Patterico's Pontifications

7/20/2011

Ninth Circuit: Threatening to Assassinate Obama Is No Crime

Filed under: General — Patterico @ 10:32 pm



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.

Sheesh.

108 Responses to “Ninth Circuit: Threatening to Assassinate Obama Is No Crime”

  1. Ivory tower decision.

    This was threatening language. Only overeducated judges lacking common sense could fail to understand this.

    Patterico (f724ca)

  2. Patterico, what do you think was the threatening language? Surely “shoot the nig” is not a threat; it’s calling for someone else to do so. How would you distinguish that from “someone ought to shoot him”, which you must surely admit is fully protected speech?

    So the “threat” must be the prediction that he would get shot, with a 50-cal bullet. You place great significance on the fact that the speaker actually owned guns and bullets of that caliber, but how were his readers supposed to know that? How would you distinguish this statement from a genuine non-threatening prediction? Suppose a newspaper columnist, on the morning after the election, celebrated Obama’s election but direly predicted that a racist America would not stand for it, and that sooner or later some redneck was bound to take a shot at him. You must admit that that would not be a threat; so how do you distinguish it from what Bagdasarian wrote?

    PS: I haven’t read the opinions yet; this is just what I gather from reading the quotes here and at Volokh.

    Milhouse (ea66e3)

  3. Beldar was certainly right about how inappropriate the extemporaneous Obama context commentary was.

    You’re currently being threatened, Patterico, so I realize this kinda hits home.

    Anyway, here’s my comment from the other thread:

    Beldar, thanks for the Volokh link.

    I’m a bit in awe of our country. The BCRA can regulate political speech, at least to some extent. I know that’s diminished, but there stands a chance I could get in legal trouble for political speech if I really flout some aspects of it.

    But that 50 cal and other comments were not to

    “know-ingly and willfully threaten[ ] to kill, kidnap, or inflict bodily harm upon . . . a major candidate for the office of President or Vice President,”

    because they were political expression?

    we must find sufficient evidence that the speech at issue constitutes a “true threat,” as defined in Black.

    Why, damn it? The first amendment that doesn’t cover political speech covers political threats?

    How bizarre.

    Comment by Dustin —

    Milhouse replied with

    Under Watts it’s also explicitly OK to say “if X were to happen, I would kill the President”. That’s not a threat, because X hasn’t happened and might never happen. This is especially so if the context indicates that I might not be serious.

    Jeeeeeeeeez. If this is accurate (I have no reason to think Milhouse is wrong) then that is a huge mistake.

    “If you aren’t going to give me your wallet I’m going to shoot you.”

    … that’s a threat.

    “If JFK doesn’t sign HR 45 I’m going to shoot him!”

    … that’s a threat.

    And anyway, he was saying he was going to shoot this guy. He was drunk, but just being drunk doesn’t remove your responsibility. You choose to get drunk. In his drunken state, he tried to convince people he was going to hurt Obama. It’s really clear by how ugly he gets that he’s not just goofing.

    I am pretty dang sure he meant it. I can’t prove it, and frankly, I think this standard is stupid anyway.

    Dustin (b7410e)

  4. Dustin, the specific words that the Supreme Court said Watts was perfectly within his rights to say were: “If they ever make me carry a rifle the first man I want to get in my sights is LBJ”.

    Also, in Rankin v McPherson, the Supreme Court held that McPherson could not be fired for remarking, after the attempt on President Reagan’s life, that “If they go for him again, I hope they get him.”

    Milhouse (ea66e3)

  5. And anyway, he was saying he was going to shoot this guy.

    No, he didn’t. That’s the whole point; he said the guy was going to be shot, and he called for someone to shoot him, but he never said he was going to do the shooting.

    Milhouse (ea66e3)

  6. So the “threat” must be the prediction that he would get shot, with a 50-cal bullet. You place great significance on the fact that the speaker actually owned guns and bullets of that caliber, but how were his readers supposed to know that?

    He started a thread asking people to shoot Obama. Prior to that he was specific in his planning, noting the specific way he was going to kill him, with even the caliber and the location of the wound he wanted to cause, and that it would happen imminently.

    You ask how the other commenters were supposed to know he was serious, but they took it very seriously. That’s how the authorities came to know of this.

    The 50 cal point shows he considered the weapons he owned and could use to kill a president and selected one of them. That he owns the gun obviously makes the threat seem more legitimate.

    Dustin (b7410e)

  7. “fk the niggar, he will have a 50 cal in the head soon.”

    I read this to mean he was saying he was going to shoot him with his 50 cal.

    There is no other legitimate reading.

    Dustin (b7410e)

  8. Just for the record, a .50 caliber muzzleloading rifle is not the same thing as as Barrett .50 caliber rifle. If you were planning on shooting someone a muzzleloading rifle would be quite a handicap.

    DCR (08eb46)

  9. Isn’t it possible to read this as a blowhard venting ? *Especially* one who is using wording classically known to be considered inflammatory ?

    Disturbing enough to be investigated by the Secret Service ? Most likely …

    I would be astonished if similar things aren’t happening for our First Occupant all over the place – idiots abound … I would bet actual cash money that they also happened during Bush II, during Clinton, during Bush I, during Reagan … (OK, it would have to have been on BBSs back then, but you get the idea) …

    Alasdair (205079)

  10. I have no legal background, at all- but here’s my opinion, for what it is worth…

    Calling on others to cause mayhem/harm is wrong. Could it be likened to “conspiracy to commit..” (again, no legal background- throwing ideas around)

    “will no one rid me of this meddlesome priest?”

    But is it free speech? (insert pixie shrug here)

    ppk_pixie (6f2250)

  11. ___________________________________________

    Well, that’s not exactly what Judge Stephen Reinhardt

    Reinhardt is an 80-year-old ultra-liberal. That alone indicates something is intrinsically defective about the inner-workings of his brain.

    Someone implied that Reinhardt expressed a bit of sheepishness or hesitancy after this ruling came out because it involved a defendant threatening a liberal — or actually as sort of a clone of the judge himself, an ultra-liberal — politician. If so, would Reinhardt have been more forthright, confident and self-satisfied in issuing a similar decision if the defendant were a leftwinger threatening a rightwinger?

