Freedom of speech is something that’s been near and dear to my heart ever since I was a wee lad spouting “you can’t make me!” to my mom when she told me to be quiet.  (I was right, too.  The slap on my face only made me louder.)

The reporter interviewed me for about 40 minutes, during which I mentioned to him that I found the case interesting and would likely blog about it.  Since his article went online today, and I want to clarify something about my comments, now’s the time.

First, a word of warning.  This post may contain some foul language — it’s not because I like to use foul language (I prefer not to), but because the case itself involved the use of foul language.  I don’t really know how to clearly discuss the case without mentioning the language.  Thus, if you feel you’re going to be offended by a few words of foul language, you might want to stop reading now.

Second, a disclaimer.  I’m not a constitutional scholar, or even a constitutional lawyer.  My practice in Fresno, California, is (so far) completely focused on criminal defense.  Constitutional issues frequently come up in criminal law — the Bagdasarian case is one example — but the closest I come being a constitutional scholar is that I pulled down a 90 in Professor Purvis’s summer session “First Amendment” class in law school.

Anyone who knows Professor Purvis will not begrudge my momentarily bragging about that!

Anyway, the reporter (Dave Maass) sent me copies of the briefs filed in the case, which I read prior to his call.  I also read the Supreme Court case that had figured so prominently in the arguments and decision in the district court on Bagdasarian’s case.  Then Dave and I talked.

The basics of the Bagdasarian case are that he got drunk one night and became embroiled in a political discussion in an Internet chat room.  Alcohol and political discussions never seem to mix all that well.  Adding in an Internet chat room is like dripping a little LSD into your drink.  You’ve got two kinds of “mad” going on here: anger, and mad as in “Mad Hatter.”  People get crazy.

People are less inhibited in electronic communication. From the earliest days of computer communication, researchers have discovered that most people are less inhibited in online communication than when sound is used. The immediacy of online communication encourages people to respond without thinking, and nearly every user of online communication has experienced the desire to write regrettable things.  (Brian K. Reid, “The Church and the internet” (1999) Society of Archbishop Justus.)

‘Tis true.  I myself have had to pull back from writing things that I realize I would never say “IRL.”  (IRL = “In Real Life.”)

Bagdasarian’s bad banter involved making derogatory racist remarks about then-candidate for the Presidency of the United States, Barack Obama.  According to the appellant’s brief in the case:

The one-count indictment specifically and only alleges as follows:

On or about October 22, 2008, within the Southern District of California, defendant WALTER EDWARD BAGDASARIAN knowingly and willfully threatened to kill and inflict bodily harm upon Barack Obama, a major candidate for the office of President of the United States as defined in Title 18, United States Code, Section 3056 (a) (7), by posting on a public website a comment with the title “shoot the nig,”

which read as follows:

country fkd for another 4 years+, what nig has done ANYTHING right???? Long term???? Never in history, except sambos. Fk the niggar, he will have a 50 cal in the head soon.

This act was in violation of Title 18, United States Code, Section 879 (a) (3).

A later superseding indictment is said to have repeated the above, then alleged a separate count that essentially repeated the same thing minus the comment “Fk the niggar, he will have a 50 cal in the head soon.”

I think most ordinary people — or, at least, me — can agree that Bagdasarian’s comment is rather outrageous.  It is clearly racist and demonstrative of a lower life form than I would normally want to refer to as “Homo sapiens.”  The question the law asks — the thing that had to be true in order for him to be convicted — is whether the comment constitutes a “true threat.”

Bagdasarian’s argument was that it is not.  And as much as I detest the comments, I have to agree.  As I told Dave Maass, the comment “shoot the nig” could be considered a grosser form of “fuck him!”  As to the comment about the “50 cal in the head,” the language, on its face, is not a threat: it is at best a statement of belief.  One might ask why Bagdasarian believes what he believes and the answer might be that he believes it because he’s planning to put the 50 cal in the candidate’s head, but the answer could also be that Bagdasarian believes some unspecified person is going to do it.  Bagdasarian could easily have merely been voicing what he hoped would happen.  He never said he was going to do it himself.  At best, on its face, the comment “shoot the nig” is what grammarians would call an imperative. Bagdasarian is possibly urging someone else to do it; that, itself, is not a “true threat.”

Of course, he could also just be an angry blowhard, blowing off smoke in the midst of a political discussion.

Several people in the chat room, so the government argues, took the comments as a threat.  They said that they had, or were going to, report Bagdasarian to the Secret Service.  One of them, a retired Air Force officer, did contact the Secret Service.

