Eliminating the Subjective Intent Requirement for True Threats in United States V. Bagdasarian

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I. INTRODUCTION

From the founding of our nation, freedom of speech has been considered a sacrosanct right of citizens, but has never been absolute. The Supreme Court has "long recognized that the government may regulate certain categories of expression consistent with the Constitution."1 The categories of speech that fall outside of the scope of First Amendment protection include "a few limited areas, which are Of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.'"2 As a result, "true threats," or "threats of physical violence," are not protected by the First Amendment and may be proscribed by government.3 Although this rule appears straightforward, courts have found it difficult to distinguish between what does and does not constitute a true threat.4

The fine line between what is a true threat and what is protected speech was revisited by the Ninth Circuit Court of Appeals in United States v. Bqgdasariñn, in which the court found that a subjective intent analysis is required by the First Amendment in determining what constitutes a true threat.5 This Note argues that the Ninth Circuit erred in finding that a subjective intent analysis must be engrafted onto every true threat statute because the rationale for proscribing true threats from First Amendment protection originates from objective harm to others and not from the subjective intent of the individual. Therefore, the Supreme Court should resolve the split this decision creates among circuit courts by holding that Virginia v. Black does not automatically require a subjective intent analysis to determine what constitutes a true threat.

Part II of this Note discusses the context and procedural background of Bagdasarian. Part III reviews the Bagdasarian majority opinion, while Part IV reviews the concurring opinion of Judge Wardlaw. Part V argues that the court erred in presuming that the First Amendment requires a subjective intent analysis to be grafted onto all true threat statutes. Part VI concludes this Note.

II. CONTEXT & BACKGROUND

On October 22, 2008, Walter Edward Bagdasarian joined a "Yahoo! Finance - American International Group" message board, where comments are posted by the public regarding "financial matters, AIG, and other topics."6 Under the username "californiaradial," Bagdasarian made a series of comments that were racially charged and that encouraged violence.7

At 1:15 a.m., Bagdasarian posted the first comment for which he would later be charged with a crime when he wrote under the subject heading "OBAMA,": "fk the niggar, he will have a 50 cai in the head soon"8 ("Bagdasarian's first statement"). This was followed six minutes later by another post under that same heading that "combined [Bagdasarian's] pro-bomb and anti-Obama rhetoric," by writing, "yea, the honest people have NO guns and the scum bags, niggars and drug fks do, thanx obombhaaaaa."9

At 1:35 a.m., Bagdasarian posted the second threat for which he was criminally charged by creating his own subject heading, "shoot the nig," and writing: "country fkd for another 4 years+, what nig has done ANYTHING right? ? ? ? long term? ? ? ? never in history . . . ." 10 ("Bagdasarian's second statement").

At this point, several other participants had endured enough of Bagdasarian's crude and violent comments, and a handful of participants fired back. "Dan757x" responded to Bagdasarian's Second Statement stating: "You've been reported by me, a good ole' white boy."11 The next post by "Freddie226" said, "I hope everyone reports this type of garbage."12 This was followed by "Sniper 1 agent" commenting, "[b]e advised Federal Law Enforcement is monitoring," and by "Brown.romaine," who warned: "I am reporting this post to the Secret Service."13 By 8:00 a.m. the next morning, Bagdasarian sought to excuse his earlier comments by claiming he was drunk. …