Earlier this week — thanks to Trace Rabern, a lawyer I know from Twitter — I was interviewed by a reporter from the San Diego CityBeat for an article about “talking smack” online. (Tagline: Real. Alternative. News.)
Freedom of speech is something that’s been near and dear to my heart ever since I was a wee lad spouting “you can’t make me!” to my mom when she told me to be quiet. (I was right, too. The slap on my face only made me louder.)
The reporter interviewed me for about 40 minutes, during which I mentioned to him that I found the case interesting and would likely blog about it. Since his article went online today, and I want to clarify something about my comments, now’s the time.
First, a word of warning. This post may contain some foul language — it’s not because I like to use foul language (I prefer not to), but because the case itself involved the use of foul language. I don’t really know how to clearly discuss the case without mentioning the language. Thus, if you feel you’re going to be offended by a few words of foul language, you might want to stop reading now.
Second, a disclaimer. I’m not a constitutional scholar, or even a constitutional lawyer. My practice in Fresno, California, is (so far) completely focused on criminal defense. Constitutional issues frequently come up in criminal law — the Bagdasarian case is one example — but the closest I come being a constitutional scholar is that I pulled down a 90 in Professor Purvis’s summer session “First Amendment” class in law school.
Anyone who knows Professor Purvis will not begrudge my momentarily bragging about that!
Anyway, the reporter (Dave Maass) sent me copies of the briefs filed in the case, which I read prior to his call. I also read the Supreme Court case that had figured so prominently in the arguments and decision in the district court on Bagdasarian’s case. Then Dave and I talked.
The basics of the Bagdasarian case are that he got drunk one night and became embroiled in a political discussion in an Internet chat room. Alcohol and political discussions never seem to mix all that well. Adding in an Internet chat room is like dripping a little LSD into your drink. You’ve got two kinds of “mad” going on here: anger, and mad as in “Mad Hatter.” People get crazy.
People are less inhibited in electronic communication. From the earliest days of computer communication, researchers have discovered that most people are less inhibited in online communication than when sound is used. The immediacy of online communication encourages people to respond without thinking, and nearly every user of online communication has experienced the desire to write regrettable things. (Brian K. Reid, “The Church and the internet” (1999) Society of Archbishop Justus.)
‘Tis true. I myself have had to pull back from writing things that I realize I would never say “IRL.” (IRL = “In Real Life.”)
Bagdasarian’s bad banter involved making derogatory racist remarks about then-candidate for the Presidency of the United States, Barack Obama. According to the appellant’s brief in the case:
The one-count indictment specifically and only alleges as follows:
On or about October 22, 2008, within the Southern District of California, defendant WALTER EDWARD BAGDASARIAN knowingly and willfully threatened to kill and inflict bodily harm upon Barack Obama, a major candidate for the office of President of the United States as defined in Title 18, United States Code, Section 3056 (a) (7), by posting on a public website a comment with the title “shoot the nig,”
which read as follows:
country fkd for another 4 years+, what nig has done ANYTHING right???? Long term???? Never in history, except sambos. Fk the niggar, he will have a 50 cal in the head soon.
This act was in violation of Title 18, United States Code, Section 879 (a) (3).
A later superseding indictment is said to have repeated the above, then alleged a separate count that essentially repeated the same thing minus the comment “Fk the niggar, he will have a 50 cal in the head soon.”
I think most ordinary people — or, at least, me — can agree that Bagdasarian’s comment is rather outrageous. It is clearly racist and demonstrative of a lower life form than I would normally want to refer to as “Homo sapiens.” The question the law asks — the thing that had to be true in order for him to be convicted — is whether the comment constitutes a “true threat.”
Bagdasarian’s argument was that it is not. And as much as I detest the comments, I have to agree. As I told Dave Maass, the comment “shoot the nig” could be considered a grosser form of “fuck him!” As to the comment about the “50 cal in the head,” the language, on its face, is not a threat: it is at best a statement of belief. One might ask why Bagdasarian believes what he believes and the answer might be that he believes it because he’s planning to put the 50 cal in the candidate’s head, but the answer could also be that Bagdasarian believes some unspecified person is going to do it. Bagdasarian could easily have merely been voicing what he hoped would happen. He never said he was going to do it himself. At best, on its face, the comment “shoot the nig” is what grammarians would call an imperative. Bagdasarian is possibly urging someone else to do it; that, itself, is not a “true threat.”
Of course, he could also just be an angry blowhard, blowing off smoke in the midst of a political discussion.
Several people in the chat room, so the government argues, took the comments as a threat. They said that they had, or were going to, report Bagdasarian to the Secret Service. One of them, a retired Air Force officer, did contact the Secret Service.
At a bench trial, the district court judge repeatedly compared Bagdasarian’s case to a Ninth Circuit Court case involving threats made against then-President Bush. According to the judge,
We begin with the basics. The essential elements of the offense of threats against a major candidate for office of president, in violation of Title 18 United States Code 879(a) (3) are, one, the Defendant threatened either in writing or orally to kill or injure a major candidate for the office of president, two, the Defendant intended the statement to be taken as a threat, and, three, under the circumstances in which the threat was made, a reasonable person would foresee that it would be understood by persons hearing or reading it as a serious expression of an intent to kill or injure a major candidate for office of the president, United States v. Gordon, 974 F.3d 1110, Ninth Circuit, 1992.
The Court also notes that in United States v. Romo, 413 F.3d 1044, Ninth Circuit, 2005, the Ninth Circuit noted that it is difficult to imagine a clearer threat than one to put a bullet through the president’s head. That’s Romo 413 F.3d at 1050. [This is taken from the appellant’s opening brief in the Ninth Circuit Court. Italics and bold-facing were in the original brief, as were the grammatical oddities.]
