Man's call for Obama assassination is free speech, not crime, court rules

[n2doc]

A La Mesa man who posted racial epithets and a call to "shoot" Barack Obama on an Internet chat site was engaging in constitutionally protected free speech, a federal appeals court ruled Tuesday in overturning his criminal conviction.

Walter Bagdasarian was found guilty two years ago of making threats against a major presidential candidate in comments he posted on a Yahoo.com financial website after 1 a.m. on Oct. 22, 2008, as Obama's impending victory in the race for the White House was becoming apparent. Bagdasarian told investigators he was drunk at the time.



A divided panel of the U.S. 9th Circuit Court of Appeals overturned that conviction Tuesday, saying Bagdasarian's comments were "particularly repugnant" because they endorsed violence but that a reasonable person wouldn't have taken them as a genuine threat.

The observation that Obama "will have a 50 cal in the head soon" and a call to "shoot the " weren't violations of the law under which Bagdasarian was convicted because the statute doesn't criminalize "predictions or exhortations to others to injure or kill the president," said the majority opinion written by Judge Stephen Reinhardt.

more

http://latimesblogs.latimes.com/lanow/2011/07/online-call-to-shoot-obama-was-free-speech-not-a-crime-appeals-court-rules.html

[Stuart G]

1. This is nuts. Unbelievable.

[Tesha]

2. Actually, ugly though it may be, that's what Free Speech looks like.

The wonder is that we weren't getting these kinds of rulings
during the Bush years.

Tesha

[Gman]

3. But crying "fire" in a crowded theater is not free speech

By this reasoning a reasonable person wouldn't take the cry seriously?

Or maybe it's ok to say someone should burn down that theater witheveryone inside it burned to death. Or, it's ok to Put a gun rifle crosshair on a politician's face because NO REASONABLE PERSON would shoot am congresswoman in the head.

[billh58]

11. Actually, Oliver Wendall Holmes'

statement was: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."

The statement is, more often than not, misquoted by leaving out the word "falsely," and adding the word "crowded." The statement, and the opinion it represents has little to do with the "reasonable person" argument, but is based on the "clear and present danger" argument. In other words, if a statement is intended to cause harm, it is not free speech.

http://en.wikipedia.org/wiki/Shouting_fire_in_a_crowded_theater

[July16th-20th]

4. What???

Incitment to Violence. HeLLO???

[yodermon]

5. remember the guy who made the "burning bush" comment?

Is he still in jail?

[PoliticAverse]

8. Here's background on that case...

http://www.firstamendmentcenter.com/news.aspx?id=12391

[midnight]

6. That is a threat, and it's being ignored... Children are being

being arrested for drawing pics. of killing people... How come that's not proteced under free speech...


Two Boys Arrested For Violent Stick Figure Drawings .http://www.wftv.com/news/4130375/detail.html

[Bake]

7. Does that mean it's okay to hope somebody busts a cap in Bagdasarian's ass?

We're edging ever closer to outright civil war.

Bake

[Doctor_J]

26. We would be if our side had any gumption

As it is, we're just being run over

[John Agar]

9. That is just insane.

I'm speechless.

[Name removed]

10. Deleted message

Message removed by moderator. Click here to review the message board rules.

[rug]

12. It's a good decision, has a solid analysis of the difference between a real threat and free speech

http://documents.latimes.com/usa-v-walter-bagdasarian/

[_ed_]

13. GREAT decision!

The First Amendment's language allows for no exceptions, no matter how reprehensible. This is a great day for freedom.

"Congress shall make NO LAW..."

That's NO law. There should be no exceptions. Not fire in a crowded theater, not threatening someone's life. Actions should be crimes, not speech and not thought.

[uponit7771]

16. Then losing 10 grand somewhere for a hit man to pick after "suggesting" the death of someone

...would be legal?

[onenote]

19. No. That would be conspiracy to commit a crime.

[_ed_]

22. That's called conspiracy to commit murder

Still a crime -- clearly not a thoughtcrime since money is changing hands.

[billh58]

18. I respectfully disagree, in that

no "Right" is absolute. Most Rights granted by the Bill of Rights, and the freedoms guaranteed by the rest of the Constitution, have been regulated or restricted to some extent -- in the public interest. Actually "free speech" (for the most part) does not exist on private property. Falsely shouting "fire" in a theater in order to cause panic and possible deadly harm, does not enjoy the protection of the First Amendment. In several subsequent rulings, the SCOTUS upheld the general principles of Schenck vs. United States and the Smith Act based on a test of "the advocacy of action, not ideas."