At a bench trial, the district court judge repeatedly compared Bagdasarian’s case to a Ninth Circuit Court case involving threats made against then-President Bush.  According to the judge,

We begin with the basics.  The essential elements of the offense of threats against a major candidate for office of president, in violation of Title 18 United States Code 879(a) (3) are, one, the Defendant threatened either in writing or orally to kill or injure a major candidate for the office of president, two, the Defendant intended the statement to be taken as a threat, and, three, under the circumstances in which the threat was made, a reasonable person would foresee that it would be understood by persons hearing or reading it as a serious expression of an intent to kill or injure a major candidate for office of the president, United States v. Gordon, 974 F.3d 1110, Ninth Circuit, 1992.

The Court also notes that in United States v. Romo, 413 F.3d 1044, Ninth Circuit, 2005, the Ninth Circuit noted that it is difficult to imagine a clearer threat than one to put a bullet through the president’s head.  That’s Romo 413 F.3d at 1050. [This is taken from the appellant's opening brief in the Ninth Circuit Court.  Italics and bold-facing were in the original brief, as were the grammatical oddities.]

The italicized, bold-faced statement is what the Romo said.  But even poor readers will note that the question here is whether or not there was a clear threat by Bagdasarian to put a bullet through anyone’s head.  Saying that someone “will” have a bullet in his head soon and saying that the person making the comment is threatening to do that himself are not co-equivalent statements.  If I say “so-and-so will die someday,” there is nothing in the statement in and of itself that indicates I am going to kill so-and-so.  (To anyone out there named “So-and-so”: I am not threatening you.  But given the government’s apparent willingness to take things out of context, I was trying to use language that would, even taken out of context, hopefully not get me into trouble.  If your name is “So-and-so,” please accept my apologies and know that you are safe.  From me, at least.)

Now I know: we live in a different world “post-9/11.”  Constitutional rights, including freedom of speech, mean significantly less — almost nothing, in fact — when compared to what they used to mean.  But the truth of the matter is that sometimes even non-stupid people say stupid things that they later regret.  Sometimes people even make “threats” that they never intend to carry out.

That’s why the requirement is that the statement be a “true” threat in order to justify a conviction.

I also recognize that the old adage “better 10 guilty men go free than one innocent man should be falsely convicted” has been replaced in most judges’ minds by “I’d rather be on the safe side.”  (See Richard A. Gardner, M.D., True and False Accusations of Child Sex Abuse (1992) p. xxxii.)

That’s why I told Dave Maass that I thought the prosecution would win on appeal.

You see, after Bagdasarian’s “threat” was reported to the Secret Service, they went to his home and questioned him.  He admitted making the comments.  He admitted owning weapons.  The agents then obtained a federal search warrant and seized his computers.

On the hard drive of Bagdasarian’s computers, they found a couple of emails to “an associate” which contained further statements like,

Pistol???  Dude, Josh needs to get us one of these, just shoot the nigga’s car and POOF!”

and

Pistol … plink plink plink  Now when you se a 50 cal on a nigga car you get this….

and both emails contained links to pictures and video, with the video apparently [I haven't viewed it] showing what happens to a car shot with a 50 caliber weapon.

The district court, taking everything into consideration, decided that Bagdasarian had made a “true threat.”  Bagdasarian didn’t just make one or two vague comments: he said a couple other things that were stupid, nasty, bigoted and vague as well.  In most American courts these days, a vague statement means whatever the court wants it to mean; four vague statements just cannot be good.

Let me be clear about something: I don’t even have to meet him to know that I do not like Bagdasarian.  I do not approve of his comments.  I think he sounds like the sort of person with whom I’d never want to associate.

But these stupid, ignorant, racist comments do not seem to me to indicate — in and of themselves — that Bagdasarian made a “true threat.”  I’ve heard and seen much worse things than these from police officers talking about private citizens when the police officers were pissed off about something the private citizen had said or done.  I’ve heard police officers tell people, “I’m going to take your fucking head off!” in a tone of voice that almost makes you think they really would do it.

But I don’t believe for a minute that the police officers I’ve heard saying those things really would.

Nor do I believe Bagdasarian, who appears to me to be one pissed-off racist loser, would have tried to kill Obama.  He certainly did not say that he would.  And there’s nothing to indicate that he took any kind of overt step towards doing it.

Nor do I believe that the district court judge is fearful that this would happen.  At the end of the case, the judge sentenced Bagdasarian to credit for time served and probation.  He won’t spend a single day in jail beyond what he already served when he was first arrested.  So, in that sense, (surprise!) the judge is a hypocrite.  He doesn’t consider Bagdasarian enough of a threat to now-President Obama to sentence him to any custody time, but he does consider his idiotic blowing-off-of-steam to be a “true threat.”

