1st Amendment gets weirder

Overheal

http://latimesblogs.latimes.com/lanow/2011/07/online-call-to-shoot-obama-was-free-speech-not-a-crime-appeals-court-rules.html

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.

What I find oddest about the decision was they assumed because a "reasonable person" wouldn't take it seriously, it would be OK. Haven't we learned already that people that commit these kind of acts of violence (such as in Arizona and Oslo) aren't reasonable people?

It does remind me of a conversation I had at my family home about 2 months before the election, where I mused the possibility that someone would strongly want the man dead. It almost got rather violent, my brother thought just discussing the topic would actualize such an event - as if the entire nation was listening in on our back porch.

AhSureTisGrand

Overheal wrote: »

What I find oddest about the decision was they assumed because a "reasonable person" wouldn't take it seriously, it would be OK. Haven't we learned already that people that commit these kind of acts of violence (such as in Arizona and Oslo) aren't reasonable people?

But should someone be responsible in that way for what unreasonable people do? What with them being unreasonable and all, the most benign comment could lead to an Arizona incident. One cannot reasonably predict the outcome of unreasonable people hearing certain things

FreudianSlippers

That's a particularly bad decision of the Court of Appeals IMO. Note that it was a "divided" panel of them as well.

Our Constitution is actually slightly better than the US Constitution when it comes to free speech, in that you have the right to "offend, shock and disturb" but not when it amount to incitement of hatred or violence.

The interesting (strange) thing about this is that the 9th Circuit is a very liberal circuit... which is probably why we have this decision.

EDIT:
I've read the decision now, and I see why they did it. Essentially the guy is a bit thick and lacked the capacity or intent to actually carry out the threats.
The Courts merely incited his use of freedom of speech to overturn a criminal conviction. They found he had no actual subjective intent to cause harm to anyone and he was just being a dickhead basically lol.

BTW: What's an Armenian guy in the USA doing being racist? lol

Overheal

Our Constitution is actually slightly better than the US Constitution when it comes to free speech, in that you have the right to "offend, shock and disturb" but not when it amount to incitement of hatred or violence.

Hang on now, if thats the case why has the site had to dance around libel and defamation so much?

FreudianSlippers

Defamation, as there is not more libel or slander in this jurisdiction, is one of the exceptions to freedom of speech in this country (as well as the US and every other common law jurisdiction that I can think of).

It's relatively clear that "freedom of speech" is almost always subject to restrictions. Even looking at Article 40.6.1° of Bunreacht na hÉireann:

The State guarantees liberty for the exercise of the
following rights, subject to public order and morality:

i. The right of the citizens to express freely their
convictions and opinions.
The education of public opinion being,
however, a matter of such grave import to
the common good, the State shall
endeavour to ensure that organs of public
opinion, such as the radio, the press, the
cinema, while preserving their rightful
liberty of expression, including criticism of
Government policy, shall not be used to
undermine public order or morality or the
authority of the State.
The publication or utterance of
blasphemous, seditious, or indecent matter
is an offence which shall be punishable in
accordance with law.

It's now enshrined in Article 10 of the European Convention on Human Rights, which inter alia allows for restrictions on freedom of speech where it is necessary to protect the reputation or rights of others.

The site takes a very cautious approach on defamation (and probably to an extent, rightfully so) because it's easier to dam the waters before the flood starts (that analogy probably makes zero sense ); but in order for a comment to be defamatory it must be untrue and it must damage the reputation of the defamed in the eyes of right-thinking members of society. There must be an exception to freedom of speech to allow for the prevention of this.

Denerick

People want to kill Barack Obama? No shít Sherlock. Just take a look at the poisonous nature of American political discourse, the mockery of civic virtue and intelligence amongst the American right, and you'll see why so many want Obama dead. Obama stands for a reasonable, moderate sort of person in an age of extremes, where everything is a matter of brinkmanship. Thankfully he is guarded by hundreds of secret service bodyguards and the people who want him dead are inbred far right hicks with a collective IQ in the low teens. They might be able to load a gun but I doubt they have the intelligence to operate its firing mechanism.

