Comedian and actress Kathy Griffin has reportedly been interviewed by the U.S. Secret Service for more than an hour. The investigation is connected to a recent photograph which showed her holding the bloody head of Donald Trump.
Griffin’s attorney contends that the actress was just exercising her constitutional rights.
“She basically exercised her First Amendment rights to tell a joke,” Dmitry Gorin, a criminal defense attorney representing Griffin said. “When you look at everything in the media, all the times entertainers make videos or express themselves in other ways, you’ve never seen an entertainer, let alone a comedian, be subject to a criminal investigation.”
Griffin’s attorney doesn’t have to “contend” that she was “exercising her constitutional right” of free speech, she was exercising that right—-irresponsibly, recklessly, unethically, stupidly, hatefully, but she was still exercising it. There is no question that her disgusting photo was inappropriate and pure hate posing as humor, but never mind: people choosing to be hateful and irresponsible in their public speech should expect consequences, but not from the feds. Of course it chills freedom of expression for Griffin to be subjected to this kind of secret police-style grilling. It is a matter of public record that she is a comedian. It is a matter of public record that she is a professional jerk. Thus it is a matter of public record that she is a no threat to the President….just to a civil culture and good taste.
On the other hand, as Captain Hook ( Colonel Claus von Stauffenberg…Luke Skywalker…) used to say—what kind of responsible policy would allow the Secret Service to ignore that photo? What if a non-comedian posted exactly the same image, but with him, not Griffin, holding the head? What if he was an aspiring comedian? An aspiring comedian with a criminal record? Should not the exact same expressive speech be protected from negative government action, no matter who expresses it? If Kathy Griffin can hold up the President’s severed head without being seen as a true threat, why can’t I?
You know how the secret Service thinks, though: if, in some wild, unexpected occurrence, an established comic who has held up a bloody model of the President’s head did attack him, would anyone excuse the Secret Service for not investigating what turned out to be a real warning, and not a “just a joke? I can’t blame them for thinking that way, because they are quite correct. Consequentialism, as illogical as it is, and hindsight bias, as unfair as it is, are both the norm when disasters occur, not the exception.
As a citizen under the Constitution’s protection, Kathy Griffin should not have to face the intimidating experience of a Secret Service interrogation. Beyond question, this is government action that impinges on free speech. (On Instapundit, Prof. Glenn Reynolds calls the Secret Service’s actions “silly.” Silly? Just as Griffin’s stunt wasn’t funny, the government working her over in response isn’t “silly.” It is serious and ominous. ) Yet the Secret Service is not wrong to use a broad rather than a narrow standard for interpreting what is a threat on the life of a President.
This is an ethics conflict, where two or more ethical principles point us in different directions. Like all ethics conflicts, the solution is careful balancing. My inclination is that freedom of speech and expression has to prevail, but it will only take one “joke” that turns out to be a genuine threat to flip that result, to the detriment of our liberty.
Lincoln was murdered by an actor, after all.