    Mark (411533)

  12. _____________________________________________

    “fk the niggar, he will have a 50 cal in the head soon.”

    That comment comes awfully close to the often-cited example — when the issue of free speech is being debated and bandied about — of a person falsely shouting “fire” in a crowded theater.

    Mark (411533)

  13. He started a thread asking people to shoot Obama.

    That’s certainly no crime. Or do you claim it is?

    Prior to that he was specific in his planning,

    What planning?

    noting the specific way he was going to kill him, with even the caliber and the location of the wound he wanted to cause, and that it would happen imminently.

    Bulldust. He did not say who he thought was going to kill Obama, nor when he thought it was going to happen. That is the whole point.

    You ask how the other commenters were supposed to know he was serious

    No, I asked how they were supposed to know that he owned weapons and ammunition of that caliber. If they couldn’t know it, then of what relevance is the fact that he did own them?

    but they took it very seriously. That’s how the authorities came to know of this.

    Of all the commenters, only one took it seriously enough to report him.

    The 50 cal point shows he considered the weapons he owned and could use to kill a president and selected one of them.

    It shows nothing more than that when thinking of a caliber to use as an example, he naturally thinks first of the one he himself uses.

    That he owns the gun obviously makes the threat seem more legitimate.

    Only if his audience knew that; but how could they?

    Remember that the prosecution must prove beyond reasonable doubt both that he intended his audience to understand that he was going to try to kill the Senator, and that a reasonable person in that audience would so have understood. Information that was not available to the audience can’t have influenced them.

    “fk the niggar, he will have a 50 cal in the head soon.”

    I read this to mean he was saying he was going to shoot him with his 50 cal. There is no other legitimate reading.

    Really? How exactly do you rule out the plain and literal reading? As I asked Patterico, how do you distinguish it from a genuine prediction that somebody would try to take a shot at him?

    Calling on others to cause mayhem/harm is wrong.

    Maybe, but the right to do so is absolutely protected by the first amendment. There is no possible question about that.

    Could it be likened to “conspiracy to commit..”

    No, it cannot.

    “will no one rid me of this meddlesome priest?”

    Probably protected.

    Milhouse (ea66e3)

  14. “fk the niggar, he will have a 50 cal in the head soon.”

    That comment comes awfully close to the often-cited example — when the issue of free speech is being debated and bandied about — of a person falsely shouting “fire” in a crowded theater.

    How so? What similarity do you see? How does the comment in itself endanger anybody’s safety?

    In any event, that often-cited example is from an opinion by one of the most horrible “Progressive” judges in the history of the Court, and one that has since been comprehensively overturned by successive Supreme Courts and thrown into the dustbin of legal history. It forms no part of today’s law.

    Milhouse (ea66e3)

  15. Milhouse,

    I appreciate you explaining it point by point.

    What is legal, and what is moral…two different critters.

    ppk_pixie (6f2250)

  16. “Threatening to Assassinate Obama Is No Crime…”

    True.

    “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…”

    Federal laws that make it a crime to make threats against pols are flatly unconstitutional.

    Don’t like that?

    Amend the Constitution.

    Dave Surls (28f866)

  17. 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.

    This is the best part. Mr. Anonymous Internet Tough Guy wasn’t quite as anonymous as he thought.

    Teh Dave (60a68a)

  18. How long until he is branded a right-winger by Chuckie and his insane clown posse?

    DohBiden (d54602)

  19. The guy’s a stupid, loud-mouth, racist, blowhard, and likely a drunken fool as well. Parse his words if you will, but you won’t find anything resembling an intelligent thought or a rational plan. The man’s full of hot air and puffed up bravado. He isn’t capable of organizing his own thoughts, much less even begin to plan a political assassination. Hell, the jackass probably even thinks Sirhan Sirhan shot RFK all by himself.

    Bottom line, he’s more of a threat to himself and immediate family members that to President Obama. We’re lookin’ at a fool who ought to suffer a fine, loss of Internet access, and a few weekends in the slammer.

    ropelight (ec985f)

  20. You’re currently being threatened, Patterico, so I realize this kinda hits home.

    I’m sure Stephen Reinhardt would say I have simply been contacted by someone genuinely concerned for the safety of myself and my family.

    Just like the comical thugs in the video above are simply on the side of the British Army guy.

    For laffs, maybe we can get Milhouse to defend the guys in the video too. “When they say ‘things burn’ they are merely stating a literal truth, Patterico. Do you deny that things do in fact burn? Are you trying to tell us that no things ever burn? Is that what you’re trying to tell us, counselor?”

    Patterico (f724ca)

  21. Does this go, enbanc, Patterico, because I can’t imagine this decision would be allowed to stand.

    ian cormac (d380ce)

  22. Ludicrous opinion. However…..the irony is not lost on me that the object of this threat is a past master at insisting that words and laws mean only what they expediently need to mean at any given time.

    Ed from SFV (7d7851)

  23. Truth is that threatening to shoot Obama isn’t all that uncommon in certain precincts where opinion is divided on whether it should be considered a patriotic responsibility or just good manners.

    ropelight (ec985f)

  24. ian,

    I suspect an en banc is quite possible — and failing that, a Supreme Court appeal. I’d rate the opinion as slightly more likely than not to be overturned, and the conviction reinstated.

    Patterico (f724ca)

  25. It’s interesting that Reinhardt doesn’t include a ‘Killing of a President’ or the lesser known,
    ‘the November Men’ or Nicholson Baker’s ‘Checkpoint’ to show the very toxic atmosphere
    that was allowed to stand, in the W era,

    ian cormac (d380ce)

  26. i say we err on the side of not filling up our prisons with political prisoners

    America is already more than enough of a low-rent oppressive dirty socialist backwater.

    happyfeet (3c92a1)

  27. once Americans get a taste for taking away people’s freedoms for language they can construe to intend this or that blither blather

    it will never never end

    happyfeet (3c92a1)

  28. I think that case fall somewhere between Chaplinsky
    ‘fighting word’s doctrine, and ‘Near v. Minnesota,

    ian cormac (d380ce)

  29. Calling for the assassination of a president gets you an automatic life sentence without parol.

    DohBiden (d54602)

  30. _______________________________________________

    How so? What similarity do you see? How does the comment in itself endanger anybody’s safety?

