A three-judge panel of the 9th Circuit ruled yesterday that a man from La Mesa, California who called for others to shoot Barack Obama when he was a presidential candidate in 2008 and said that Obama "will have a 50 cal in the head soon" was exercising his 1st Amendment right to freedom of speech, reports The Los Angeles Times.
Click here for the decision, written by Judge Stephen Reinhardt. The panel split, with Chief Judge Alex Kozinski joining the majority opinion and Judge Kim McLane Wardlaw concurring in part and dissenting in part.
The man, Walter Bagdasarian, who said he was drunk at the time he posted the comments to a Yahoo.com financial website on Oct. 22, 2008, had been convicted under a statute making it a crime "to knowingly and willfully threaten to kill, kidnap, or inflict bodily harm upon a major candidate for the office of president or vice president." The panel overturned his conviction, finding that the statute does not make "predictions or exhortations to others to injure or kill the president" illegal.
In her dissent, Judge Wardlaw agreed with the majority's 1st Amendment standard but wrote that the man's statements met this standard of speech that may be prohibited. She argued:
The majority focuses narrowly on the charged threats and dismisses them as mere imperatives or predictions. But our case law is to the contrary. We do not require that the speaker in a threats case explicitly threaten that he himself is going to injure or kill the intended victim; rather, we examine the surrounding circumstances to determine whether a reasonable person in the speaker's shoes would foresee that his statements would be perceived as threats.