Regardless of the above, I told the San Diego CityBeat that I thought the conviction will survive the appeal; the prosecution will win.

Why?  Well, there are at least three reasons.

The first is that judges no longer care about the United States Constitution.  Sure, they pay it lip service.  But their opinions on it always start out by saying, “The Constitution says,” then quoting the relevant passage and explaining why it never applies doesn’t apply in the case before them.

The second is that the appellate court is likely to give great deference to the ruling of the lower court: that court, as the finder of facts, decided, based on a totality of evidence before it, that Bagdasarian “knowingly and willfully threatened to kill and inflict bodily harm….”  The question whether there was sufficient evidence for a rational trier of fact to decide this is what the appeal raises.  And I doubt the appellate court is going to say that the lower court judge is irrational, notwithstanding the fact that probably not a few people — me, at least — would have found differently.

And the third reason?  Well, Barack Obama is no longer a candidate for President; he’s made history: he is the President.

Nobody badmouths the President.

Shut up!  I don’t like what you’re saying!

Increasingly, this is the approach Americans — Americans! — are taking to deal with speech they don’t like.  Whether this involves the hateful speech of would-be dictators, the words of electronic schoolyard bullies, or just folks with whom we disagree on government policy, the New American Way is to stop them from talking.  Extra points if we can protect our own speech while squelching theirs. 

Freedom of speech, though, is more than just the law.  It’s a good idea.  It’s a good idea because it’s a necessary component for a vibrant society. 

Perhaps this is one reason it was the First Amendment to the United States Constitution and the one most Americans can remember as actually being part of that Constitution.  Even though most Americans don’t know a damn thing about what the Constitution really does, means, or stands for, they know “freedom of speech is in the Constitution!” 

But fascism is the very antithesis of a vibrant society.  Perhaps this is also why when fascism rears its ugly head, controlling speech is the first thing to suffer.  First, you try to “work with” those people speaking in ways you don’t like:

It seemed as though a large number of people were zealous to work with and through the editors these days, thought Doremus.  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 165, originally published in 1935.)

But if Fox News isn’t enough, or if people insist on routing speech through non-Fox venues, or if you’re just impatient, then you take another approach. 

The mob acted then, swift and together, on no more of an incitement than an unknown M.M.’s shout: “Ought to burn the place, lynch the whole bunch of traitors!”  They were running across the street, into the front office.  He could hear a sound of smashing, and his fright was gone in protective fury.  He galloped down the wide stairs, and from five steps above the front office looked on the mob, equipped with axes and brush hooks grabbed from in front of Pridewell’s near-by hardware store, slashing at the counter facing the front door, breaking the glass case….

Shad roared on: We’re not going to bust up this place.  Jessup sure deserves a lynching, but we got orders from Hanover — the Corpos are going to take over this [newspaper] plant and use it.  (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 183, originally published in 1935.)

Restricting speech is increasingly the choice of Americans, whether officials or not, because reasoning with people is more difficult. 

It became easier to answer malcontents with a cuff from a Minute Man than by repetitious statements from Washington. (Sinclair Lewis, It Can’t Happen Here (2005 ed.) p. 157, originally published in 1935.)

And it’s easier to suspend children for bullying others, whether online or in person, than to socialize them. 

The case that caused me to write this article shows that the government barely understands why this is wrong.  The students involved show every sign of being at risk to become future criminals.  But then, what insecure, sniping group of bullies, cyber or otherwise, doesn’t? 

The judge forced to rule on the lawsuit filed after the school was sued for expelling one of them got that much.

“The fear that students would ‘gossip’ or ‘pass notes’ in class simply does not rise to the level of a substantial disruption,” he wrote.  (Victoria Kim, “For students, a right to be mean online?” (December 13, 2009) The Los Angeles Times.)

The court appears to have missed the mark, though, in another aspect of the case:

Judge Wilson ruled that school officials had the authority to investigate the matter because the student told several of her classmates to watch the video, and it was foreseeable the video, or talk of it, would quickly make its way to the campus of Beverly Vista School. The video was “designed in such a manner to reach many persons at once,” making it different from earlier cases involving school newspapers or a violent drawing, he found. (Kims, supra.) 

So the number of people potentially hearing the speech matters?  That’s not a very good standard to use!  Who decides the number?  Do we need to rewrite the First Amendment?

Congress shall make no law…abridging the freedom of speech, or of the press…unless the speakers and writers become too popular and too many people hear or read what they have to say….

