed part President] was Appellee, upon the Presi- other than assaults evil

Case Details

Case Name: United States v. Bagdasarian

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 19, 2011

Citation: 652 F.3d 1113

Docket Number: 09-50529

Court Abbreviation: 9th Cir.