The Ninth Circuit Court of Appeals has reversed the conviction of a Southern California man who drunkenly posted a racist Internet chat room rant against Barack Obama during the 2008 presidential campaign. He was convicted in 2009 of the federal offense of threatening violent crimes against persons protected by the Secret Service. He was sentenced to time served along with two years’ supervised release, which included a prohibition against possessing firearms.

The man appealed his conviction on the theory that the rant was protected speech as defined by the First Amendment to the U.S. Constitution, and a panel of the Ninth Circuit agreed.

While agreeing that his racist tirade was “particularly repugnant” because it appeared to endorse violent crimes against then-candidate Obama, the Court said that no reasonable person would have taken the threats seriously considering that they were made in an online chat room at 1:00 a.m.

According to the story in the Los Angeles Times, another chat room participant was concerned enough to notify law enforcement, which led to an investigation by the Secret Service. He was initially considered for even more serious charges that could have landed him in federal prison for ten years. Ultimately, he was charged under the federal law known as 18 U.S.C. § 879(a)(3) (threats against…persons protected by the Secret Service), which carries a possible penalty of three years in prison and a $1,000 fine.

Was rant a credible threat of violence or merely a baseless prediction of likely harm?

In one of the comments the man posted in the chat room, he said that Obama “will have a 50 cal in the head soon,” along with an exhortation that someone should “shoot the [racist slur].”

The prosecution had pointed out that the man did own a .50-caliber gun, which made it seem that he meant the threat literally. The man’s criminal defense lawyer insisted that such language only constituted “a prediction that conveyed no explicit or implicit threat on the part of [the defendant] that he himself would kill or injure Obama.”

Ultimately, the Ninth Circuit decided there was insufficient evidence to believe the threat was to be taken seriously.

“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 [the defendant’s] commandment,” wrote Judge Stephen Reinhardt for the appeals panel. “There is nevertheless insufficient evidence that either statement constituted a threat or would be construed by a reasonable person as a genuine threat by [the defendant] against Obama.”

People make violent threats all the time without really meaning them. We make light jokes like “I’m going to kill you for that,” or we threaten violence in the heat of an argument but do not truly mean it. The vast majority of the time, these threats are made in person and even the person we say them to doesn’t believe they are in any danger. It’s much harder to gauge what is truly intended by such statements when they are made in writing, but they can have much the same meaning.

While it is not appropriate to threaten violence against anyone, criminal charges are not the best response when it is unclear the threat was real.

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