I’m Going to Kill President Trump

Boy, I sure hope the Secret Service comes after me for posting that.

Multiple outlets are reporting that Kathy Griffin, who recently got her fifteen minutes by posting a photograph of herself holding an obviously fake severed head of the so called president, more recently spent an hour or so chatting with the Secret Service.

I just posted the same image, so I must be as guilty as she is.

Griffin should have told the Secret Service to stuff it.

The Supreme Court has addressed the line between speech that merits the protection of the First Amendment and what they are pleased to call “true threats” more than once. The most recent such case turned on the relatively narrow question of whether the prosecution needed to show an intent to threaten in the defendant. In Elonis v. United States, 135 S. Ct. 2001, the jury instructions in the trial under review in the case only directed jurors to consider whether a reasonable person would construe the statements as threats, not what the defendant intended. The Supreme Court reversed and remanded without addressing the Constitutional issue of where to draw the line between protected speech and culpable threats.

A more useful, if messy, case is Virginia v. Black, 538 U.S. 343 (2003), which intrudes the complicating factor of addressing a statue that prohibits burning crosses, a practice, as the majority opinion expressly notes, that has a long history as a device for deliberate political intimidation. It does provide a very clear, concise definition of “true threat”: “‘True threats’ encompass those 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. See Watts v. United States, supra, at 708 (“political hyberbole” is not a true threat); R. A. V. v. City of St. Paul, 505 U. S., at 388.” Anticipating the issue in Elonis, the opinion here asserts that the speaker need not intend to carry out the threat. What a prohibition on true threats proscribes is action with the intent to threaten, to cause fear of bodily harm or death, and the “disruption that fear engenders.”

It then takes up the issue of content neutrality. A core holding of the Supreme Court in First Amendment cases is that any restriction on speech must be content neutral — it cannot favor one type of speech over another. The Virginia supreme court had struck down the statute that prohibits cross burning by pointing to a U.S. Supreme Court opinion that struck down a municipal ordinance that prohibited various forms of speech, including symbolic conduct such as flag burning, for the purpose of intimidating or threatening persons with a specific list of characteristics. The majority opinion in Virginia explains that the problem was the preference for certain forms of hostility over others. The Virginia statue did not violate the Constitution under this rule because it prohibited cross burning in all instances, without regard for the population the actors might want to intimidate or threaten.

The point is that when there is no difference between the purpose of the prohibition and the class of persons it protects, there is no content discrimination to cause any problem under the Constitution. To illustrate the point, the opinion states, “[T]he Federal Government can criminalize only those threats of violence that are directed against the President . . . since the reasons why threats of violence are outside the First Amendment . . . have special force when applied to the person of the President.” The implicit claim is that threats against the President are sufficiently offensive or worrisome or some such, and the class it protects is, by definition, completely congruent with the prohibition itself, that it works no preference as to content.

In the context of this opinion, it is a small point, but this claim directly contradicts the central holding of another case it had cited approvingly before this for the point that “‘political hyberbole’ is not a true threat.” That case is Watts v. United States, 394 U.S. 705 (1969), which is directly on point for our discussion here because it involves a case in which a young man threatened to shoot President Lyndon Johnson during a political discussion in Washington, D.C.

That opinion states, “Certainly the statute under which petitioner was convicted is constitutional on its face. The Nation undoubtedly has a valid, even an overwhelming, interest in protecting the safety of its Chief Executive and in allowing him to perform his duties without interference from threats of physical violence. See H.R.Rep. No. 652, 64th Cong., 1st Sess. (1916). Nevertheless, a statute such as this one, which makes criminal a form of pure speech, must be interpreted with the commands of the First Amendment clearly in mind. What is a threat must be distinguished from what is constitutionally protected speech.” Note the pragmatic justification for allowing a prohibition on threats to the president — “allowing him to perform his duties….” Since there are good reasons to have serious doubts about the ability of the so called president to perform his duties at all, this justification loses much of its force, although I doubt any federal judge would accept that rationale. There is also the ironic, practical, sort of meta point, that again, one doubts a federal judge would find convincing, that we have not had a president assassinated since John F. Kennedy, despite attempts to assassinate both Gerald Ford and Ronald Reagan, in both cases by persons who were physically very close to the President at the time of the attempt, such that any feeling of genuine threat by any President is fundamentally irrational, such is the effectiveness of the Secret Service.

The Watts opinion then goes on to state: “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, 383 U. S. 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.” It then orders the case returned to the trial court for “entry of a judgment of acquittal.”

Taken in context, tell me with a straight face that any thinking person could have interpreted Griffin’s photograph holding an obviously fake severed head of the so called president as anything but “a kind of very crude offensive method of stating a political opposition to the President,” which clearly merits the protection of the First Amendment.

The careful reader may wonder how the Court could go from stating flatly that “Certainly the statute…is constitutional on its face” to ordering a reversal of the defendant’s conviction. The answer, which the opinion plainly assumes without discussing, is the distinction between facial violations of the Constitution and “as applied” violations. One can claim that a given law is unconstitutional in all instances, that there is no way to enforce it without violating the defendant’s rights. One can also claim that there are conceivable instances in which one might enforce a law without violating the rights of the defendant, but this is not one of them. What the Court held in Watts is that the federal government may prohibit threats to the president without violating the Constitution, but in enforcing that statute, it must take care not to try to punish speech that clearly falls within the ambit of the “vituperative, abusive, and inexact…language of the political arena.”

Kathy Griffin should have dared the Secret Service to recommend her for prosecution. She should have told them to stuff it.

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