Man's Call to Shoot Obama is Free Speech, Not a Crime

By Stephanie Rabiner, Esq. on July 21, 2011 | Last updated on March 21, 2019

Walter Bagdasarian is an "especially unpleasant fellow," but that doesn't mean he violated the law in 2008 when he encouraged members of a message board to shoot Obama.

The racist and violent statements made by Bagdasarian against the then-candidate appear to violate a federal statute criminalizing threats of violence against presidential candidates. But the 9th Circuit Court of Appeals has ruled that they are actually speech protected by the First Amendment.

A month prior to the 2008 presidential election, Walter Bagdasarian anonymously posted the following statements on a message board:

  1. "Obama f- the n- he will have a 50 cal in the head soon," and
  2. "shoot the n-."

A concerned reader reported these statements to the Secret Service, which eventually led to an arrest and prosecution.

Federal law makes it illegal to "knowingly and willfully threaten to kill, kidnap, or inflict bodily harm upon...a major candidate for the office of the President."

As the court points out, this statute can only punish speech that is not protected by the First Amendment. Though the First Amendment protects violent statements, it does not protect true threats.

A true threat is one backed by sufficient evidence demonstrating that a reasonable person would believe the speaker to intend harm, and that the speaker intended his statement to be understood as such.

The 9th Circuit concluded that that the above statements do not indicate that Walter Bagdasarian intended to shoot Obama.

Instead, it found that the first statement merely predicts that President Obama "will have a 50 cal in the head soon," while the second encourages others to behave violently.

Given the fine line between true and idle threat, this isn't necessarily an unsurprising decision. However, in light of its vast implications, and the fact that Walter Bagdasarian was encouraging others to shoot Obama, it may be just right for Supreme Court review.

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