Online Obama Rant Was Protected, Circuit Rules

(CN) - A California man was within his rights when he posted slurs against then-candidate Barack Obama on the Internet during the 2008 campaign, the 9th Circuit ruled, finding that statements such as "Obama fk the niggar, he will have a 50 cal in the head soon" and "shoot the nig" do not rise to the level of a serious threat.

The Pasadena-based federal appeals panel on Tuesday reversed Walter Bagdasarian's conviction for threatening to kill or harm a presidential candidate.

Bagdasarian was admittedly drunk when he made the statements on an online forum in October 2008, about two weeks before Obama won the presidency. Under the username "californiaradial," he logged onto a Yahoo message board and wrote "Obama fk the niggar, he will have a 50 cal in the head soon," according to the ruling. Other statements included "shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos."

A retired Air Force officer who saw the post reported Bagdasarian to the Secret Service. About a month later, agents showed up at Bagdasarian's La Mesa, Calif., home, where they found several weapons, including a Remington model 700ML .50 caliber muzzle-loading rifle and .50 caliber ammunition.

U.S. District Judge Marilyn Huff found Bagdasarian guilty on two counts of threatening to kill or harm a presidential candidate, but a three-judge panel of the 9th Circuit reversed 2-1.

While calling Bagdasarsian "an especially unpleasant fellow" and his postings "particularly repugnant," the majority found that the statements did not constitute threats as defined by the law, which "does not criminalize predictions or exhortations to others to injure or kill the president."

"The evidence is not sufficient to support a conclusion that a reasonable person who read the postings within or without the relevant context would have understood either to mean that Bagdasarian threatened to injure or kill the presidential candidate," Judge Stephen Reinhardt wrote for the majority. "The 'Obama fk the niggar' statement is a prediction that Obama 'will have a 50 cal in the head soon.' It conveys no explicit or implicit threat on the part of Bagdasarian that he himself will kill or injure Obama. Nor does the second statement impart a threat. '[S]hoot the nig' is instead an imperative intended to encourage others to take violent action, if not simply an expression of rage or frustration."

Writing in partial dissent, Judge Kim McLane Wardlaw argued that Bagdasarian's statements could be interpreted as real threats, given the context of a particularly vitriolic campaign. She also contended that the recent shooting of Rep. Gabrielle Giffords offered evidence that online ramblings can have real-world consequences.

"The sheer number of presidents (nearly 10 percent of the presidents who have served) who have been targeted and killed by assailants with guns in our nation's short history undermines the conclusion that a reasonable person would interpret Mr. Bagdasarian's '50 cal in the head' comment as a joke or mere political rhetoric," she wrote (parenthesis in original). "Moreover, as the recent example of the shooting of Arizona Representative Gabrielle Giffords demonstrates, what begins as a bizarre post on the Internet can erupt as a devastating outburst of violence."

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