The same premise goes for other Rights: You can not carry a gun onto my private property if I do not allow it, or into certain public buildings where it is regulated, and even where public carry of firearms is legal, there are restrictions which apply to "brandishing," etc. People may not assemble for any purpose on my private property unless I allow it, or in certain public venues without prior permission, and where "public assembly" is allowed, there are restrictions about "disturbance of the peace," etc. The list goes on...

The prohibition that Congress "shall make no law" is very specific in its definitions, but does not prevent the regulation and reasonable restriction of the Rights it refers to.

[_ed_]

24. I disagree

Other rights, like the Fourth Amd., make it clear that the right to privacy is adulterated by the judiciary's ability to issue a search warrant.

On the other hand, the First Amendment says, "Congress shall make NO LAW..." NO LAW.

I'm well aware that this has been chipped away at over the years, and no court would agree with me, but I think in principle, speech should be absolutely free with no restrictions of any kind.

It's one of the only things that makes American different from other countries.

[billh58]

27. I believe that you

are missing the point of the decisions. All speech is free -- as long as it does not incite (or cause) the breaking of a valid law. The remedy for public lying and slander about an individual is a civil lawsuit, and has nothing to do with "freedom of speech." Congress has made no law against lying, but the harm caused by lying has a legal penalty in a civil court. Also see the laws about perjury.

If a person says, "I wish that someone would burn down this theater and kill all of the people in it," that is protected speech. If that same person loudly says, "Fire!, Fire! Everybody run!" and there is no fire and people are harmed or killed in the ensuing panic, that is NOT protected speech, nor should it be.

And lastly, Congress did not "make a law" prohibiting the speech that has been the subject of SCOTUS cases which rendered these judgments. All of the cases have been brought not because of what was said, but the harmful actions that were caused by that speech. If I tell you to "go rob a bank" and you do, I may be guilty of conspiracy depending on the circumstances.

The First Amendment has not "been chipped away at," and the Constitution, and America, are as strong as ever.

[boppers]

21. Did you read the whole decision?

Threatening someone's life *is* a crime (especially so, if they're a public official, and even more so if they're a top official), if it is perceived as a credible threat. The decision hinged on whether or not the statements made actually represented a credible threat. The decision went into great detail on this topic.

[_ed_]

23. Of course

That would fall under conspiracy, which is still a criminal offense.

But you can't nail someone on conspiracy for thoughts or words alone. There must be preparatory actions.

[COLGATE4]

28. You're not correct. Laws against libel are OK. Likewise laws

against incitation to immediate violence. No Amendment is absolute, not even the 1st Amendment.

[golfguru]

14. if free speech protects Nazi's, it protects everyone

Unless one is caught with a weapon near the president, just shouting death threat with no weapons is free speech.

[uponit7771]

15. Isn't illegal to advocate for violence against someone?

[and-justice-for-all]

17. revolting...nt

[Honeycombe8]

20. This country is going to hell in a handbasket. I can't believe such a ruling. It's...

disgraceful.

[_ed_]

25. Freedom of speech is disgraceful?

Just because you don't like the content?

How far do we go down that road?

[billh58]

30. Again you are confusing

"freedom of speech" with the intentions of the speaker. The reason that Bagdasarian's public threats and speech were protected by the First Amendment was that the court determined that "a reasonable person wouldn't have taken them as a genuine threat."

Had Mr. Bagdasarian uttered the exact same words while driving in close proximity to Candidate Obama and carrying a loaded weapon, his conviction would have been upheld because a "reasonable person" would perceive a genuine threat. The words he said were protected by the First Amendment, while his potential to become a "clear and present danger" was subject to other laws not based on speech, but upon intent and actions.

You are free to vocally criticize the president, or anyone else, and call them vile names, wish them harm, curse their mothers, or attempt to pray them to death. You may not threaten someone with physical harm and show that you intend to carry out that threat while screaming at the top of your lungs about your "freedom of speech."

Laws concerning verbal or written terroristic threatening, slander and libel, perjury, conspiracy to commit a crime, inciting a riot, etc., are valid and proven reasons to restrict some forms of speech.

[Cherchez la Femme]

29. All you had to do was to look in Cheney or W's direction

and you got arrested.

This. This is OK.


The entire country is mad.