    Since the comment was written and not just merely spoken, I’m guessing it went beyond a matter of pure speech. But I’m hardly an expert on the intricacies of such things. I’m also aware of the concept of freedom of the press, but I suspect that wouldn’t apply to generally anonymous, random postings on an Internet forum used by the public.

    However, in this age of political correctness run amok, I do sympathize with anyone’s cynicism or indignation towards, or suspicions about, people (mainly judges) who are deciding the ins and outs of words spoken in public.

    As for someone yelling “fire” in a crowded theater, not because there is a fire but in order to create panic and mayhem. If the concept of free speech can be made to somehow protect that, then we not only live in the age of political correctness gone berserk, we also live in the age of total insanity.

    Mark (411533)

  31. i think if anyone yelled fire in a crowded theater everyone would be like where is the fire I don’t see any fire do you see a fire hey I think this guy is just pulling our leg this popcorn is tasty

    this is because there’s no such thing as movie theater fires anymore in America – it just never happens these days and it’s never in the news so people aren’t conditioned anymore to respond to that stimuli with unreasoning terror

    happyfeet (3c92a1)

  32. “this is because there’s no such thing as movie theater fires anymore in America”

    Mr. Feets – But they happen in other similar venues where people may be trampled running for the exits, vis nightclub fire in Chicago a few years back with exits locked, horrific fire in Rhode Island with rock tribute bank playing a decade ago or so.

    daleyrocks (bf33e9)

  33. once Americans get a taste for taking away people’s freedoms for language they can construe to intend this or that blither blather

    it will never never end

    Comment by happyfeet — 7/21/2011 @ 7:11 am

    This isn’t about the political differences he has with Obama or any sense of communicating any idea.

    This is not even about his speech.

    This is about how he said something that is intended to scare people that he’s going to hurt someone, forcing our government to spend resources dealing with the threat.

    It’s in the form of speech, but’s not the speech, but rather the attack in it.

    Dustin (b7410e)

  34. “Only if his audience knew that; but how could they?”

    Milhouse – If I’m the Secret Service, I don’t care about the armchair opinions of a bunch of bozos on the internet. I’m going to track the ignorant, racist, gun owner down and grill his butt. Otherwise I am shirking my duty. I hope you are not suggesting otherwise.

    daleyrocks (bf33e9)

  35. Seems to me that the Constitution is unbelievable clear regarding Congress and Free Speech. “Congress shall make NO law abridging the freedom of speech, or of the press.” Not exactly sure how that can be interpreted to mean anything other than what it explicitly says. ANY law lessening one’s free speech passed by the US Congress is unconstitutional. Anyone who disagrees has some serious problems reading plain language and should probably go back to the second grade.

    Sean (94428b)

  36. KILL BUSH … BOMB HIS F___KIN (sic) HOUSE

    I’M HERE TO KILL BUSH (SHOOT ME)

    DEATH TO EXTREMIST CHRISTIAN TERRORIST PIG-BUSH

    Let’s not forget the great artistic classic, “Death of a President” depicting the assassination of GWB.

    Please take the time to view the images of GWB’s effigy hung by a noose, his head off in a basket by a guillotine, the protestors’ signs w/ the quotes above, “Kill Bush” t-shirts, etc.
    http://www.binscorner.com/pages/d/death-threats-against-bush-at-protests-i.html

    Are those not all examples of “free speech”, yet include outright threats to the then-President, Patterico; esp. the first phrases quoted above?

    I know – in this case, there were actually guns found in Bagdasarian’s house. But what if a noose was found in the homes of the protestors threatening to hang Bush? or, the guillotine, with a real blade?

    What would you say then, Patterico?

    Miranda (4104db)

  37. Are those not all examples of “free speech”, yet include outright threats to the then-President, Patterico; esp. the first phrases quoted above?

    I can’t speak for him, but I think those are very serious comments you quoted.

    Are you actually suggesting Patterico thinks Bagdasarian’s comments are threats because he is more defensive of Obama than Bush? What basis do you have to say that?

    Anyway, I would say the first comment is inciting violence and the second is a threat.

    I don’t think the intention of this post was to suggest Obama gets worse treatment from the fringe right than Bush gets from the fringe left. I really don’t understand where you’re coming from with that response.

    Dustin (b7410e)

  38. ANY law lessening one’s free speech passed by the US Congress is unconstitutional. Anyone who disagrees has some serious problems reading plain language and should probably go back to the second grade.

    Sorry, Sean. You’re wrong. It’s totally constitutional to limit some speech. It’s not the speech that’s being limited. It’s not the expression. It’s the threats or the lying or the conning.

    My your view, only a moron would outlaw armed robbery where someone says they will shoot you if you don’t give them your wallet. Or a con artist who tricks old ladies merely by weaving lies. Or a psycho who libels your restaurant with billboards claiming you have rats and poison your food. Or when a pervert sends pictures of naked children to other perverts… or children. Or when you intentionally assault someone with a threat to shoot them in the head.

    It’s one of those obvious aspects of the constitution. The government has no right to regulate the exchange of ideas, or viewpoint discriminate, but it has the power to regulate things that are wrong, but just happen to be in the form of speech.

    It’s wrong to convince people you are going to shoot them. It’s good to outlaw that.

    Dustin (b7410e)

  39. Dustin-

    The States can outlaw those all that they want. The US Congress cannot. There are NO exceptions specified in the First Amendment. The Constitution exists to severely limit what the Federal government can do. All of the items you list are not part of the powers given to the Federal gov. They are powers reserved for the States and the people.

    Sean (94428b)

  40. You really should take the time to read before you comment, Dustin. That includes going to the site I linked in my comment. If you can’t see the logic in my questions, I’m not going to take the time to attempt to explain it to you. You completely (and I suspect deliberately) misconstrued my comments. My questions were for Patterico, not you (obviously, I directed my questions to him in my comment). I did that because I knew you’d misrepresent my comment.

    Now, how does the Bagdasarian (hereafter “B”) scenario differ from the Leftist protestors’ speech I quoted? IOW, many of their comments called for outright violence against a sitting President. What seemed to be the icing on the cake for Patterico, was that B did in fact have guns in his home. So …. does Patterico think the “Kill Bush” protestors’ speech is protected? or not? Why or why not?

