Kathy Griffin sparked outrage across the political spectrum on Tuesday when a photo surfaced of the edgy comedian holding aloft the bloody head of a dummy made to look like President Trump.
Much of the outcry on social media called for the Secret Service, the agency tasked with looking out for the president’s safety, to arrest Griffin for threatening the president.
Griffin herself said she “crossed the line” in a video apology. But no matter how guilty Griffin was of bad taste, did she commit a crime?
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.
Trump has reacted to her act….
Kathy Griffin should be ashamed of herself. My children, especially my 11 year old son, Barron, are having a hard time with this. Sick!
— Donald J. Trump (@realDonaldTrump) May 31, 2017