The way to combat speech is with speech.  To beat out bad ideas, teach better ideas.  Yes, educating people is harder — although it is normally easier to educate children than adults.  And I’m not talking about brainwashing them with any particular political doctrine, either.  It can be as simple as teaching empathy and understanding.  These skills are necessary precursors to any healthy society. 

Freedom of speech, as I said above, is a necessary precursor to a vibrant society, but it works — when it works — because we know how to be empathetic, we know how to understand, and we know how to reason with one another. 

And it would do all of us well to realize that the freedom to speak is perfectly complemented by a willingness to listen.  For if no one is listening, then what really does it matter if we’re free to speak?

Whenever I’m irritated by what others say, I have a “slogan” I repeat to myself:

The First Amendment: It’s not just the Law; it’s a Great Idea.

Feel free to adopt it for yourself.

I could only think of one response….

Well, OF COURSE the Internet should be regulated.  Isn’t that how America works these days?  How are we ever going to be a complete police state if we don’t start regulating speech?

Whenever someone doesn’t like something and they want to government to step in and regulate it notwithstanding the Constitution, they point out how things are different today to when the Founders first wrote the Constitution.  Because things are different, governmental authority needs to be different.  Since at least the 1990s, the best way to show this is to point out that today, we have the Internet.  The Internet is totally different from a broadside, or from rampant unsupportable rumors and hearsay burning through a town, province, or state such as existed…well, everywhere…in the late 1700s.

After all, defaming someone in a broadside, or starting a defamatory rumor that turned the entire town against them…well, that could only put someone out of business.

TODAY, we have the Internet!  A defamatory rumor on the Internet could put someone out of business!

See how different things are today?!

What is not different is the fascistic drive within many of us that makes it impossible to allow for the kind of freedom our Founders envisioned when they formulated the Constitution.  What is not different is the misguided specks of humanity who are incapable of recognizing patterns from the past and think that every “new” thing they don’t like is so totally new that it requires a complete re-casting of our societal mores and law.

I see no hope for the future of our people if they are dependent on frivolous youth of today, for certainly all youth are reckless beyond words… When I was young, we were taught to be discreet and respectful of elders, but the present youth are exceedingly wise [disrespectful] and impatient of restraint” (Hesiod, 8th century BCE)

Children nowadays love luxury, have bad manners, contempt for authority, disrespect for their elders. (attributed to Socrates, 5th century BCE)

What has been will be again,
What has been done will be done again;
There is nothing new under the sun. (Ecclesiastes 1:9 (NIV), probably 3rd century BCE)

Someone did something I didn’t like and it’s different from when other people in the past did things someone didn’t like. They did it using the Internet! The Constitution doesn’t apply! We need a new law! (about a brazilian people — with the same level of intellect as the person who allegedly thought “brazilian” was a really large number — since at least the rise of the Internet)

And several more brazilian before the Internet who thought the Constitution stood in the way of their being able to stifle speech they didn’t like.

The Internet may be bigger, but apparently our brains are getting smaller.

Uh-oh! Did I just defame an entire species?

Trying to find you a link to the ABAJournal website, though, I ran across this interesting article concerning a law school graduate, Frank J. Lawrence, Jr., who was denied a license to practice law because he said mean things to the people responsible for approving his application.

For the moment, let’s sidestep the possibility that the law school graduate in question probably should be denied a license on the basis of stupidity. I mean, talk about biting the hand that feeds you! It just doesn’t make sense to badmouth the people who hold your career in their hands while you’re asking permission to work in your chosen profession.²

At any rate, the Michigan State Bar has determined that people who wish to become attorneys are not entitled to their own opinions, or, more accurately, they’re not entitled to express them. At least not to the State Bar.

There was a time, or so I’ve heard, when intelligent human beings believed “the more speech, the better.” This quaint idea has sometimes been lauded as necessary to the marketplace of ideas. We thought such things because, for example, the more ideas in the marketplace, the greater the likelihood of improving our lives. And freedom of speech was at least partly written into the United States Constitution because we recognized that some ideas might be unpopular. Rather than risk damage to the marketplace, our nation’s Founders decided on the liberal — yep, it was liberal and revolutionary — idea of protecting speech.

As long as there have been marketplaces, however, there have been robbers, thieves, or just generally hateful people who have wanted to gain a monopoly over the market.