    Would it make a difference if 1) the instruments referred to in the speech were in fact in the homes of the protestors (noose, guillotine); 2) there was a pattern of threatening speech (as in B’s case)?

    Miranda (4104db)

  41. _____________________________________________

    What would you say then, Patterico?

    Not sure if you’re mistakenly assuming that Patterico is in favor of the recent ruling but perhaps would have been opposed to a similar response several years ago.

    As for a cross section of liberals out there, I’m sure a percentage of them are more bothered by the peculiar leftism of the 9th Circuit in this case, but would have been rather complacent if a similar ruling had been handed down when Bush was in office. I say that based on the observation that some of the most notorious assassins or would-be assassins over the past several decades have come from the left or at least been aligned with the left. I’m referring to Lee Harvey Oswald, Sirhan Sirhan, the woman who tried to kill Gerald Ford, and, most recently, the kook who tried to kill the Congresswoman from Arizona. Not to mention fringe cases like the eco-terrorist Unibomber.

    Mark (411533)

  42. _____________________________________________

    That includes going to the site I linked in my comment.

    That begs the question of whether the Secret Service was a bit less alert when inflammatory and threatening rhetoric was being aimed at George W Bush compared with the way they responded not long ago to an anonymous posting on an obscure website.

    Given the perverse nature of political correctness in no less than the US military, in which the Fort Hood murderer, Army doctor Nadal Hassan — in spite of his virulent, fanatic anti-US, pro-Islamic rhetoric — was given a pass for several years, it may not be too much of a stretch to theorize that government employees in general (including at the Secret Service) in today’s culture are influenced by the perverse nature of political correctness gone berserk.

    Mark (411533)

  43. Comment by Dave Surls — 7/21/2011 @ 1:06 am

    “Unexpectedly” inconvenient!

    AD-RtR/OS! (4bd1e1)

  44. Army doctor Nadal Hassan — in spite of his virulent, fanatic anti-US, pro-Islamic rhetoric — was given a pass for several years,

    That still amazes me, Mark.

    The idea someone like that couldn’t be dealt with because of freedom of speech is asinine, too. The constitution is not a suicide pact. I don’t have to tolerate a POS who threatens to kill the president or a candidate, and I won’t.

    Dustin (b7410e)

  45. So does Chucky and his insane clown posse shriek like a harpy?

    DohBiden (d54602)

  46. Mr. Bagdasarian (Ah, an Armenian, was he suffering from Turkish Derangement Syndrome?) is obviously one of Ross Perot’s “crazy old uncle’s” who someone inadvertently provided internet service.

    I will say this for Judge Reinhardt, his idiocy is consistent; though I (like Patrick), have some serious thoughts about Judge Kozinski (Libertarians can be a little kooky, but this…).

    Some times we say things in the heat-of-the-moment (Guilty!) that are a little over-the-top, and are not meant to be taken seriously, or literally. But, the listener or reader, does not know our intent or background (generally), and only has our words to guide their interpretation of what that intent is.
    As many Semantisists have noted: Words have meaning!
    Because of that, we should only speak what we mean, and mean what we speak.
    As to Mr. Bagdasarian, someone should have stepped in, pulled him aside, and asked him:
    Just what the …. do you think you’re doing?

    AD-RtR/OS! (4bd1e1)

  47. What does Kim Wardlaw mean by “Obama’s Irish heritage”?

    Charlie Davis (cbdc2b)

  48. Comment by DohBiden — 7/21/2011 @ 10:52 am

    Do they ever need an excuse?

    AD-RtR/OS! (4bd1e1)

  49. The latest Dan Silva novel, takes that premise, one step further, it posits an Awlaki like character,
    who used CIa funds, ostensibly for outreach, and
    the contacts therein, to form his own jihadist
    network,

    ian cormac (d380ce)

  50. And, another thing…
    going sniping with a .50cal muzzle-loader?
    Not in the last 150-years!

    AD-RtR/OS! (4bd1e1)

  51. “What does Kim Wardlaw mean by “Obama’s Irish heritage”?”

    Charlie Davis – Black Irish

    daleyrocks (bf33e9)

  52. No Charles Manson and his cult of shrieking harpies don’t need an excuse.

    DohBiden (d54602)

  53. DoBi, how dare you poke fun at the Patron Saint and High Priest of Environmentalism. Heck, Charlie invented it, or at the very least was its most devoted early adherent.

    Don’t forget, if Charlie hadn’t set fire to that road building equipment parked near Death Valley, Sexy Sadie would never have spilled the beans to her gal pals in the women’s lockup.

    ropelight (ec985f)

  54. Reinhardt continues his reign of clownhood.

    SPQR (26be8b)

  55. I was referring to Charles Johnson as Charles Mansion

    Assassinating Obama is not a crime unless your a right winger.

    DohBiden (d54602)

  56. Calling for the assassination of a president gets you an automatic life sentence without parol.

    What??!! Now you want to criminalise mere advocacy?! How can you justify that? On what possible basis could such a law possibly be constitutional, or morally acceptable?

    Milhouse (ea66e3)

  57. Re my previous comments – it’s not as if I think Patterico is an Obama fan, and is disproportionately reacting to this verdict because he takes particular offense at threats against Obama.

    Just that there seems to be no standard evenly applied, to threats made against the CinC.

    I remember reading Ron Kessler’s book, “Inside the White House”, which in part described the threats against Presidents & the handling of same by the Secret Service, and was surprised at how many were dismissed without extensive investigation. The SS & of course the DOJ under Obama seems very thin-skinned.

    In the case of Bagdasarian, he probably used the 50 cal reference because that of course was what he had in his house. Something else – nowhere have I read an explicit threat to kill Obama. Shoot him, yes – but not kill him. Not only that – but “shoot the n… ” is a directive. It’s not as if the guy said “I’m going to kill Obama”.

    So to me the examples are similar … “Shoot the n …” is like “Kill Bush”. They are not explicit threats to kill somebody. “F**k the n … r … he will have a 50 cal in his head soon” – I just can’t see that as a viable threat, without other indications of planned actions. And just because one is via e-mail/discussion thread and the other is on a sign at a protest, that shouldn’t make a difference in how the threats are treated.

    Now, if my ex-husband made those same comments about me, and he lived a mile away, yes, I’d be alarmed & would want LE to investigate. But to make those same threats against the President – it’s just different. Like libel/slander law is differently applied to a public figure vs. a private citizen. “Malicious intent” & all that.