The italicized, bold-faced statement is what the Romo said. But even poor readers will note that the question here is whether or not there was a clear threat by Bagdasarian to put a bullet through anyone’s head. Saying that someone “will” have a bullet in his head soon and saying that the person making the comment is threatening to do that himself are not co-equivalent statements. If I say “so-and-so will die someday,” there is nothing in the statement in and of itself that indicates I am going to kill so-and-so. (To anyone out there named “So-and-so”: I am not threatening you. But given the government’s apparent willingness to take things out of context, I was trying to use language that would, even taken out of context, hopefully not get me into trouble. If your name is “So-and-so,” please accept my apologies and know that you are safe. From me, at least.)
Now I know: we live in a different world “post-9/11.” Constitutional rights, including freedom of speech, mean significantly less — almost nothing, in fact — when compared to what they used to mean. But the truth of the matter is that sometimes even non-stupid people say stupid things that they later regret. Sometimes people even make “threats” that they never intend to carry out.
That’s why the requirement is that the statement be a “true” threat in order to justify a conviction.
I also recognize that the old adage “better 10 guilty men go free than one innocent man should be falsely convicted” has been replaced in most judges’ minds by “I’d rather be on the safe side.” (See Richard A. Gardner, M.D., True and False Accusations of Child Sex Abuse (1992) p. xxxii.)
That’s why I told Dave Maass that I thought the prosecution would win on appeal.
You see, after Bagdasarian’s “threat” was reported to the Secret Service, they went to his home and questioned him. He admitted making the comments. He admitted owning weapons. The agents then obtained a federal search warrant and seized his computers.
On the hard drive of Bagdasarian’s computers, they found a couple of emails to “an associate” which contained further statements like,
Pistol??? Dude, Josh needs to get us one of these, just shoot the nigga’s car and POOF!”
Pistol … plink plink plink Now when you se a 50 cal on a nigga car you get this….
and both emails contained links to pictures and video, with the video apparently [I haven’t viewed it] showing what happens to a car shot with a 50 caliber weapon.
The district court, taking everything into consideration, decided that Bagdasarian had made a “true threat.” Bagdasarian didn’t just make one or two vague comments: he said a couple other things that were stupid, nasty, bigoted and vague as well. In most American courts these days, a vague statement means whatever the court wants it to mean; four vague statements just cannot be good.
Let me be clear about something: I don’t even have to meet him to know that I do not like Bagdasarian. I do not approve of his comments. I think he sounds like the sort of person with whom I’d never want to associate.
But these stupid, ignorant, racist comments do not seem to me to indicate — in and of themselves — that Bagdasarian made a “true threat.” I’ve heard and seen much worse things than these from police officers talking about private citizens when the police officers were pissed off about something the private citizen had said or done. I’ve heard police officers tell people, “I’m going to take your fucking head off!” in a tone of voice that almost makes you think they really would do it.
But I don’t believe for a minute that the police officers I’ve heard saying those things really would.
Nor do I believe Bagdasarian, who appears to me to be one pissed-off racist loser, would have tried to kill Obama. He certainly did not say that he would. And there’s nothing to indicate that he took any kind of overt step towards doing it.
Nor do I believe that the district court judge is fearful that this would happen. At the end of the case, the judge sentenced Bagdasarian to credit for time served and probation. He won’t spend a single day in jail beyond what he already served when he was first arrested. So, in that sense, (surprise!) the judge is a hypocrite. He doesn’t consider Bagdasarian enough of a threat to now-President Obama to sentence him to any custody time, but he does consider his idiotic blowing-off-of-steam to be a “true threat.”
Regardless of the above, I told the San Diego CityBeat that I thought the conviction will survive the appeal; the prosecution will win.
Why? Well, there are at least three reasons.
The first is that judges no longer care about the United States Constitution. Sure, they pay it lip service. But their opinions on it always start out by saying, “The Constitution says,” then quoting the relevant passage and explaining why it never applies doesn’t apply in the case before them.
The second is that the appellate court is likely to give great deference to the ruling of the lower court: that court, as the finder of facts, decided, based on a totality of evidence before it, that Bagdasarian “knowingly and willfully threatened to kill and inflict bodily harm….” The question whether there was sufficient evidence for a rational trier of fact to decide this is what the appeal raises. And I doubt the appellate court is going to say that the lower court judge is irrational, notwithstanding the fact that probably not a few people — me, at least — would have found differently.
And the third reason? Well, Barack Obama is no longer a candidate for President; he’s made history: he is the President.
Nobody badmouths the President.
Great post. It is just as unfortunate that ugly, hateful speech cases (and pr0n cases) shape the contours of First-Amendment protections for all of us as it is that drug and gun possession cases shape our Fourth-Amendment protections. It seems those constitutional principles deserve cases with noble facts, but that’s not what happens.
I was thinking about this case today in the context of the Michigan Christian militia charges, based as they are (as I understand it) on the members’ plans to do various ugly destructive things. Those militia folks are charged with crimes based on their words on the web and in e-mails, too. They too are charged criminally for the threats themselves. Yet few discuss their “free speech” rights.
Now, I won’t pretend that making plans to kill a police officer to lure other police officers to a funeral to also kill them is not far more scary than some bitter drunk popping off full of hate late at night. But all the constitutional tests kind of come down to one thing-which speech portends actual violence? And, unfortunately, our courts and First-Amendment tests are probably sadly inept at this kind of prediction. As you note, in this area, the tendency will be to err on the side of caution.