Well, that’s not exactly what Judge Stephen Reinhardt said, in an opinion joined by Chief Judge Kozinski. What he said, instead, is that language most of us would construe as a threat . . . isn’t a threat.
I’m not a fan of the dissent by Judge Kim Wardlaw, but she at least does a better job of fully setting forth the facts:
In the wee hours of the morning of October 22, 2008, Mr. Bagdasarian, under the user name “californiaradial,” joined a Yahoo! Finance — American International Group message board, an internet site on which members of the public could post messages concerning financial matters, AIG, and other hot topics of the day. Californiaradial’s first posting about candidate Obama, at 1:00 a.m., was to the “thread” headed “re: Hamas, Hezbollah, Syria, and Iran favor Obama 100 to 0,” where he said “blow up all the mother fkers, please carpet bomb the middle east . . . give me the switch, no prob, thump and poof sand niggar.”
Two minutes later on the same thread he posted: “I would really lose no sleep if middle morons gone . . . nuke bombing . . . .” At 1:15 a.m., under another thread with the subject header “OBAMA,” he posted the first of the two threats charged in the indictment: “fk the niggar, he will have a 50 cal in the head soon.” Six minutes after that, Californiaradial combined his pro-bomb and anti-Obama rhetoric in another post on the “OBAMA” thread: “yea, the honest people have NO guns and the scum bags, niggars and drug fks do, thanx obombhaaaaa.” He reiterated his racist animus on a thread referencing Obama’s Irish heritage: “full monkey, hey can you crank the music box, I wanna see the puppet monkey dance . . . .” Four minutes later, at 1:26 a.m. he added, “a lepraaaaaaniggggggggamuch? blank that one, yahoo a-holes.” At 1:35 a.m., Californiaradial created his own antiObama thread, under the subject header “shoot the nig.”
There he posted the second threat charged in the indictment: “country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos.” At this point, the other message board participants reacted to the serious nature of Californiaradial’s threats. “Dan757x” immediately responded on the “shoot the nig” thread: “You’ve been reported by me, a good ole’ white boy.” “Freddie226” weighed in to support Dan, who next posted: “I hope everyone reports this type of garbage.” Under the same thread, “Sniper1agent” posted: “Be advised Federal Law Enforcement is monitoring . . . ,” and “Brown.romaine” advised: “I am reporting this post to the Secret Service.” And, in fact, John Base, a retired Air Force officer who saw Californiaradial’s “shoot the nig” message did report the threats to the Los Angeles Field Office of the United States Secret Service because, as set forth in the Stipulated Facts, he was “concerned that the posting threatened harm to Barack Obama.”
In response, a Secret Service agent searched the message board, located the “shoot the nig” posting, and also discovered the “50 cal in the head” posting. From Yahoo!, the Secret Service obtained the IP address for the user registered as “californiaradial,” and it used that information to get subscriber data from Cox Communications. This trail of bread crumbs led the Secret Service to La Mesa, California, and, on November 21, 2008, agents appeared at Californiaradial’s doorstep.
They discovered that, in the real world, the user known as “californiaradial” in cyberspace was Mr. Bagdasarian. Mr. Bagdasarian admitted to posting the “fk the nig” and “50 cal in the head” message from his home computer. When asked, he stated that he had weapons in his home. A search warrant executed a few days later revealed that Mr. Bagdasarian possessed six firearms, including a Remington model 700 ML .50 caliber muzzle-loading rifle. Agents also discovered .50 caliber ammunition in Mr. Bagdasarian’s home. The agents searched Mr. Bagdasarian’s computer, where they discovered a November 4, 2008, email message from Mr. Bagdasarian to an associate with the foreboding subject line “Re: And so it begins.” The email stated, “Pistol??? Dude, Josh needs to get us one of these, just shoot the nigga’s car and POOF!” The email then provided a link to a photograph of a rifle on a Barrett Rifles website. A second email that Mr. Bagdasarian sent the same day under the same subject line stated, “Pistol . . . plink plink plink Now when you use a 50 cal on a nigga car you get this.” The email then directed the reader to a YouTube video of a car being blown up.
Now who hasn’t done that? In the exercise of their constitutional rights to free speech?
So what is Reinhardt’s theory? The essence of his argument: the above language is not threatening:
Neither statement constitutes a threat in the ordinary meaning of the word: “an expression of an intention to inflict . . . injury . . . on another.” Webster’s Third New International Dictionary 2382 (1976). 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. The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the President.
So, apparently, if I say “Hey everyone! Shoot Stephen Reinhardt! I predict he is going to get a .22 slug in his head soon” — and I am found to have a .22, and have several private e-mails where I joke about the effect that .22 caliber weapons have on the heads of liberal Ninth Circuit judges — then hey! it’s no harm no foul.
You have got to be kidding me. This is such an ivory tower decision, it’s stunning. Apparently, Reinhardt would look at the protection racket occurring at 1:45 of this Monty Python sketch, and see two guys genuinely concerned about the well being of the British Army:
Fires happen. Things burn. N-word presidents get shot by the caliber of weapon I happen to own. Nothing threatening here. No, sir. Not at all.