Kathy Griffin, “True Threat” and What Happens When Free Speech & Artistic License Spawn a Can of Ugly

Two stories this week prompted a revisit on the topic of free speech in our society: the Kathy Griffin beheading of POTUS episode and a story that got lesser media play due to the publicity vacuum of the former . . . the installation of a urinating dog statue next to the “Fearless Girl” sculpture, which, in turn, was installed in recent months facing down the iconic “Charging Bull” statue on Wall Street.

Both incidents spurred immediate and diverse public reactions, as all displays of these various sorts are intended to provoke.

I’ve written on many, many, many past occasions on First Amendment / freedom of speech issues, and for me, the song sheet hasn’t changed exactly . . . but today, it merits some new layers of scrutiny.

For those who think Kathy Griffin should be “punished,” I think we can all rest assured at this juncture that Ms. Griffin would have far preferred 90 days in an L.A. County lock-up to the Squatty Potty-storm she’s inflicted upon herself.

While we can debate the psychology of her apology – and for the record, I think it’s reasonable to infer that the only thing she actually regrets is that her own political tribe has turned against her (at least for the moment) – I would normally support her right to have engaged her artistic license to shoot whatever video might ultimately result in her making a complete social and cultural pariah of herself.

However, the Griffin case is far from “normal.”

I must further conjecture that Ms. Griffin’s apology may have been spurred by outright legal – not commercially or socially driven – fears, namely, that she could be in legal jeopardy on the basis of the “true threat” prohibition of free speech. It’s on this matter that we must defer to a realistic conversation about the consequences of actions taken under the banner of First Amendment presumptions . . . and in this case, what may be Ms. Griffin’s erroneous presumptions.

We have to review what behaviors freedom-of-speech rights do not cover in the United States, which, among the list, includes “true threats” that could potentially incite violence – including particular threats against the sitting U.S. President, bearing in mind that practically every U.S. president gets burned in effigy by protesters somewhere in this country and by those holding viewpoints across the political ideology spectrum.

The First Amendment Center stated nearly 10 years ago that thanks to an abundant lack of clarity from the U.S. Supreme Court, “true-threat jurisprudence remains a muddled mess,” and it’s no clearer today than then, apparently.

I’m not a legal expert of any sort, but it doesn’t take a Juris Doctor degree to know that interpretation of speech is widely subjective and that the purveyance of visual images alone can communicate a host of direct call-to-action messages apart from any kind of verbal ones.

But maybe it takes a public relations degree.

After all, if Ms. Griffin wants to counter that an image of slinging around a gruesomely bloody, decapitated likeness of President Trump doesn’t convey a potential image-driven call-to-action message, she might want to consult those who view the Confederate flag as conveying certain potential messages, symbolism, and yes, even repugnant and criminal calls-to-action – to the extent of a growing nationwide legal ban.

Subjectivity, indeed.

The whole matter illuminates the plain and simple fact that free speech requires all citizens and entities to engage their First Amendment rights with some level of judgment, and, preferably for all concerned, good judgment. Many will agree that no such discernment was exercised by Ms. Griffin — but then, just how many people discern much of anything when their singular focus is to shock and offend? She is paying an enormous and arguably justified price in the court of public opinion; whether she will pay within the court of the U.S. legal system, it’s doubtful but may yet be determined.

And in other news . . .

The only comment I’ll extend on the Wall Street “Pissing Pug” fiasco is the aspect to the story that The Washington Post revealed . . . that “Arturo Di Modica, (‘Charging Bull’)’s creator, told the Associated Press last month that he considers ‘Fearless Girl’ an ‘advertising trick’ that alters the creative message of his legendary work by implying that the two statues are locked in a conflicted faceoff,” with Di Modica now filing suit against the City of New York claiming the addition of “Fearless Girl” to “Charging Bull”‘s artistic space violates his rights of expression under copyright law.

In effect, the artistic creator of “Pug” was inflicting a quid-pro-quo on the creator (and apparent Girl-Power advertising campaign) behind “Fearless Girl” because of the manner in which “Girl” allegedly violates the original expression intended by “Charging Bull.”  So there’s a lot more to that story than the initial headline would reveal.

And it’s yet another example of how we have to apply complex scrutiny to cases when free speech and artistic license collide.

In my view, one person’s “rights” should not infringe on the rights of others – such as others’ ability to express themselves unfettered (as in Di Modica’s case) or to live in freedom from threats of physical violence.