    Miranda (4104db)

  58. Since the comment was written and not just merely spoken, I’m guessing it went beyond a matter of pure speech.

    Excuse me? That is the most boneheaded idea I’ve heard in a long time. “Speech” means expression, no matter what the medium.

    But I’m hardly an expert on the intricacies of such things. I’m also aware of the concept of freedom of the press, but I suspect that wouldn’t apply to generally anonymous, random postings on an Internet forum used by the public.

    On what basis? How is a blog less “press” than a mimeographed zine produced in someone’s basement? Are you alleging that somewhere in the words “freedom of the press” there’s a hidden clause that excludes anonymity, or randomness, or public access? Would the handbills and tracts that fueled the Revolution, and were the basis for this freedom being mentioned in the first amendment in the first place, not have been covered because they were anonymous?!

    Milhouse (ea66e3)

  59. Because in a republic, all citizens are equal, no one is above, or below the law, or more entitled to….
    Oh, never mind, I forgot that we’re talking about Ear Leader.

    AD-RtR/OS! (4bd1e1)

  60. What??!! Now you want to criminalise mere advocacy?! How can you justify that? On what possible basis could such a law possibly be constitutional, or morally acceptable?

    Comment by Milhouse — 7/21/2011 @ 2:43 pm

    Criminalizing the advocacy of MURDER is morally acceptable. And constitutional. It’s pretty silly to pretend the first amendment protected violence. And yes, when you tell someone you are going to kill someone, or ask someone to kill someone, that is violence.

    I am not sure what system of morality you’re working under that makes it difficult to understand why I would want to criminalize advocating murdering the president.

    Do you think it’s a constitutional right for domestic terrorists to bear AK-47s? Or to have nuclear weapons?

    The constitution is not a suicide pact.

    Dustin (b7410e)

  61. Milhouse – If I’m the Secret Service, I don’t care about the armchair opinions of a bunch of bozos on the internet. I’m going to track the ignorant, racist, gun owner down and grill his butt. Otherwise I am shirking my duty. I hope you are not suggesting otherwise.

    Daleyrocks, if you’re the Secret Service then you have to care about the constitution. You’ve sworn an oath to uphold it, and that comes ahead of your protectee’s safety. If you arrest somebody for saying something which is protected by the constitution then you are betraying your trust. I hope you are not suggesting otherwise.

    Now why don’t you answer my question that you quoted: “Only if his audience knew that; but how could they?” Since his audience didn’t know that he had the weapons, how can his possession of them have affected how they perceived his so-called threat? Or do you still not realise that their perception is crucial to whether it’s a threat?

    Milhouse (ea66e3)

  62. Dave Surls:

    Federal laws that make it a crime to make threats against pols are flatly unconstitutional.
    Don’t like that?
    Amend the Constitution.

    Wait a minute. Actual threats are not part of the freedom of speech that the amendment protects. They never were, so the amendment had no need to explicitly exclude them. In 1789 making a threat was a crime, and it remains a crime today. But it has to be a real, credible threat, something that the speaker intends his audience to understand as a threat, and that a reasonable audience would so understand.

    Milhouse (ea66e3)

  63. Actually, Dustin, many believe that the 2nd-A does give the militia (under the standards and practices of the day at the time of the Founding) the right to possess nuclear weapons, and fighter jets, tanks, gunboats, etc.
    Now, whether or not that is desirable is another question.
    But, as in 1st-A questions on speech, Larry Flynt has the right to publish Hustler, it is another matter altogether as to whether or not that is desirable.

    AD-RtR/OS! (4bd1e1)

  64. Actually, Dustin, many believe that the 2nd-A does give the militia (under the standards and practices of the day at the time of the Founding) the right to possess nuclear weapons, and fighter jets, tanks, gunboats, etc.

    Right.

    That’s my point. There is a way to interpret the constitution in the most absolute sense. For example, any speech at all cannot be abridged, even asking people to murder someone.

    Does Al Qaida’s membership in this country have a constitutional right to bear nuclear weapons? Under that view, sure.

    But that’s absurd. I don’t care if someone thinks this is placing more faith in my country than in a piece of paper, though I actually think mine is the legitimate interpretation of the constitution.

    Dustin (b7410e)

  65. Well, since “reasonable” licensing requirements (of a sort) have been placed upon the possession and use of nuclear materials, I’m sure the govt could find a way to confiscate any nukes that they find out among the general population.
    After all, like CCW’s, it’s not the good guys you have to fear – unless the good guys are all that standing between you and an all-out dictatorship.

    AD-RtR/OS! (4bd1e1)

  66. Dustin, quoting Miranda

    KILL BUSH … BOMB HIS F___KIN (sic) HOUSE

    I’M HERE TO KILL BUSH (SHOOT ME)

    Anyway, I would say the first comment is inciting violence and the second is a threat.

    Incitement?! How can a poster at an anti-war rally in San Francisco, calling for someone to kill Bush possibly be incitement, unless he was present at the rally? And if “bomb his house” is taken as the means that is being urged for the killing, then how could it possibly be incitement, since Bush had no house in that city? Or are you forgetting that one of the key elements of incitement is immediacy?

    And while “I’m here to kill Bush” sounds like a threat, and might have been one in a different context, how can a sign with those words, followed by “(shoot me)”, and held up in public at an anti-war rally, possibly be construed as a true threat? What kind of would-be gunman says “shoot me”?

    Milhouse (ea66e3)

  67. What does Kim Wardlaw mean by “Obama’s Irish heritage”?

    Just what it sounds like. What do you find odd about it?

    Milhouse (ea66e3)

  68. BTW, what penalty did Alex Baldwin pay for his rant threatening the life of Henry Hyde, and the lives of his family, and the destruction of his property – and this on national TV?

    AD-RtR/OS! (4bd1e1)

  69. Not enough of one, AD.

    Milhouse, if I tell you to do something, that’s… telling you to do something.

    You’re right. It sounds like a threat. Because it is one. You’re over-analyzing.

    Dustin (b7410e)

  70. “If you arrest somebody for saying something which is protected by the constitution then you are betraying your trust. I hope you are not suggesting otherwise.”

