Kathy Griffin's Legal Troubles: Did She Break The Law?

In 2017, comedian Kathy Griffin sparked outrage when she posted a photo of herself holding a fake, bloody head resembling then-President Donald Trump. While many called for her arrest, others questioned whether her actions constituted a crime. According to the First Amendment, symbolic speech and expressive conduct are protected, but there are limitations, such as obscenity or inciting violence. While Griffin's photo was deemed in poor taste, it did not directly threaten the president or urge others to harm him, and was thus protected as free speech under the First Amendment.

Did Kathy Griffin's photo of a decapitated Trump constitute a threat?

In May 2017, comedian Kathy Griffin posted a video of herself holding a mask styled to look like the severed, bloody head of then US President Donald Trump. The video was from a photoshoot with photographer Tyler Shields, who is known for producing shocking imagery.

The image sparked outrage across the political spectrum, with many calling for the Secret Service to arrest Griffin for threatening the president. While Griffin herself said she crossed the line and apologised for the image, the photo did not constitute a threat to the president.

Federal law states that it is a felony to threaten the president, and that threats "knowingly and willfully" made against the president are a class E felony. However, in Griffin's case, the photo is protected as free speech under the First Amendment. While the image may be considered offensive and in poor taste, it did not directly threaten the president or urge others to harm him. According to Stanford University law professor Nathaniel Persily, the photograph is an example of "crude political hyperbole" and is protected by the First Amendment.

Furthermore, the Supreme Court has ruled that the First Amendment protects not only written and spoken words but also symbolic speech and expressive conduct, such as burning the flag to protest the actions of the US government. While freedom of speech has limitations, such as legally obscene speech or speech that incites violence, Griffin's photo does not fall into these categories.

In conclusion, while Kathy Griffin's photo of a decapitated Trump may have been controversial and offensive to many, it did not constitute a threat and is protected as free speech under the First Amendment.

Is the photo protected by the First Amendment?

In 2017, Kathy Griffin posted a video of herself holding a mask styled to look like the severed, bloody head of then US President Donald Trump. The image was taken down and Griffin apologised for posting it, saying that she had crossed the line. Despite this, the photo sparked outrage and calls for the Secret Service to arrest Griffin for threatening the president.

However, the photo is protected by the First Amendment, according to Stanford University Law Professor Nathaniel Persily. The First Amendment protects freedom of expression through various forms of media and communication, including photography. Persily stated that the photograph did not directly threaten the president and did not urge people to harm him. He also said that people are allowed to wish the president dead, as long as they do not express a real intent to harm him.

The Supreme Court has also weighed in on the issue of what constitutes a threat to the president. In a 1969 ruling, the court overturned the conviction of Robert Watts, a young man accused of threatening former president Lyndon Johnson. Watts had said at a 1966 political rally that "if they ever make me carry a rifle, the first man I want to get in my sights is L.B.J." The court ruled that Watts' statement was "crude political hyperbole" and did not constitute a threat.

While the Secret Service did not mention Griffin by name, they appeared to address the controversy in two tweets, stating that they have a "robust protective intelligence division" that monitors social media to evaluate threats.

Persily cautioned against any attempt to prosecute Griffin, arguing that efforts to stifle speech usually backfire and bring more attention to the speaker and their grievances.

What is the legal definition of a true threat?

In the United States, a "true threat" is a threatening communication that can be prosecuted under the law. It is distinct from a threat that is made in jest or a threatening remark that no reasonable person would perceive to be a genuine threat, intended to be acted upon. The U.S. Supreme Court has held that true threats are not protected under the First Amendment, citing three justifications: preventing fear, preventing the disruption that follows from that fear, and diminishing the likelihood of the threatened violence occurring.

The true threat doctrine was established in the 1969 Supreme Court case Watts v. United States, in which an 18-year-old male was convicted for threatening President Lyndon B. Johnson. The conviction was based on a statement made by Watts, in which he said, "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." The Supreme Court overturned the conviction, ruling that Watts' statement was "political hyperbole" and did not constitute a true threat.

In Virginia v. Black (2003), the Supreme Court defined true threats as "statements where 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." The Court further clarified that true threats include when a speaker directs a threat to a person or group with the intent of placing the victim in fear of bodily harm or death. The speaker need not intend to carry out the threat, but the prosecution must prove that they intended to communicate a threat.