And I don't think people should be prosecuted for what they write on blogs and forums, sadistic musings does not necessarily signal intent. After all, on the internet nobody knows you're a dog.

matthew8

Denerick wrote: »

People want to kill Barack Obama? No shít Sherlock. Just take a look at the poisonous nature of American political discourse, the mockery of civic virtue and intelligence amongst the American right, and you'll see why so many want Obama dead. Obama stands for a reasonable, moderate sort of person in an age of extremes, where everything is a matter of brinkmanship. Thankfully he is guarded by hundreds of secret service bodyguards and the people who want him dead are inbred far right hicks with a collective IQ in the low teens. They might be able to load a gun but I doubt they have the intelligence to operate its firing mechanism.

And I don't think people should be prosecuted for what they write on blogs and forums, sadistic musings does not necessarily signal intent. After all, on the internet nobody knows you're a dog.

That is the most sheepish post I have ever read.

Denerick

matthew8 wrote: »

That is the most sheepish post I have ever read.

Whats sheepish about it? That the far right hicks plotting against Obama are inbred morons or that sadistic internet idiots don't deserve to be prosecuted for acting the big man on blogs?

matthew8

Denerick wrote: »

Whats sheepish about it? That the far right hicks plotting against Obama are inbred morons or that sadistic internet idiots don't deserve to be prosecuted for acting the big man on blogs?

Basically you've called all people plotting against Obama far-right inbred hicks with extremely low IQs, which is a stereotype of the right. I think you will find many people in far-off lands on the left plotting against him. You've sheepishly followed what internet liberals say by calling all plotting against him far right inbred morons.

Overheal

Basically you've called all people plotting against Obama far-right inbred hicks with extremely low IQs, which is a stereotype of the right.

What he actually said:

That the far right hicks plotting against Obama are inbred morons or that sadistic internet idiots don't deserve to be prosecuted for acting the big man on blogs?

I don't see where he said everyone plotting against Obama is a Far-Right Hick. I do however see where he believed that there existed Far-Right Hicks out there, plotting against Obama.

I think you will find many people in far-off lands on the left plotting against him.

I'm sure that is true also.

Denerick

matthew8 wrote: »

Basically you've called all people plotting against Obama far-right inbred hicks with extremely low IQs, which is a stereotype of the right. I think you will find many people in far-off lands on the left plotting against him. You've sheepishly followed what internet liberals say by calling all plotting against him far right inbred morons.

What Overheal said. Also I stand by my comment that the current conservative movement AKA the Tea Party is an insult to Buckley, Goldwater, and all the other heroes of the old conservative movement. Intellectual pygmies.

And keep the 'internet liberals' spiel to yourself. I am a liberal, and proud of that fact.

matthew8

Denerick wrote: »

What Overheal said. Also I stand by my comment that the current conservative movement AKA the Tea Party is an insult to Buckley, Goldwater, and all the other heroes of the old conservative movement. Intellectual pygmies.

And keep the 'internet liberals' spiel to yourself. I am a liberal, and proud of that fact.

So first you talk about the modern conservative movement being an insult to the old one, but then you call yourself a liberal. Current liberals are an insult to the originals, even more so than the tea party, because at least in the tea party there are a few gems to be found.

matthew8

Denerick wrote: »

the people who want him dead are inbred far right hicks with a collective IQ in the low teens. They might be able to load a gun but I doubt they have the intelligence to operate its firing mechanism.

Overheal wrote: »

I don't see where he said everyone plotting against Obama is a Far-Right Hick.

There.

Denerick

matthew8 wrote: »

There.

I don't understand what that is supposed to prove. The people who want Obama dead are by and large inbred hicks with a glazed look in the eye and complete in the thrall of the demagogues of the far right. Do you deny that?

matthew8

Denerick wrote: »

I don't understand what that is supposed to prove. The people who want Obama dead are by and large inbred hicks with a glazed look in the eye and complete in the thrall of the demagogues of the far right. Do you deny that?

Not without cold hard evidence. I do however suspect that many who want to kill him fit that description. The way your post was written implies all people who want to kill him fit that description.

SeanW

FreudianSlippers wrote: »

EDIT:
I've read the decision now, and I see why they did it. Essentially the guy is a bit thick and lacked the capacity or intent to actually carry out the threats.
The Courts merely incited his use of freedom of speech to overturn a criminal conviction. They found he had no actual subjective intent to cause harm to anyone and he was just being a dickhead basically lol.

Got it in one.

A Primal Nut

I've seen lots of posts here and elsewhere where people say "I'd love to kill ..........." "I'd love to push .........of a cliff".

Although this guy's comment was particularly disgraceful and horrible, I still think it should be protected by free speech. People say all kinds of things online, I don't think this counts as any kind of definite plan.