    Milhouse – If you read what I wrote, I did not suggest that the Secret Service arrest the man. I suggested that they investigate him. But yes, I interpreted his words to be a threat.

    “Now why don’t you answer my question that you quoted: “Only if his audience knew that; but how could they?” Since his audience didn’t know that he had the weapons, how can his possession of them have affected how they perceived his so-called threat? Or do you still not realise that their perception is crucial to whether it’s a threat?”

    If you read what I wrote, my comment only referred to the Secret Service and its duty to investigate. I could give two sh*ts about your question and a bunch of armchair experts on the internet.

    daleyrocks (bf33e9)

  71. Criminalizing the advocacy of MURDER is morally acceptable. And constitutional.

    Then you’ve got a problem with a very long line of first amendment jurisprudence that has gone unchallenged in, well, I don’t know how long. It’s fundamental in the USA that advocacy of any position is protected speech.

    It’s pretty silly to pretend the first amendment protected violence. And yes, when you tell someone you are going to kill someone, or ask someone to kill someone, that is violence.

    No, it’s not. Except in the same colloquial sense in which you have just committed “violence” against the English language. Such “violence” is of course protected speech.

    Milhouse (ea66e3)

  72. Then you’ve got a problem with a very long line of first amendment jurisprudence that has gone unchallenged in, well, I don’t know how long.

    What’s your point?

    Dustin (b7410e)

  73. And thanks for reiterating basically my first point, which was that the caselaw on this is wrong.

    Dustin (b7410e)

  74. Would all those in attendance who are Constitutional Scholars/Lawyers, please raise your hands.

    AD-RtR/OS! (4bd1e1)

  75. Criminalizing the murder of bush is evil though.

    DohBiden (d54602)

  76. Comment by DohBiden — 7/21/2011 @ 4:07 pm

    So, you’re saying that murdering Bush would be beneficial to the country?

    AD-RtR/OS! (4bd1e1)

  77. Would all those in attendance who are Constitutional Scholars/Lawyers, please raise your hands.

    Comment by AD-RtR/OS! — 7/21/2011 @ 3:49 pm

    Are you channeling nk?

    Just kidding. Regardless, my point is that we are not absolute slaves to the most stubborn interpretation. We are rational people who are trying to figure out where the line is drawn rather than whether one exists or not.

    With all due respect to him, Milhouse’s use of caselaw that actually does regulate political speech and obscenity while saying it would be immoral to ban speech advocating murder just isn’t consistent anyway. He’s already recognized free speech is not absolute as a matter of constitutional law. All that’s left is to negotiate where the line is drawn.

    I’d say any and all political expression is absolutely free of regulation. That contradicts the judge made legislation on this topic. I’d also say the law on threats is the real law, instead of the judge made law that defines it down with ‘true threat’ and other dilutions.

    It goes without saying that this is not current legal practice, but even under current law, I think this was a threat.

    Dustin (b7410e)

  78. Dustin, you made me stop and think there for a minute; but, just where is nk lately?

    The problem I have with most Constitutional discussions is the demand for adhering to the tit and jottle of the opinions, instead of the use of Common Sense – which within the legal community seems to be in such short supply that it should be included on the EPA’s Endangered List.
    We seem to enshrine the Reasonable Man standard, except when that Reasonable Man wants to speak up in opposition to the accepted wisdom emanating from the penumbra enveloping the Legal Gods.

    But, you’re right: Reinhardt’s opinion on this matter just doesn’t pass the smell, or giggle, test – but, very few of his opinions do.

    AD-RtR/OS! (4bd1e1)

  79. faith and begorrah
    it just got in Zero’s head
    to paint nation red

    ColonelHaiku (cc5c75)

  80. Wondering why the big double standard is acceptable. How many people, some in the media like Rhandi Rhodes, openly called for assassination and absolutely nothing was done about it?

    How many people died in WWII at the hands of the Nazis? At the hands of Stalin before and after the war itself? Or by Chairman Mao? What might have been the impact on world history of any one of those evil dictators had been taken out relatively early on?

    Who actually pulls Obamao’s strings? Who is in charge of the WH nuthouse?

    Apparently it is quite all right free-speech wise to say anything horrible about conservatives. Look at the vitriol spewed at Clarence Thomas and Condi Rice, for example. Or the pix of Mccain as a bloody vampire.
    I like that Cong. West dissed ugly debbie wassermann schultz. Why should liberals have freedom to say whatever they desire and the media remains firmly stuck up their anuses? Chrissie “I squat to pee” Matthew remains a case in point.

    Calypso Louie Farrakhan (e18d43)

  81. As usual, you make your point a little more clearly than I was able to, AD.

    It’s just common sense. I don’t want to raise my family in a society where it’s considered immoral to criminalize Loughner style psycho ranting. And indeed such threats have been criminalized, but interpreted by judges to the point of absurdity.

    It’s very frustrating.

    Dustin (b7410e)

  82. Thanks for the compliment; but,
    sometimes I just get lucky.

    AD-RtR/OS! (4bd1e1)

  83. Only disagreement I have, Patterico, is the part about the caliber of his gun. If the threatened doesn’t know the threatener has that caliber, I’m not sure it comes into play for that. But it does come into play because, well, it’s a bullet. My smell test – would a reasonable person feel physically threatened by this? Hell yes.

    In this day and age, it seems, one has to carefully word their threat to make it a valid legal threat.

    jeffeneff (707f3d)

  84. I’m just saying that the left thinks murdering bush was ok.

    I should have worded it better.

    DohBiden (d54602)

  85. Bleeding hearts never get it right.

    Icy Texan (5cdcc3)

  86. Charles Johnson is busy with his correlator tool.

    DohBiden (d54602)

  87. trying to figure out if this is racist.

    DohBiden (d54602)

  88. The Black Caucus criticizing Allen West for picking on the White Chick is RACIST!

    AD-RtR/OS! (4bd1e1)

  89. Wow so the black caucus is defending whitey?

    DohBiden (d54602)

  90. I am afraid it’s time to seriously consider Alzheimer’s as the cause.

    Clavius (b00448)

  91. With all due respect to him, Milhouse’s use of caselaw that actually does regulate political speech and obscenity while saying it would be immoral to ban speech advocating murder just isn’t consistent anyway. He’s already recognized free speech is not absolute as a matter of constitutional law. All that’s left is to negotiate where the line is drawn.

