WhatFinger


She clearly violated 18 U.S. Code § 871 by threatening the life of the president. Being a celebrity or claiming you were "just kidding" is not an excuse.

Arrest Kathy Griffin



Did Kathy Griffin break the law with her bloody Trump head video? That comes down to a question of whether you believe there was a real threat - expressed or implied - in the video. Threats don't require words, after all. Threats can be expressed with images. They can also be implied with images. If you haven't already seen it, here is the video that has unfunny comedienne Griffin in so much hot water:
Now, here is what the U.S. Code has to say about threats to the life of the president:
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.
So, can Griffin's actions here be read as a real threat according to the wording of the statute? There was no Internet when this statute was originally written in 1948 (although it was updated as recently as 1994, when the modern-day Internet was in its infancy), but one could certainly define the video published on TMZ as a "missive" for the purpose of this statute. Does a beheading represent a threat to take the life (obviously), kidnap (I suppose not) or inflict bodily harm (again, obviously) against the president?

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We've got her there. The only question is whether the video represents a real threat, as opposed to some sort of joke or satire that should obviously not be taken seriously. USA Today argues that it is clearly satire and thus protected speech:
Threats "knowingly and willfully" made against the president, president-elect, vice president or vice president-elect are a class E felony under federal law. That includes any "threat to take the life of, to kidnap, or to inflict bodily harm" upon those officials. But, in Griffin's case, there is no question the photo of her holding a mock Trump head is protected speech, said Stanford University Law Professor Nathaniel Persily. The photograph did not directly threaten the president and it didn't urge other people to harm him, Persily said. "People are allowed to wish the president dead," up to the point they express a real intent to harm him, Persily said. "To threaten someone you need words that encourage some sort of action," and those words are absent in Griffin's photo, he said. In a 1969 ruling, the Supreme Court overturned the conviction of Robert Watts, a young man accused of threatening former president Lyndon Johnson. Watts said at a 1966 political rally that he was "not going" if he was drafted to serve in Vietnam and added that "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 ruled Watts' statement, which is much closer to meeting the definition of a threat than Griffin's photos, was merely "crude political hyperbole." "In light of its context and conditional nature," Watts speech "did not constitute a knowing and willful threat against the President," the court ruled, citing the importance of the First Amendment. "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," said the court. "What is a threat must be distinguished from what is constitutionally protected speech." Determining which is which is all about context and the intent of the speaker, Persily said. "You have to get into a person's head" to determine if they really wanted to harm the president and weren't being satirical or making a crude political point.
That Supreme Court ruling would seem to put Griffin in the clear. But does it? The Watts case represented a very different political context. A lot of people were angry with LBJ ovet the Vietnam War and the draft, but when you compare the context of the political times then to today, there was not the same level of personal demonization of the president that we see today of President Trump. I understand fully what the radicalization of the '60s was like, but today's atmosphere of angry late-night hosts and nonstop personal vilification in many ways shows that we have now mainstreamed what was once considered radical.


I would also dispute the claim that you need words to issue a real threat. If Griffin had said, "I would love to behead Trump like ISIS does to people," would the expression be any more stark than the image of herself appearing to actually do it? As to the question of whether she directly threatened the president or urged others to do the same, let me turn the left's own arguments on Griffin. The left blamed Sarah Palin's use of gunsights in a commercial for the shooting of Congresswoman Gabrielle Giffords, even though Palin's commercial had nothing to do with the use of guns. The left has often claimed Rush Limbaugh's harsh criticisms of Barack Obama and the Clintons might help encourage unhinged right-wingers to take violent action, and Rush was blamed directly for Timothy McVeigh's bombing of the federal building in Oklahoma City back in 1995. If those were valid criticisms, why can't it be said that Kathy Griffin might be encouraging someone to do harm to President Trump by desensitizing us to the idea via this video? What it ultimately comes down to is what excuse does she offer for doing what she did? Excuse number one seems to be that because she's a famous comedian she was obviously kidding. I don't see anything in the statute that lets you off the hook for claiming after the fact that you were just kidding. Excuse number two seems to be that she didn't actually mouth the words, "I want to do this to President Trump for real." I don't see why she would need to mouth those words. If a picture tells a thousand words (as people who can't write are always trying to tell me), then this one tells a very complete and unambiguous story. This video represents a real threat to the life of the president. It is no defense to say you were just kidding. It is no defense to say you're Kathy Griffin. Nobody's laughing. It's not funny. Arrest her and charge her. Convict her and send her to prison. Not only would America be better off not having to see or hear from Kathy Griffin for five years or so, but other Trump-haters who might consider doing something similar would surely get something to think about.

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Dan Calabrese -- Bio and Archives

Dan Calabrese’s column is distributed by HermanCain.com, which can be found at HermanCain

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