Bagdasarian

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge WARDLAW.

OPINION

The election of our first black President produced a campaign with vitriolic personal attacks and, ultimately, sentiments of national pride and good will. The latter was short-lived on the part of some, politicians and non-politicians alike, and the vi *1114 triol continued as President Obama’s term of office commenced. To those familiar with American political history, none of this should.have come as a surprise. Although Justice Scalia writes that “[o]bservers of the past few national elections have expressed concern about the increase of character assassination ... engaged in by political candidates and their supporters,” 1 mudslinging has long been a staple of U.S. presidential elections. Justice Scalia, though analyzing a current issue, uncharacteristically overlooked the experience of our Founding Fathers. In the country’s first contested presidential election of 1800, supporters of Thomas Jefferson claimed that incumbent John Adams wanted to marry off his son to the daughter of King George III to create an American dynasty under British rule; Adams supporters called Jefferson “a…

concurring in part, and dissenting in part:

I concur fully with the majority’s analysis of the law of “true threats.” The First Amendment prohibits the criminalization of pure speech unless the government proves that the speaker specifically intended to threaten. Thus, in every threats case the Constitution requires that the subjective test is met. Virginia v. Black, 538 U.S. 343 , 123 S.Ct. 1536 , 155 L.Ed.2d 535 (2003). In this case, the statute at issue, 18 U.S.C. § 879 (a)(3), also requires that a reasonable person would foresee that his statement would be perceived as a threat to harm a presidential candidate. Because there is sufficient evidence supporting a finding of objective intent, Jackson v. Virginia, 443 U.S. 307, 319 , 99 S.Ct. 2781 , 61 L.Ed.2d 560 (1979), and because even under the heightened standard of review that we apply to constitutional facts, Planned Parenthood of the Columbia/Willamette, Inc. v. Am. Coal. of Life Activists, 290 F.3d 1058 , 1070 (9th Cir.2002) (en banc), the subjective intent requirement is also met, I conclude there is sufficient evidence to find Mr. Bagdasarian guilty of threatening harm against then-presidential candidate Barack…

Ezekiel E. Cortez (argued), San Diego, CA, for the defendant-appellant.

Kyle W. Hoffman, Assistant United States Attorney (argued), Karen P. Hewitt, United States Attorney, and Bruce R. Castetter, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Before: ALEX KOZINSKI, Chief Judge, STEPHEN REINHARDT and KIM McLANE WARDLAW, Circuit Judges.

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge WARDLAW.

REINHARDT, Circuit Judge:

The election of our first black President produced a campaign with vitriolic personal attacks and, ultimately, sentiments of national pride and good will. The latter was short-lived on the part of some, politicians and non-politicians alike, and the vitriol continued as President Obama's term of office commenced. To those familiar with American political history, none of this should have come as a surprise. Although Justice Scalia writes that "[o]bservers of the past few national elections have expressed concern about the increase of character assassination ... engaged in by political candidates and their supporters," [1] mudslinging has long been a staple of U.S. presidential elections. Justice Scalia,…