United States v. Bagdasarian was decided today, reversing the conviction of a Southern California man for disturbing and violent comments about Barack Obama posted to a message board in the weeks before the 2008 elections.
The Ninth Circuit panel’s opinion was written by Judge Reinhardt and joined by Chief Judge Kozinski (who not infrequently find themselves strongly disagreeing about other issues), with a partial concurrence and partial dissent by Judge Wardlaw. The opinion describes the defendant as “especially unpleasant,” his comments as “particularly repugnant,” and his conduct as “inexcusable” — all sentiments with which I heartily agree, in addition to a whole lot of other adjectives, printable and unprintable. But in an opinion heavily dependent (and appropriately so) on the crimes charged and the contextual nuances surrounding Bagdasarian’s posts, the panel finds that the posted comments did not amount to true threats, under the federal statute in question (as constrained by the First Amendment).
Update: Eugene Volokh explains further … and predicts a good chance for en banc rehearing or cert grant.