This is not new. As the Wikipedia article linked above notes, “The Socratic Method is the pedagogical embodiment of the ‘Marketplace of Ideas.’” And let’s not forget what happened to Socrates.³

Fortunately — for Lawrence, at least — the Michigan State Bar didn’t adopt the Athenian Method. Instead, they stated that,

We are concerned about providing a law license to someone who, even before he has handled his first case as a member of the bar, has effectively written off such a huge component of the justice system.⁴

Naturally, “someone who…has effectively written off such a huge component of the justice system” cannot have the requisite character to work within such a system to try to change what he feels is wrong. Isn’t the rule right-thinking⁵ people follow these days something like, “America, Love It Or Leave It”? If you think there’s something wrong with the justice system, then obviously you can’t join that system and try to work within it to correct those problems. Your belief that the system has problems means exactly one thing: You don’t belong.⁶

Both the ABAJournal article and the blog “How Appealing,” which gets the final word in the ABAJournal article, gave me the impression that the Sixth Circuit Court of Appeals for the United States approved of the denial of the license. Maybe that’s not what those articles meant to do, but that’s how I read them. Actually, though (in case I’m not the only one who got that impression), the Sixth Circuit threw out the suit because it violated the so-called Rooker-Feldman doctrine.

Without giving a detailed history of the doctrine, suffice it to say that,

Rooker-Feldman is shorthand for the proposition that lower federal courts possess no power whatever to sit in direct review of state court decisions.⁷

If the attorneys for Lawrence had thought ahead to the possibility that Lawrence had correctly assessed the problem with the Michigan courts, they might have taken another approach. The first option for avoiding a Rooker-Feldman challenge was probably not available, but at least one other was.⁸

Even after the Michigan courts decided that freedom of speech is denied to Bar applicants, Lawrence’s attorneys could have gone to federal court on different grounds which would have prevented the Sixth from tossing the suit. The United States District Court for the Eastern District of Pennsylvania noted that:

As the [U.S. Supreme] Court explained in Exxon Mobil, a district court is not divested of subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court.⁹

What’s needed then is an approach that does not require the District Court to reconsider the state court judgement.¹⁰ But, again, this option wasn’t really available, because the denial of admission to the Michigan State Bar based upon statements Lawrence made to evaluators was itself the problem; there was no reliance upon an independent rule capable of a constitutional challenge.

The one and only real avenue of attack here was that Lawrence could simply have appealed the state court decision to the United States Supreme Court.¹¹ For whatever reason, that was not done.

Maybe next time.

Until then, any applicants to the Michigan State Bar had best take heed. In Michigan, at least, those who want to be attorneys may argue for the free speech rights of others. They just can’t exercise those rights themselves.

1. I promise to get to that another day.
2. I’m sure somewhere a judge is breathing a sigh of relief that the Founding Fathers forgot to include a “freedom to work in the field of your choice” clause into the First Amendment. That’s one less fundamental right we have to find our way around.
3. Hint: He was killed for saying things the political leaders of Athens did not like.
4. Lawrence v. Welch, 2008 U.S. App. LEXIS 11768 (6th Cir. Mich. 2008) at 4; Howard J. Bashman, How Appealing (June 3, 2008, 10:34 a.m.). For those who don’t have access to Lexis, you can find this opinion at http://www.ca6.uscourts.gov/opinions.pdf/08a0207p-06.pdf, at least as of this writing.
5. Pun intended.
6. Isn’t this the rationale behind the President’s desire for the authority to declare American citizens to be “enemy combatants” who are not entitled to constitutional protections?
7. This quote is taken from Headnote 7 of Mangan v. Brierre, 2007 U.S. Dist. LEXIS 9390 (E.D. Pa. Feb. 9, 2007) on the Lexis research site. For those without access to Lexis, the Mangan v. Brierre opinion, without the Lexis headnotes, etc., is available at http://vlex.com/vid/35251327, or it was as of the writing of this article. For more information on the Rooker-Feldman doctrine, see the relevant Wikipedia articles. You can, of course, do the even deeper research of reading the cases themselves, if you wish.
8. The first option would have to be a direct constitutional challenge to some rule the Bar followed in making their decision. See D.C. Court of Appeals v. Feldman, 460 U.S. 462, 483 (U.S. 1983). In other words, instead of challenging a “final judgment of a state court in judicial proceedings,” they would have to launch a direct attack on the constitutionality of some rule the Bar and/or the state court had used in making their decision. Id. at 482-483. The problem here, of course, was that it was an arbitrary decision of the people with whom Lawrence spoke, and not some policy or rule, that caused the problem. Thus, the only thing open to attack was either their decision, or the more general rule that authorized them to make decisions in the first place. It is highly unlikely that any court would determine that a State Bar cannot make decisions about who may be admitted. Remember, the Founders did not foresee the need for an amendment guaranteeing “freedom to work in the field of your choice.”
9. Mangan v. Brierre, supra, at 17.
10. See Mangan v. Brierre, supra, at 17.
11. Feldman, supra, 460 U.S. at 482.