    As far as I know, current caselaw does not allow the regulation political speech; the flaw is that it pretends there’s a difference between speaking and paying for someone else to speak, so it allows the regulation of the latter. That’s a problem, but at least the principle is intact; it would be worse if they were openly admitting that it’s political speech and saying it can be regulated anyway. So no line drawing is necessary.

    But now you’re saying that it’s OK to regulate advocacy! How is that not at the core of the first amendment? How does regulating any advocacy not blow a huge hole in the freedom of speech? And where do you draw the line? If advocating one murder is not protected and may be banned, then how can advocating a new Holocaust, or the reinstitution of slavery, or the utter destruction of Carthage, all be protected? After all, all of those are worse than the murder of a presidential candidate. Once you stop protecting the advocacy of any position, however bad, then free speech is gone, and we’re just haggling over how tight our chains should be.

    I don’t draw lines; the sort of speech that the first amendment protects, it protects absolutely. There are some kinds of speech that were never part of the freedom of speech in the first place, and therefore are not protected. If you used a voice-controlled gun to shoot someone, nobody would claim that the first amendment protects you. The same applies if you used your voice to sic a vicious dog on to someone. In both cases, the “speech” is itself violence; it’s merely violence in the form of words. The same applies if you verbally assault someone; the common law definition of assault is to put someone in reasonable fear of imminent physical harm, and you can do that with a credible threat just as easily as you can by pointing a gun or a knife or by raising a fist. Such speech is inherently violent, and it was never part of the pre-existing freedom that the first amendment protects.

    Incitement, as narrowly defined by the courts, is the same: the words themselves cause a crime to be committed, so the speaker can properly be prosecuted for his role in the underlying crime. But for this to work the definition of incitement must be limited as the courts have done. It must be speech that is designed to cause the listeners to lose their minds and immediately commit a crime as an automatic reaction to the words, rather than as their own choice. If they have time to think about it and make up their own minds, then it’s not incitement but protected advocacy. That’s why it’s almost impossible for anything said in an internet chat room to be incitement.

    Milhouse (ea66e3)

  92. I respectfully disagree.

    I vehemently dislike the introduction to the opinion. I wouldn’t have concurred in it if I’d been a federal judge on the panel. But I think Judge Reinhardt cited a lot of precedent that, with due respect, you’ve completely ignored, Patterico. There are legal standards you’ve not mentioned, and other fact settings that were discussed as reference points of comparison, and you’ve pretty much glossed that over. And essentially the same facts are discussed in both the majority opinion and the dissent; it’s not like Reinhardt was ignoring important supporting evidence that only the dissent was paying attention to.

    As Reinhardt, and apparently Judge Kozinski, read that precedent, it had already been tweaked very hard, and very deliberately, to permit quite a bit of steam-venting short of actual overt acts or preparations for an imminent physical attack.

    I don’t know if they’ve cited and applied all those precedents honestly, but in general, I certainly see the importance of setting a pretty high bar to avoid criminalizing crackpotism. If this guy was guilty of a federal felony involving violence, my guess is that at least a million other Americans are guilty of that same felony or worse ones, and not just during the Obama presidency either. I’m very pleased that the serious plots against our presidents since Reagan (including Saddam’s attempted hit on Bush-41) have been nipped in the bud, but obviously almost none of those millions of similar threats matured into actual attacks.

    YMMV, obviously. This is something over which reasonable lawyers, judges, and laymen can all disagree.

    Beldar (8565ac)

  93. 🙄 So calling for someone’s death is free speech but only if it s a repub right leftoids?

    DohBiden (d54602)

  94. So Reinhardt relies Virginia v. Black, which is possibly one of the most ahistorical decisions in recent history, and at least two 9th Circuit decision, one of them was rather brutally reversed
    by the Supreme Court, US v. Stewart.

    ian cormac (d380ce)

  95. Beldar: I didn’t have time to do a law review article but I thought I captured the essence of their argument in the quote I provided. Again and again, Reinhardt said this was not a true threat because one was a prediction and one was an exhortation. I think that’s a hyperliteral interpretation, and that applying that type of hyperliteralism to the video in question, Reinhardt would say the Mafia guys in sunglasses were expressing their concern for the safety of the Army guy’s unit.

    It would be quite a different opinion if Reinhardt had said: obviously common sense tells us these are threats, but the law requires us to analyze them in a hyperliteral and unrealistic fashion. If that were the argument, I would engage in criticism of the legal doctrines. But it seems clear to me that the problem is, rather, Reinhardt’s pigheaded insistence that these aren’t even threats.

    One gets the impression that, under the logic of this opinion, as long as one phrases their threats in a manner that facially suggests a prediction or exhortation, one can be as threatening as one likes without consequences. It is this precise sort of “logic” that makes the Mafia protection man think he can get away with threats as long as they are phrased in a way that facially suggests concern for a shopkeeper’s safety. This is why I included the video above. It is amusing but in this context it makes a serious point: threats are sometimes phrased as non-threats but are still obviously threats. It is that point, I submit, that deserves discussion.

    Patterico (f724ca)

  96. As for some of the rest of you, I would make the same argument if this were Bush and anyone who reads this blog regularly knows it. I simply don’t discount a threat because it is made to a political opponent.

    Patterico (f724ca)

  97. That letter to Disney/Capital Cities/ABC from the Democrat leadership of the House and Senate prior to ABC’s airing of the Path to 9/11 could in no way be viewed as a threat to ABC’s broadcast license, but merely a communication of Congresses sincere feelings about the solemn responsibilities to the nation conveyed to those holding public broadcasting licenses.

    daleyrocks (bf33e9)

  98. REinhardt’s intro, with the perfunctory extraneous
    footnotes, really indicates this will be slapped down as hard as US v. Stewart, the previous bout of wishful thinking.

    ian cormac (d380ce)

  99. It’s tempting to respond to someone like Milhouse by saying the same sorts of things about Milhouse that this defendant said about Obama. I wouldn’t be able to get Milhouse to admit they were threats, but he would look silly denying it.

