Trump’s Gory Head – Did Kathy Griffin Commit a Crime?

Kathy Griffin’s decision to appear in a controversial photograph holding what looks like Donald Trump’s bloody, decapitated head has been nearly universally denounced by both sides of the political spectrum. Media outlets, politicians, and pundits have been quick to: 1) Talk about it, thereby amplifying its effect; and 2) Denounce it as having gone too far. It is sickening, has no place in political discourse, and hopefully will not be repeated. Many commentators and ordinary people on social media have taken the conversation further, calling for Griffin’s arrest. But did she commit a crime?

Are Threats Against the President a Crime?

Yes. If they qualify as threats and are not protected by the First Amendment. 18 U.S.C. § 871 makes it a crime that carries up to five years in prison to threaten the president, president-elect, vice-president, or any person in line to become the president of the United States:

(a) Whoever knowingly and willfully deposits for conveyance in the mail or for a delivery from any post office or by any letter carrier any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States, the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both. (emphasis added)

First Amendment concerns aside, the photograph does not expressly threaten anyone, and, for what it’s worth, it was accompanied by Griffin’s statement: “OBVIOUSLY, I do not condone ANY violence by my fans or others to anyone, ever!” Griffin’s photograph does not go as far as the statements made in Watts v. U.S., where a protester was convicted of threatening the president for the following statement:

“They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. 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 U.S. Supreme Court overturned the conviction and held that it was not a “true threat” because it was conditional and because it was nothing more than “a kind of very crude offensive method of stating a political opposition to the President.”

…the statute initially requires the Government to prove a true “threat.” We do not believe that the kind of political hyperbole indulged in by petitioner fits within that statutory term. For we must interpret the language Congress chose “against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58 (1966), is often vituperative, abusive, and inexact. We agree with petitioner that his only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise.

Griffin’s photograph is not a crime any more than Watt’s statements above. There has been an explosion of violent-themed imagery directed at the president and presidential condidates from both sides of the political spectrum in recent years, none of which were prosecuted as crimes, including:

  • Ted Nugent’s threats to kill Barack Obama and Hillary Clinton. Nugent stood on stage, wearing camouflage hunting gear and holding two machine guns while yelling: “Obama, he’s a piece of shit. I told him to suck on my machine gun. Hey Hillary, you might want to ride one of these into the sunset, you worthless bitch.”
  • A mayor of a town in Pennsylvania posted a picture of a noose with the caption, “Barry, this rope is for you…” He was not prosecuted, and when he was asked to resign over the threatening photo and numerous other racist memes that he was posting he claimed that he was the victim of a “witch hunt.”
  • Snoop Dogg released a video in which he shoots and kills a clown Trump.

The First Amendment Protects Both Art and Political Statements

Clearly the photograph was meant as an ugly, crude, attention-grabbing political statement and not a real threat to the president’s person. There is a long line of U.S. Supreme Court cases that define the parameters of First Amendment protection. The First Amendment protects art. Griffin’s photograph was not beautiful or artistic by my standards, but I don’t think there is any legitimate argument that photography is not a form of art. The First Amendment also protects political statements:

  • Cohen v. California held that a defendant could not be convicted of disorderly conduct for wearing a jacket that said “Fuck the Draft.”
  • Texas v. Johnson and U.S. v. Eichman separately held that burning a U.S. flag was protected political speech under the First Amendment.
  • Virginia v. Black held that cross-burning was protected speech under the First Amendment.

The calls for Griffin to be arrested are unfounded and there is no crime here. I will hold my nose and tolerate Griffin’s agitation just as I hold my nose and tolerate white nationalists burning crosses as they march with swastikas on their arms. When we arrest the Nazi agitator or the liberal agitator, we are closing the door to our own freedom to express our own views and the Supreme Court recognized this long ago. I’ll leave you with a quote about censorship that I found on an ACLU webpage, Freedom of Expression in the Arts and Entertainment:

The answer is simple, and timeless: a free society is based on the principle that each and every individual has the right to decide what art or entertainment he or she wants — or does not want — to receive or create. Once you allow the government to censor someone else, you cede to it the the power to censor you, or something you like. Censorship is like poison gas: a powerful weapon that can harm you when the wind shifts.

Freedom of expression for ourselves requires freedom of expression for others. It is at the very heart of our democracy.

 

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