A Southern California man was wrongly convicted of online threats against Barack Obama two weeks before Obama was elected president in November 2008, a divided federal appeals court ruled Tuesday.

"Re: Obama fk the niggar, he will have a 50 cal in the head soon," read one of the messages posted on the Yahoo finance site by Walter Bagdasarian.

About 20 minutes later, Bagdasarian posted another statement after 1 a.m. on Oct. 22. "Shoot the nig country fkd for another 4 years+, what nig has done ANYTHING right???? long term???? never in history, except sambos."

After Secret Service agents traced the remarks to him when a message board member tipped them off, Bagdasarian was found guilty of two counts of criminal threats to a presidential candidate. The La Mesa man was sentenced to two months in a halfway house. He appealed.

The 9th U.S. Circuit Court of Appeals in San Francisco concluded that Bagdasarian's statements were "particularly repugnant" because they directly encourage violence. "We nevertheless hold that neither of them constitutes an offense within the meaning of the threat statute under which Bagdasarian was convicted" (.pdf), the appeals court wrote.

The three-judge appellate panel, ruling 2-1, said Bagdasarian's speech was lawful, perhaps because of a loophole in the law.

"The evidence is not sufficient to support a conclusion that a reasonable person who read the postings within or without the relevant context would have understood either to mean that Bagdasarian threatened to injure or kill the presidential candidate," Judge Stephen Reinhardt wrote for the majority.

Reinhardt noted, however, that the statements "intended to encourage others to take violent action."

"The threat statute, however, does not criminalize predictions or exhortations to others to injure or kill the president," Reinhardt wrote.

Reinhardt added:

There are many unstable individuals in this nation to whom assault weapons and other firearms are readily available, some of whom might believe that they were doing the nation a service were they to follow Bagdasarian's commandment. There is nevertheless insufficient evidence that either statement constituted a threat or would be construed by a reasonable person as a genuine threat by Bagdasarian against Obama.

The government argued Bagdasarian had a .50-caliber weapon at home, the same model he listed on the message board. "Nobody who read the message board postings, however, knew that he had a .50-caliber gun," Reinhardt wrote.

In dissent, Judge Kim McClane Wardlaw wrote that "history undermines the conclusion that a reasonable person would interpret Mr. Bagdasarian's '50 cal in the head' comment as a joke or mere political rhetoric."

Reading the two statements charged in the indictment in isolation, the majority dissects them to conclude that they were not even threats. It fails to consider the ominous backdrop of America’s history of racial violence, the uniquely racial and violent undercurrents of the 2008 presidential election, the entirety of Mr. Bagdasarian’s postings on October 22, two weeks before the 2008 election, and the listeners who not only perceived the posts as threatening when they were made, but who acted on that perception.

Photo: Barack Obama's photostream/Flickr

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