When Threatening a Politician Is Still Free Speech

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Two weeks before the 2008 election, a California man left a vicious message about Barack Obama on a Yahoo finance message board. "Re: Obama fk the niggar, he will have a 50 cal in the head soon." He followed it up with another ugly post, which began simply: "Shoot the nig."

There was more to come. On Election Day, the same poster sent disturbing emails about shooting someone that, as one court put it, "would appear to confirm the malevolent nature of the previous statements" - as well as the poster's "own malignant nature."

One of the message board participants reported the initial postings, and the Secret Service investigated. With Yahoo's help, it traced the messages to the home computer of Walter Bagdasarian, now 49, a resident of La Mesa, Calif. When agents searched his house, they found that he had weapons in his home, including a .50 caliber muzzle-loading rifle - the caliber of bullet the post said would soon be in Obama's head.

In July of 2009, Bagdasarian was convicted of violating 18 USC s 879(a)(3), a federal law that makes it a felony to threaten a major presidential candidate with death or bodily harm. Last week, a federal appeals court in California reversed his conviction - which had gotten him sentenced to 60 days in a halfway house — ruling that his posts did not fall under the law, and that his speech was protected by the first amendment.

United States v. Bagdasarian was the latest attempt by the federal courts to police the blurry line between criminal threats and protected speech — a line that has become more important than ever as the Internet has given rage-filled people unprecedented opportunities to spew hate.

Regardless of how offensive it can often get, the courts are rightly reluctant to let political speech be criminalized. To be convicted under 879(a)(3), it is not enough that someone has made menacing statements. They have to have intended to threaten injury or death, and people viewing the words objectively have to regard them as threatening. In addition to these requirements under 879(a)(3), there is a separate first amendment test: the speaker's words must be a "true threat" — which in this case the court defined as "a statement which, in the entire context and under all the circumstances, a reasonable person would foresee would be interpreted by those to whom the statement is communicated as a serious expression of intent to inflict bodily harm upon that person."

The San Francisco-based U.S. Court of Appeals for the 9th Circuit ruled, by a 2-1 vote, that Bagdasarian's posts did not meet these tests. The majority was deeply unhappy with Bagdasarian - "an especially unpleasant fellow," the court said - and his words. But the judges in the majority also insisted that the posts were not illegal. There was not enough evidence, they said, to find that Bagdasarian actually intended to put Obama at risk, or that a reasonable observer would think that he did. What's more, the posts were not "true threats." The court contrasted Bagdasarian's words with those from another case, in which an enraged discharged employee posted threats like "I will kill you" and "I will personally send you back to the hell from where you came."

While the majority said that Bagdasarian could not be convicted of a crime, the dissenting judge disagreed. She viewed his words as threats that were "nonconditional, alarming, and dangerous." She also argued that they should be viewed in light of the nation's history of racial violence - and the fact that Obama was trying to be the nation's first black President. The dissent also noted that online threats had been preludes to terrible acts of violence, including the shootings at Columbine High School in 1999 and the killings at Virginia Tech in 2007.

There is no easy way of handling political speech that carries with it a suggestion of menace. On the one hand, we want people to be able to criticize government, elected officials, and candidates passionately and emphatically. In 1969, in a case called United States v. Watts, the Supreme Court reversed the conviction of an 18-year-old for saying, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." The man was expressing his strong opposition to being drafted for the Vietnam War and, the court noted, "[t]he language of the political arena... is often vituperative, abusive, and inexact."

On the other hand, threats can go too far. In 2002, the 9th Circuit reviewed a damage award against a website with an online "wanted poster" that included home addresses and other personal information about abortion workers. In that case, a sharply divided court ruled that the website contained "true threats" that were not protected by the first amendment. The court considered not only the words and images but the reality that abortion providers were actually being shot and killed in parts of the U.S. around the same time.

The issue of online hate speech does not lend itself to absolute pronouncements. If the law is too tough, freedom of speech will be constrained in the most important forum available today for the public to discuss politics. If the law is too lenient, it will allow the Internet to be used as a means of instilling fear and organizing domestic terrorism.

In United States v. Bagdasarian, the 9th Circuit struck the right balance, upholding the public's right to make loathsome statements that come close to - but do not reach - the level of a true threat.

Cohen, a former TIME writer and former member of the New York Times editorial board, is a lawyer who teaches at Yale Law School. Case Study, his legal column for TIME.com, appears every Monday. You can continue the discussion on TIME's Facebook page and on Twitter at @TIME.