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.
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.