By Logan Barrett
Kathy Griffin’s video was disgusting and wrong. No one should joke about killing a president especially not someone with that type of platform, but was the video illegal? Short answer, no. The First Amendment is a cornerstone of American democracy and needs to protect as many people as possible. Let’s get something straight, the First Amendment gives you the right to say almost anything, but it does not protect you from the consequences of what you say. It also does not protect you from getting offended by what people say.
The United States Supreme Court first took up a First Amendment case in Shenck v. US (1919). In this case, the Espionage Act of 1917 was under question after Shenck was arrested for mailing anarchist pamphlets directly to men that had been drafted and encouraged them not to show up to basic training. The Espionage Act mad it “illegal to make statements that could cause insubordination or disloyalty in the Armed Forces or to obstruct enlistment or recruitment”. This is a very broad law that gives the government the power to silence people that even question a war. Imagine if this law were still in effect during the Iraq War.
Oddly enough, the Supreme Court ruled against Shenck and established “clear and present danger” as a test for free speech cases for the next 50 years. In the same year, another anarchist wrote pamphlets and threw them into the street. He was arrested under the Espionage Act and the Supreme Court ruled against him saying that national security is more important in this situation than free speech.
The “clear and present danger” test changed in Brandenburg v. Ohio (1969) where it was replaced with “imminent lawless action”. Ohio argued that Brandenburg making threats with guns in the background showed “clear and present danger”, but the Supreme Court disagreed and said that the “clear and present danger” test was too subjective and vague and could lead to too many restrictions on free speech. “Imminent lawless action” refers to something illegal that is about to purposefully occur and there is no time for other speech to be heard. This is the current standard by which free speech cases are analyzed and using it with Kathy Griffin would say that her speech is, and should be, protected.
The First Amendment is meant to protect as much speech as possible even if it is heinous and disgusting. The First Amendment is why MLK could speak out against segregation and racism in America, but it’s also why the Westboro Baptist Church can torment grieving families. There is speech that will offend you, disturb you, and enrage you, but you need to be exposed to it so you can best combat it and persuade people from agreeing with it. Never live in a bubble surrounded by people that agree with you and don’t shun people who disagree with you. Conservatives and liberals are both guilty of this and it needs to stop. Conservatives, listen to why liberals want to protect a woman’s right to choose what happens in her own body, acknowledge that there are two people to consider in this equation and it isn’t an invalid argument to defend choice. Liberals, listen to why conservatives want to protect the life of a fetus, don’t flippantly label their views as anti-women when their motive is to protect human life. This will lead to an overall better understanding of issues, a less divisive conversation, and even if it doesn’t solve the issue it can lead to both sides respecting the others point of view.
About the Author: Logan is an intern at Reid Law Firm a rising senior at Auburn University majoring in Public Relations with minors in Business and Political Science. Logan may be reached at logan.reidlawfirm@gmail.com.
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