This Note argues that the Ninth Circuit found the proper balance between protecting speech and the President by interpreting the true-threats doctrine and the construction of presidential-threat statutes to require a subjective intent to threaten, in addition to one of the traditional objective standards for true threats. The application of a solely objective standard to threats against the President leads to unsettling results that punish speech without need. Harmless but misguided individuals have been held criminally responsible for ludicrous statements based on the sensitivities of the fabled “reasonable person,” regardless of the speakers’ actual motivations for their statements. More importantly, this nation’s historic dedication to free expression demands a policy under which citizens need not whisper when referring to the Chief Executive they elected. Even when the language used in reference to the President is crude, violent or racist, it must nevertheless be allowed into the marketplace of ideas. As Noam Chomsky said, “If we don’t believe in free expression for people we despise, we don’t believe in it at all.”
In Part I, this Note introduces the primary presidential-threat statutes and explains why Presidents and presidential candidates should be treated the same for the purposes of true-threat jurisprudence. Part II traces the history of the true-threats doctrine and introduces the relevant tests of intent developed among the federal courts for evaluating presidential true threats. Part III discusses Bagdasarian, its procedural history, and the Ninth Circuit’s interpretation and application of the true-threats doctrine. Part IV explains the shortcomings of using only an objective test for measuring true threats. Next, Part V argues the strengths of adding a subjective-intent element to the doctrine, and the special status of the President that necessitates its inclusion. Finally, this Note concludes by arguing that when the subject of a threat is the President or a candidate for the office, despite precedent to the contrary, the Ninth Circuit in United States v. Bagdasarian correctly interpreted the true-threat doctrine.
Kyle A. Mabe,
Long Live the King: United States v. Bagdasarian and the Subjective-Intent Standard for Presidential "True-Threat" Jurisprudence, 43 Golden Gate U. L. Rev. 51