March 18, 2017 – Just recently President Trump was upset that rapper, Snoop Dogg published a video with a male mannequin referred to in the video as Ronald Klump sporting a clown face, wearing a blonde wig, dressed in a suit and tie, and smoking marijuana,–obviously to mock Mr. Trump and present him in an unflattering light. In the video “Klump” was the subject of choice words and at the end Snoop Dogg pointed a toy clown gun at the figure and a flag unfurled that said “bang“ which is later depicted wearing chains. After seeing this Trump put out a tweet saying:
Can you imagine what the outcry would be if @SnoopDogg, failing career and all, had aimed and fired the gun at President Obama? Jail time!
— Donald J. Trump (@realDonaldTrump) March 15, 2017
Trump’s Tweet, if Rapper Had Pointed a Toy Gun at a Clown of Obama in his Video–He’d be in Jail…Yet, President’s Assertion Does Not Make it So!
On this particular point, President Trump is very wrong about threats to Obama. Back in July of 2011, a case of similar import made its way to the 9th Circuit Court of Appeals–that case was US v. Bagdasarian. In that case, a California man, Walter Bagdasarian, made some not so subtle pronouncements as to his feelings about then Candidate Obama in 2008–placing disdainful email postings on a Yahoo bulletin board–remarks negatively referring to Mr. Obama’s race, and making assertive statements about him being shot and killed. The anonymous poster, who secret service later traced to the home computer of a Mr. Bagdasarian in California, had made several postings on at least one message board, and sent emails that by the choice of words and tone, would most certainly be considered by most viewers as very disturbing.
Mr. Bagdasarian’s postings were full of expletives, racial intonations, words not suitable for reprint–including statements encouraging the shooting of then Candidate Obama and soon to be President-Elect. Statements made to include: Obama “will have a 50 cal in his head soon.” After secret service received notice of the anonymous postings, they traced them to the home computer of Bagdasarian. Upon visiting his home, they found numerous weapons–including a 50 caliber gun in his possession.
Accordingly, Mr. Bagdasarian was charged and the federal district court convicted him under 18 U.S.C. § 879(a)(3)–the federal statute that makes it a felony to threaten to kill or do bodily harm to a major presidential candidate. But on Appeal, the 9th Circuit reversed. After reviewing all the evidence and the two statements, one of racial disparagement and one stating that Mr. Obama “will have a 50 cal in the head soon,”– yet, the 9th Circuit Court of Appeals stated in their opinion: “We nevertheless hold that neither of them [statements of racial epithet or the 50 cal in the head] constitutes an offense within the meaning of the threat statute under which Bagdasarian was convicted.” It could be construed, at least at his initial federal district court trial, that law enforcement and the District Court inferred that Mr. Bagdasarian’s possession of a 50 cal gun and postings was evidence, without more–that he intended to carry out the deed himself.
Why did the 9th Circuit Court of Appeals Reverse a Conviction of a Threat Against a Presidential Candidate?
The Appeals Court interpreted the statute under which Bagdasarian was convicted, 18 U.S.C. § 879(a)(3), a statute which “makes it a crime to “knowingly and willfully threaten[ ] to kill, kidnap, or inflict bodily harm upon . . . a major candidate for the office of President or Vice President…” to understand his conviction, but at the same time the court looked at defined juridical boundaries–to determine what speech is protected speech, and that “which makes criminal a form of pure speech,” which the court found “must be interpreted with the commands of the First Amendment clearly in mind.”
In discerning that there is a First Amendment right to free speech here, the 9th Circuit looked to the US Supreme Court case of Watts v.United States (1969) for clarification. In Watts, a Vietnam war protestor was at a public rally and stated in his political speech that, “If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.” “They are not going to make me kill my black brothers.” The protestor making the statement was initially found guilty of a felony, accused of “knowingly and willfully threatening the President.” In fact, in 1968, the United States Court of Appeals for the District of Columbia Circuit affirmed by a two-to-one vote. But the US Supreme Court reversed. They held that the statement made by the objector (Watts), did not prove to be a “true threat.“ In doing so, the Supreme Court delineated what “speech” was to be considered a true threat. As a result, the Supreme Court hearing Watts held, “We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term.” What the Supreme Court did in Watts, is they differentiated political hyperbole from true attacks upon the president.
So What Is Considered to be a True Threat?
To determine what constitutes a “True Threat” the 9th Circuit hearing Bagdasarian must look to the US Supreme Court holding in Virginia v. Black (2003). Under that case, the US Supreme Court held, under the First Amendment the State can punish threatening expression, but only if the “speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” After reviewing the evidence, the 9th Circuit reversed Bagdasarian’s conviction because he had done nothing more than post words. He had no particularized plan, had made no attempt to gain access to the president, and even though his words could be seen as insightful, and the court referred to him as a rather “unpleasant fellow”–there was no evidence of any imminent action by him apart from his posting extremely unpleasant and caustic words, and having in his possession a 50 caliber firearm.
So What Separates a “True Threat” From “Protected Speech”?
According to the Court hearing the Bagdasarian case, the court looked to determine what speech is considered to be “true threats.” Although the case law provided no definitive roadmap, the Supreme Court case of Brandenburg v Ohio (1969) provided the “imminency of lawless action” standard to be applied as to what constitutes a “true threat.”
Looking at Bagdasarian where he had a real 50 caliber gun, posted racial epithets about Obama, and and posted actual statements about then Candidate Obama being shot–he was acquitted because the court found no imminence of lawless action, only words, in fact, Mr. Bagdasarian admitted he was drunk during some of his postings, although not during others. Yet the court ruled his actions did not constitute a “true threat”–which if found by the Court, would remove his First Amendment protection of Freedom of Speech, and would have upheld his federal district court conviction.
Snoop Dogg Not in the Dog House, His Video Gets First Amendment Protection
With this in mind, Donald Trump has no basis to make a claim that if Snoop Dogg had made the comment regarding Obama that Snoop would be in jail when Snoop Dogg made an objectively verifiable video of a clown matching Mr. Trump’s description with a toy gun that unfurled with the words “boom” written on it. As Snoop Dogg’s video has obvious entertainment value, whether one likes it or not, it is still protected speech, as there was certainly no imminent threat posed by Snoop Dogg to the president by engaging in hyperbole, sarcasm or jest–even if the message appeared to be suggestive. If all speech that mocked or was unflattering lost First Amendment protection, we would have no Saturday night or evening comedy programs that mocked or poorly depicting our elected officials. Without more, the statements by Donald Trump that Snoop Dogg would be in jail if he did his video based upon Obama is clearly wrong, and not in the spirit of First Amendment freedom of speech and our Constitution.