In recent years, the Supreme Court has grappled with the level of intention required for a statement to be considered a true threat. In 2023, in Counterman v. Colorado, the Court adopted the rule that speech is not protected if the speaker "consciously disregarded a substantial risk that his communications would be viewed as threatening violence." This case established a "subjective standard" that focuses on the state of mind of the speaker, rather than an "objective standard" that considers how a reasonable person would interpret the statement.

The determination of whether a statement constitutes a true threat depends on the context, the conditional nature of the threat, and the reaction of the listeners. This has become known as the "Watts factors," which help courts distinguish between true threats and protected speech, such as political hyperbole or statements made in jest.

What is the precedent for interpreting threats against the President?

Interpreting threats against the President is a complex task that requires careful consideration of context, intent, and the reasonable interpretation of the recipient. Here are some key precedents and factors that guide the interpretation of such threats:

Legal Framework:

• 18 U.S.C. § 871: This federal law criminalizes threats against the President, making it a felony punishable by up to 5 years in prison. The statute prohibits any person from knowingly and willfully depositing in the mail or conveying any threat to take the life of, kidnap, or inflict bodily harm upon the President.
• True Threat Doctrine: Courts have established the "true threat" doctrine, which requires that a reasonable recipient of the communication would consider it a threat under the circumstances. This standard helps distinguish between a genuine threat and protected speech under the First Amendment.
• Intent: While an actual intent to carry out the threat is not necessary for a violation, the context and intent behind the words are crucial. Proof that threatening words were uttered as political hyperbole, idle talk, or jest indicates they may not constitute a true threat.

Precedents and Examples:

• Watts v. United States (1969): The Supreme Court overturned the conviction of Robert Watts, who stated at a political rally that he would shoot President Lyndon Johnson if drafted to serve in Vietnam. The Court ruled that Watts' statement was "crude political hyperbole" and did not constitute a knowing and willful threat.
• Kathy Griffin Controversy (2017): Comedian Kathy Griffin posed with a fake decapitated head of President Trump, sparking outrage. While many called for her arrest, Stanford University Law Professor Nathaniel Persily argued that her actions were protected speech. He noted that Griffin's photo didn't directly threaten the President or urge others to harm him.
• Presidential Assassination Threats: The Secret Service handles investigations into threats against the President. Historically, prosecutions for such threats have risen during national crises and with the emergence of new communication technologies like social media.

Could the photo be considered hate speech?

In 2017, comedian Kathy Griffin posted a video of herself holding a mask styled to look like the severed, bloody head of then US President Donald Trump. The video sparked outrage and led to calls for her arrest for threatening the president. While Griffin herself apologised, saying she had crossed the line, legal experts weighed in on whether the photo constituted a criminal offence or fell under the protection of free speech.

The photo of Griffin holding a fake, decapitated head of Trump does not constitute hate speech. Hate speech generally refers to speech that offends or threatens an individual or group based on their race, colour, religion, national origin, sexual orientation, disability, or other such traits. The photo did not identify any specific traits of President Trump that would classify it as hate speech. Even if it did, hate speech is protected by the First Amendment, and there is no exception for it in the Constitution's guarantee of free speech.

However, the photo could be considered criminal if it included a genuine threat to harm the president or intentionally incited others to do so. Federal law criminalises threatening to harm the president, but Griffin's photo did not constitute a direct threat. According to Stanford University Law Professor Nathaniel Persily, the photo lacked words specifically encouraging threatening action, placing it in the category of ""crude political hyperbole", which is protected by the First Amendment.

The context and intent behind such statements are crucial in determining whether they cross the line into true threats. In the 1969 case of Watts v. United States, the Supreme Court overturned the conviction of a war protester who made a statement about wanting to get President Lyndon Johnson in his rifle sights. The Court ruled that the statement was "crude political hyperbole" and did not constitute a true threat, citing the importance of the First Amendment in protecting free speech.

While Griffin's photo sparked outrage and was widely condemned, it fell short of inciting violence or making specific threats against the president. As such, it is unlikely to be considered hate speech or a criminal offence, even though it may be deemed to be in poor taste.

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