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Mary Beth West
Mary Beth West, APR, has more than 20 years’ experience in strategic communications. Mary Beth’s award-winning work has included creation and implementation of national media relations campaigns, employee communications programs, consumer and business-to-business marketing initiatives and crisis preparedness systems.

8 thoughts on “Kathy Griffin, “True Threat” and What Happens When Free Speech & Artistic License Spawn a Can of Ugly

  1. susan hart / Reply June 1, 2017 at 3:12 pm

    For my taste, Kathy Griffin couldn’t have crossed the invisible “taste and tolerance” line soon enough in the court of public opinion. Influencers, aka Anderson Cooper, quickly distanced themselves from her outlandish visual that spewed her hate and disrespect for the highest office holder in the land. I would have thought she had crossed that invisible line du jour a few years ago when she proclaimed her Emmy award as her new god, and that Jesus Christ could f..k off. I can’t even remember the last time I thought about Kathy Griffin as she fell off my radar screen long ago when her “allegedly” comedic style turned vile. Hence, her apparent need to raise the shock value of her work to garner relevance. However, I will staunchly defend her first amendment right to freedom of speech. The fact that a photo with no copy leaves its interpretation up to the viewer is a risky move. It’s also ill-advised from a taste and timing perspective. She crossed the line. Just like Michael Richards crossed the line years ago with the use of the “n” word; just like Paula Deen committed the same offense in an affidavit; just like the Dixie Chicks did under President Bush; just like countless others whose personal judgment at a particular moment in time unknowingly and detrimentally crossed that invisible line of public tolerance. And because the line constantly moves, just don’t approach it, unless you are, in fact, hoping to make front page news for whatever inexplicable reason. That would be your right.

    • Mary Beth West / Reply June 1, 2017 at 3:24 pm

      Agreed, Susan. For all the pushers-of-the-envelope out there (Griffin, Madonna, et al.), they have to get out of the kitchen if they can’t take the heat. It’s their right to express their views, but it’s others’ right to reject them . . . and in equally if not more brutal “artistic” terms. The Griffin Lesson will not be learned by other celebrities. As you point out, we’ll continue to see new variations of this situation, time and again.

  2. Michael Turner / Reply June 4, 2017 at 1:20 am

    There are two elements in play here. First, we live in a PC World. In the ’60s, I was a reporter for my college newspaper. I wrote stories differently in terms of the language I used. I was not as concerned with offending others. Today the opposite is the case and one has to walk on egg shells when covering stories and writing about them. Second, the world as vastly changed since nine-eleven. This is where Kathy Griffin’s antics or “art,” as she labeled it, falls. We are more on edge or uncomfortable when a person’s actions suggest violence or harm to others, especially, the president or other high profile people. Some people, who are 55+ have not successfully made the transition to the world in which we now live, work and play. This is apparently occurred with Kathy Griffin, Bill O’Reilly, and Paula Deen.

    • Mary Beth West / Reply June 5, 2017 at 1:52 pm

      Very good insight here . . . thank you!

  3. Michael C / Reply June 4, 2017 at 3:52 am

    There is an old idea: you reap what you sow.

    Trump himself has never hesitated to go after the personal when communicating. When a female reporter asks him hard questions he uses that as an opportunity to say something about her I even hesitate to repeat. When a disabled reporter asks him tough questions he visibly makes fun of this persons disability

    The lesson from a professional standpoint is to always hold yourself to a high standard. Even if those around you are not (and seeming to get promoted despite it). High personal standards always win out.

    In the end, too, it’s about what we value. Do I point to a comedian or entertainer to my daughter as an example of who she should aspire to be? Sometimes, but not very often. The president..yeah I would like to be able to all the time.

    • Mary Beth West / Reply June 5, 2017 at 1:53 pm

      Thanks for these comments . . . I agree.

  4. L Nixon / Reply June 4, 2017 at 3:55 pm

    The tenet of free speech has not been violated here. She expressed herself freely and is suffering natural (but perhaps unanticipated) consequences. I doubt if there will be a penal consequence – although there are always exceptions, and threatening a country’s head elected official is one of those really serious areas. If there’s a career-ruining backlash, that’s on her. She is a desperate gambler and she lost big on this roll. This is cultural morality peer pressure – not suppression of free speech.

    • Mary Beth West / Reply June 5, 2017 at 1:54 pm

      Very on-point. I tend to agree!

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