Last week, comedian Kathy Griffin sparked outrage when she posed for a photo with a fake, bloody head resembling President Trump. Griffin later apologized and stated that the image “crossed the line.” But many on social media are arguing that an apology is not enough and that the photo amounts to a hate crime, treason, or other criminal conduct. If that were true, then the government must not only punish Griffin (by imposing a fine or prison time) but also prevent others from engaging in similar conduct. The legal question at issue is whether the photo is protected as free speech under the First Amendment to the U.S. Constitution or if it crosses the legal line into a punishable offense.
The Supreme Court has held that the First Amendment protects not only written and spoken words but also symbolic speech and expressive conduct, such as burning the flag to protest actions of the U.S. government. However, freedom of speech has limitations. For example, speech is not protected if it’s legally obscene, incites violence, or otherwise falls into a category of criminal conduct.
The photo plainly does not fall into the category of hate speech. There is no one definition of “hate speech,” but the term refers generally to speech that offends or threatens an individual or group of people based on their race, color, religion, national origin, sexual orientation, disability, or other such trait. No such specific traits of President Trump are identified in the photo. Even if the photo did amount to hate speech, that alone would not remove the protection of the First Amendment. There is no “hate speech” exception to the Constitution’s guarantee of free speech.
Griffin’s photo might be considered criminal if it were accompanied by a genuine threat to harm the president or if it intentionally incited someone else to do so. Federal law makes it a felony to threaten to harm the president. However, Griffin’s photo does not directly threaten the president, nor does it urge others to harm him. According to Stanford University law professor Nathaniel Persily, First Amendment protection would be lost only if the photo contained words specifically encouraging some type of threatening action. Without such words, the photo most likely falls into the category of “crude political hyperbole,” and the Supreme Court long ago held that such speech is protected by the First Amendment.