By Mike Dorf
Last week, in United States v. Bagdasarian, a panel of the U.S. Court of Appeals for the Ninth Circuit held, 2-1, that the defendant, who was described by Judge Reinhardt's majority opinion as "an especially unpleasant fellow," did not violate the law forbidding threats of violence against Presidential candidates when he posted messages on the internet using racist language that approved of violence against then-candidate Obama. The opinion was joined by Chief Judge Kozinski, with a dissent by Judge Wardlaw. It's interesting and noteworthy in part because of an introductory portion of the opinion in which the court places Bagdasarian's comments in the context of political invective throughout history as well as characterizing some of the opposition to candidate Obama as significantly racist.
The case itself is interesting because of how the court deals with the evidence of whether Bagdasarian posed a "true threat" both objectively and subjectively, as required by prior 9th Circuit precedent. The panel held that the proof of subjective intent was required under the First Amendment, as interpreted by the Supreme Court in Virginia v. Black. I'm not sure I agree with the court's bottom-line ruling. The government introduced evidence that Bagdasarian had in his possession .50 caliber weapons and ammo, and his message board postings referred to just such a weapon along with what the court called a "prediction" and an "exhortation" to use them against Obama. Taken together, I think one might conclude that they show both objective and subjective intent. The court thought otherwise, though, and I'm not especially interested in parsing the facts. For an excellent discussion of how to decide whether Bagdasarian's postings should count as true threats under the existing doctrinal test, I recommend Julie Hilden's new column on the case on Verdict.
I am more interested in the question of what kind of showing with regard to intent the First Amendment should be interpreted to require in the first place. The Bagdasrian court is right that the Black case pretty clearly requires that a subjective intent is required. I want to ask whether that makes sense.
To do so, we can start by asking what the law enforcement strategy should be with respect to people who say things that could be perceived as threatening. I think that we want law enforcement resources targeted at those people most likely to turn out to be dangerous. That should mean targeting people who make threats with the subjective intent of carrying them out--or at least, as was required in Black, with the subjective intent to intimidate. (Black involved a cross-burning prohibition.)
The difficulty, here as in other contexts, is that subjective intent is difficult to prove. One can only prove it by external manifestations. And so, as a kind of short-cut, we might want to permit the government to prosecute people for making statements that, as perceived by an objective observer, appear to be made with an intent to carry out the threat (or something close, like intimidation). The worry that drives the rule in Bagdasarian and Black is that someone might use words that objectively convey a true threat even though he did not intend them that way. And so, to protect free speech, the Court disavows an objective test.
This strikes me as over-protective of speech. So long as people are on notice that statements which objectively convey a threat could subject them to criminal prosecution, there is no unfairness in prosecuting them for making such statements. To be sure, notice satisfies due process concerns but not free speech concerns. I can live with that. To my mind, the speech value of a statement that credibly threatens another person with death or bodily harm, even if intended only as a cruel joke or a bluff, has so little value as a contribution to the exchange of ideas, that I would define it as falling within the constitutionally proscribable category of true threats.
Thus, if I were writing on a clean slate, I would fashion a First Amendment rule that allows the government to prove a true threat by showing either subjective or objective intent to make a true threat.