Two weeks before Barack Obama was elected president of the United States, a California man posted racial epithets on a Yahoo! message board and comments that Obama would find himself with a "50 cal in the head soon."
Walter Bagdasarian actually had a .50 caliber weapon in his house and after waiving his right to a trial by jury, and he was found guilty by a federal judge of threatening to kill or do bodily harm to a major presidential candidate.
Yesterday, however, in a 2-1 vote, a panel of the United States Court of Appeals for the Ninth Circuit overturned that conviction saying Bagdasarian's speech was protected by the First Amendment.
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.
In the majority opinion, Reinhardt wrote that "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."
Judge Kim McLane Wardlaw, who dissented in part, wrote that a ruling like this could discourage potential presidential candidates.
"Not only could the fear engendered by true threats limit a candidate's freedom to participate fully in the debate leading up to the election — thus depriving the campaign process of its valuable public function ... but the failure to take such threats seriously could ultimately deprive our country of a public servant and potential leader," Wardlaw wrote.
The San Francisco Chronicle reports that prosecutors have two options now. They can appeal to the whole 9th Circuit or kick it up to the Supreme Court:
Eugene Volokh, a UCLA law professor and legal commentator, said the high court might well decide to review the case.
"This is a close case," he said. "The line between punishable threats and protected vituperation, or even protected advocacy of violence, is not completely clear."
If you're curious, the law in question is 18 U.S.C. § 879.