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 [racist slur]" 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.
"When our law punishes words, we must examine the surrounding circumstances to discern the significance of those words’ utterance, but must not distort or embellish their plain meaning so that the law may reach them," said the 2-1 ruling in which Chief Judge Alex Kozinski joined but Judge Kim McLane Wardlaw dissented.