The Secret Service is investigating Kathy Griffin because of a photograph in which she holds a bloody, decapitated Trump head. Agents told ABC News that yes, they are looking into the comedian.
“We don’t have the luxury of knowing a person’s intent,” they said. “Each alleged or perceived threat has to be investigated thoroughly.”
But no, don’t expect her to be arrested for the violent image featuring President Donald Trump‘s “head.”
— Breaking911 (@Breaking911) May 30, 2017
If she were arrested, however, the bar to achieve a successful conviction would be quite high.
Last year, a gun store owner in Florida sold gun targets featuring the faces of then-President Barack Obama, former Secretary of State Hillary Clinton, and Senator Bernie Sanders (I-Vermont). He claimed the Secret Service investigated him, and in any case, he wasn’t arrested.
If you’re curious about how this works, look at the 1969 Supreme Court case Watts v. United States. Justices ruled for a man who was convicted for threatening President Lyndon Johnson at a rally. They said his statement was merely “crude political hyperbole” in context.
“I am not going [to Vietnam],” the man said. “If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”
That same year, in Bradenburg v. Ohio, the Court ruled for a Klan member who supported “revengeance” against the U.S. government. They held that speech is unprotected if it is both “directed at inciting or producing imminent lawless action,” and likely to succeed.
With all that in mind, it is highly likely that a judge would consider Griffin’s photo “crude political hyperbole.” Also, note that the term “imminent lawless action” is interpreted quite narrowly. The action really has to be imminent and not merely hypothetical. While clearly provocative in tone, this image falls short of that standard.
Griffin said she was sorry for the picture.
“I’m a comic,” she said in an apology Tuesday evening. “I crossed the line. I move the line and then I cross it. I went way too far.”
[Screengrab via Kathy Griffin]