Is Threatening to Kill the President Still Illegal?

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On Tuesday, the Ninth Circuit Court of Appeals ruled that comments which encouraged the assassination of President Obama and predicted that he would have “a .50 cal in the head soon” while using racial slurs against him were protected by the First Amendment. While the decision seems to be a plausible reading of existing precedents, a former Secret Service agent contacted by FrumForum thought that it exposed the president to unacceptable risk.

“It was a bad decision,” said Joseph Petro, former agent and co-author of Standing Next to History: An Agent's Life Inside the Secret Service. He argued that permitting such remarks “creates more potential for someone to do something” dangerous. Petro claimed that, in his experience, it is normal to treat such comments as threats, saying “I’ve seen this before … Back in the Nixon days, there was a guy who put up a billboard in New Jersey saying ‘Kill Nixon.’ He was arrested and the billboard was taken down.”

“We’re all in favor of constitutional rights,” he added, but “there should be some … sensitivity shown for the unique risk that the President faces.” The former agent suggested that the ruling was part of a pattern of recent events that did not show a proper awareness of the dangers presidents face comparing it to incidents in the past two years in which protesters brought weapons to presidential speeches. Petro also noted that the fact that the accused, Walter Bagdasarian, predicted that Obama would be shot with a .50 caliber rifle while he owned such a gun made the threatening nature of the comments especially clear.

However, two legal experts contacted by FrumForum both agreed with the majority’s central claim that Bagdasarian did not express an intention to personally kill Obama because he merely predicted the president’s killing and encouraged others to shoot him. “The speaker did not tell Obama that if he didn't do something he would shoot him,” said Geoffrey Stone, a law professor at the University of Chicago who has written extensively on First Amendment issues. “The speech may have been repugnant and ugly … but it did not constitute a threat within the meaning of the First Amendment.”

Eugene Volokh, a free-speech law expert at UCLA Law School who has written about the case recently, took a similar view. He cited the Supreme Court’s ruling in the 1969 case Watts v. U.S., which found that an anti-draft protester’s remark that “If they ever make me carry a rifle the first man I want to get in my sights is L. B. J” was constitutionally protected. “Statements about how they wish someone would kill him … [while] they are not to be praised, are not uncommon in these kinds of debates,” he said.

The two disagreed, however, over whether the case would eventually be decided by the Supreme Court “The Court has shown a willingness to decide these types of cases,” Stone said. He also noted that the “three cases the Court has decided [in its most recent term] that pose somewhat similar issues  have come out in favor of the First Amendment [and against restrictions on speech].” However, Volokh noted that the Ninth Circuit Court might decide to rehear the case due to its importance and that the federal government, “which is very picky about which cases it asks the Supreme Court to hear,” might not appeal the ruling.