    Although that would be rhetorically effective, I won’t do it, because I think saying such things crosses the line. If I get more time, and if Milhouse keeps it up, I might set forth a paragraph saying: here’s what I would say if I were to say such a thing, which of course I never would. Then I could include all kinds of exhortations for people to commit all kinds of specific violence upon said commenter — all for the purpose of showing what I would never say.

    For now, I put it this way: if I predicted that someone was going to buy Milhouse ice cream, and exhorted all of you to buy him ice cream, I would be trying to get Milhouse to dwell on the idea that someone might buy him ice cream. If it were somehow illegal for me to promise to buy him ice cream myself, you might well conclude that I really was promising him ice cream, but merely being cute about how I phrased it.

    Reinhardt and Milhouse claim you can’t read between the lines. But like the guy who holds up three fingers and asks you to read between the lines, sometimes the message conveyed is plenty clear even if a hyperliteral reading might suggest otherwise.

    Patterico (f724ca)

  100. Daley,

    Exactly.

    Nice broadcasting license you got there. Be a shame if you lost it.

    Nice business you got there. Be a shame if you lost it.

    Nice life you got there. Be a shame if you lost it.

    Must we pretend these are all expressions of genuine concern? Does the law require it? If so, the law is an ass (a possibility I do not entirely discount) — but I don’t think the law requires it.

    Patterico (f724ca)

  101. “Actual threats are not part of the freedom of speech that the amendment protects.”

    Yes, they are. ALL speech is.

    If you don’t like that…amend the Constitution.

    Or, we can continue with the system we have now, where governments simply ignore the Constitution whenever it’s expedient to do so.

    Dave Surls (28f866)

  102. Patterico, my friend, it seems as though your argument treats all threats as being equally plausible and hence, equally appropriate to criminalize. Am I mis-reading you?

    The majority reads the precedents as saying that’s the wrong approach. The majority is instead using contextual facts to sort threats into two piles, plausible and implausible. At the end of the day, unless we’re to have a gulag society, one fully hopes and expects that the implausible (and non-criminal) pile is going to be much, much taller. And indeed, the majority claims that the precedents compel judges to do this sorting, this effort at nuanced interpretation among threats, to promote First Amendment concerns.

    Of course, your comment that you weren’t trying to write a law review article is correct. You and I and many other lawyer-bloggers try hard to debate these topics without that crust of anal academic pomp and circumstance. I didn’t mean to imply any criticism, nor to be urging you to make your discussion less accessible to a broad audience.

    And I haven’t studied this area of the law, I’m not pretending to know all, or any, of these precedents cold. Indeed, I haven’t read all the supporting (or competing) precedents, and I don’t know if Reinhardt has fairly characterized them. He’s so often proved himself to be intellectually dishonest in the past that I’m hesitant to trust him. I would expect Kozinski and his clerks to have checked, though, before he concurred in Reinhardt’s majority opinion. (But then again, I wouldn’t have expected Kozinski to sign off on Reinhardt’s “hate-America-first/Obama is the Messiah” rant in the introduction either.)

    There’s one debate here about how to sort ought those threats. But are you also suggesting we ought to just have one big pile, “threats,” without sorting at all between the plausible and the implausible? I.e., do you reject the entire notion that there are First Amendment-related concerns which properly impel judges to tweak the sorting process to produce a small pile of only the really, really plausible threats?

    That would be an intellectually consistent position — not one I’d agree with, but one I’d respect. I just don’t want to impute it to you if there’s actually some sorting that you think ought to be done, and I’m just misunderstanding you.

    I will also admit that I’m extremely suspicious, as a general rule, of Jackson v. Virginia-based rulings — effectively appellate-level directed verdicts of acquittal. It’s troublesome to contemplate the amount of discretion inherent in the power to independently review the record to determine whether the evidence, when viewed by any rational trier of fact in the light most favorable to the prosecution, could reasonably support a finding of guilt beyond a reasonable doubt. I suppose it’s the appellate counterpart to a trial judge’s traditional ability to grant a new trial “in the interests of justice,” meaning “because he thinks that’s what ought to be done (and we’re not going to dig at all into why he thinks that or if he’s right).” But that’s a 30-year-old suspicion on my part that’s not limited to this case or to Reinhardt by any means.

    Beldar (8565ac)

  103. Well, you do get a lot more feedback from the Government in a Gulag Society.

    AD-RtR/OS! (7b7c30)

  104. And what’s this in SF about making ex-cons a protected minority class?
    http://www.foxnews.com/us/2011/07/22/san-francisco-considers-legal-protection-for-criminals/

    AD-RtR/OS! (7b7c30)

  105. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, except Congress may make laws against people threatening violence against public officials…”

    There ya go.

    See how easy it would be to change the Constitution so that people who verbally threaten pols could LEGALLY be punished under federal law for doing so?

    It ain’t that tough.

    As it is now, however, ALL federal laws that abridge freedom of speech are unconstitutional…and, there ain’t no ifs ands or buts about it.

    Big deal, as far as I’m concerned. Most of what the feds do is unconstitutional anyway, and the Constitution is pretty much a joke, so why get all upset about this one itty bitty violation.

    It’s just business as usual.

    Dave Surls (28f866)

  106. “As it is now, however, ALL federal laws that abridge freedom of speech are unconstitutional…and, there ain’t no ifs ands or buts about it.”

    Dave – From the opinion “Although the State cannot criminalize constitutionally protected speech, the First
    Amendment does not immunize “true threats.”” and “that ‘the
    element of intent [is] the determinative factor separating protected
    expression from unprotected criminal behavior.””

    So sure, don’t abridge speech, but be prepared to face the consequences.

    daleyrocks (bf33e9)

  107. Sorry, this guy is a clearly racist idiot, but I’m going to defend to the death his right to be a racist idiot.

    The idea that one can’t express a desire for, or even an interest in doing, something illegal to the PotUS or anyone else on the planet, without making any serious effort to act on that interest is blatantly unconstitutional. And no, owning the guns making it possible to act is insufficient preparation. I’m not claiming he has to get into position to do the job to be charged with it, but there’s certainly a massive difference between mouthing off like a loudmouthed asshole and taking criminal action.

    …Or there should be.

    And yeah, I’m aware there are some laws on the books that say otherwise. THOSE are unconstitutional, too. Regardless of current jurisprudence on the matter.
    >:-/

    Smock Puppet,, Grammatical Analyst III (c9dcd8)


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