Q1: If I decided to make an image of myself holding a (fake) Kathy Griffin's bloodied severed head and took a full colored newspaper ad with that picture in order to promote myself, would Kathy Griffin have any cause to ask police to investigate me for a threat against her or for inciting violence against her?

Unlike threatening a private person, making a credible threat against POTUS is not protected speech because of Title 18 USC paragraph 879.

Q2: If Griffin would be justified in feeling threatened by my hypothetical ad (as described in Q1), would her (now infamous) picture with a fake severed head of POTUS not be justified in being viewed and treated as the same type of threat? Is there an extra exception because she is known for her provocative style of performance which uses politics for shock value? Is this (perhaps) uncharted waters from the legal standpoint? Perhaps because the constitutionality of the above statute has never been tested?

Similarly, why would her depiction not be investigated as incitement of violence? What's the standard there? If any acts of violence are committed by 3rd parties as a result of seeing that picture, will she then bare any culpability?

I know there is a few questions here, but if someone with better knowledge of relevant case law can bring some clarity to whether she can conceivably be in legal jeopardy, I am curious to know what your thoughts are.

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    "Unlike threatening a private person, making a credible threat against POTUS is not protected speech because of Title 18 USC paragraph 879." Are you arguing that threatening a private person is protected speech? I think you are mistaken there. But I am not aware of any relevant laws taking into account whether the recipient feels threatened. Jun 1, 2017 at 2:54
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    A lot of this would fall under state law. Do we know in which state Griffin transmitted the photo, or in which state you would create or transmit your hypothetical photo? Jun 1, 2017 at 2:56
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    By the way, 18 USC 879 covers threats against the family of the President and against former presidents. You probably mean to refer to 18 USC 871. Along those lines, I would call your attention to 18 USC 875 (c) which generally prohibits threatening communications in interstate commerce. Jun 1, 2017 at 3:14
  • @Nate Eldredge, if nothing else, the POTUS falls under class protected by 879(b)(1)(B)(i) -- a person to whom POTUS is related by blood (ie, POTUS is related to himself by blood). As to why it is relevant whether Griffin herself would feel threatened by my hypothetical ad, it serves to distinguish whether or not she would have reason to believe that her speech constitutes a threat. If she would feel threatened in this situation, then she understands that taking these actions constitutes a threat.
    – grovkin
    Jun 1, 2017 at 3:45
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    @Nate Eldredge, I don't think simply posting something macabre (a la Marilyn Manson) involving POTUS is enough to rise to the level of a threat. I would think (and I really don't know) it would have to be a test of the state of mind of the poster to see if they meant it as a threat. And if Griffin would herself feel threatened by such a post (with her fake head), then it's a stronger case that she meant it as a threat (even if she knew she wouldn't have a chance to follow through on it).
    – grovkin
    Jun 1, 2017 at 4:25

1 Answer 1


Making a credible threat against anyone is not protected speech. The image would not constitute "inciting violence" (there must be an immediate urging, not just a vague possiblity). A drawing alone would not be a "credible threat" against anyone and would be protected speech, though might constitute reasonable grounds for further investigation (to see if there are concrete that have been taken to realize the implied outcome). There is no reasonable fear of a real and specific threat in such a drawing. The subjective state of mind of the individual so portrayed is irrelevant. See US v gore 592 f 3d 489

a present or imminent threat of serious bodily injury or death must be based on a reasonable fear that a real and specific threat existed at the time of the [defendant's] assault, resistance, opposition, or impediment. This is an objective test that does not depend on the defendant's perception.

There is no special legal standard covering threats to POTUS, celebrities, or ordinary folks. The only thing that might be special is that threats against POTUS can be federal crimes, not just state crimes. However, the fact of being a politician or public figure affects the calculus of credibility. See Watts v. United States, 394 U.S. 705. Ostensive "threats" as part of a political gesture need not be interpreted as real threats. Watts in this case said at a protest meeting (in 1966) "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J". This is not a credible threat, yet is more "credible" than a drawing of a bloody head.

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    The "true threat" doctrine is developed in Watts v. United States, R. A. V. v. St. Paul, and most recently in Elonis v. United States (which recognizes the mens rea requirement for 18 USC 875(c).
    – K-C
    Jun 1, 2017 at 5:21
  • So a private person making a similar representation of Griffin and publishing it would not be making a credible threat? But what if Griffin then got attacked and sued the paper? Would she have to claim that the harm to her was foreseeable? And if so, would that not be an admission, by her, that such a public depiction is a credible threat?
    – grovkin
    Jun 1, 2017 at 6:30
  • Can you, please, elaborate why, given the language of Title 18 USC paragraph 879 (b)(1)(B)(i), threats against the POTUS are NOT less protected speech than threats against other public or private individuals? It seems like 18 USC par. 879 is there to enable wider latitude for the Secret Service to do its job. And, it does so, by makes it a federal crime to make such threats essentially against anyone protected by the Secret Service.
    – grovkin
    Jun 1, 2017 at 6:35
  • @grovkin the answer addresses this - threats against anyone are state crimes, threats against POTUS are also Federal crimes.
    – Dale M
    Jun 1, 2017 at 8:50
  • @Dale M, Thanks. I had to re-read it a few times. The answer says that there is nothing special and then in the next sentence says that there might be. I know they are relevant, but I find bringing state laws into the mix a bit confusing. For the sake of clarity, maybe I should have asked what happens, from the viewpoint of the US federal law, if such an ad is made by a US citizen while on foreign soil (or even from D.C.). This would eliminate all state laws from consideration and would still make the federal law applicable.
    – grovkin
    Jun 1, 2017 at 9:04

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