Kathy Griffin’s Offense and Revisiting Free Speech Rulings

Kathy Griffin’s grotesque and vile defilement of the President of the United States is the most shocking and offensive display of hatred towards a public figure I have ever seen delivered by an American citizen. I have not yet seen or heard anyone defend her actions as being appropriate, or even valid. But recurrently, the left’s answer to her disgusting video is that they eagerly defend her right to have done it because the First Amendment protects her rancid form of expression.

Well. . . guess what?. . . it shouldn’t, as her expressions do not carry with them a sufficient sense of civility or decency to merit the protections of a provision as austere as the First Amendment to the Constitution of the United States.

Griffin’s “political expression” of stoically holding a very accurate likeness of the severed head of the President of the United States for others to marvel is not political speech.

There is no logic in it. It does not advocate for a particular policy, or a political philosophy.  There isn’t even a political opinion that is expressed. The “bold statement” that her “art” makes, at best, is a raw hatred for this President and the pleasure that she would take at his decapitation. At worst, it is an invitation for similarly sick people to take up arms against our nation’s leader and bring harm to him in a manner akin to those employed by our present enemies.

In short, there isn’t much veiling of the threat to the life of the President of the United States contained in the images fabricated and published by Griffin.

But Griffin, like her fellow leftist haters, will misguidedly shroud herself with the First Amendment; defiling it in no less a fashion than she did the President himself. How can she do that? How is it that a whole group of people can make such a deranged argument about the protections afforded to them by the Constitution?

Free speech precedents

If you think about it, their argument comes not from the Constitution itself, but rather the interpretations of that document contained in two opinions. Yes, that’s all they are; opinions.

The first proceeds from a 1964 U.S. Supreme Court case known as New York Times Co. v. Sullivan, a legal confrontation between the Montgomery, Ala., Public Safety Commissioner, L.B. Sullivan, and supporters of Dr. Martin Luther King Jr. regarding an advertisement those supporters had taken out in the New York Times. In that advertisement, they published inaccuracies about the actions of the Alabama State Police and how they handled Civil Rights activists.

These inaccuracies included claims that the state police had arrested Dr. King seven times when in fact he was arrested four times. They also reported the wrong song that the demonstrators sang at the steps of the state capitol, and they misreported the reason for the expulsion of nine college students. Sullivan argued that these inaccuracies held him in a false light and were defamatory of him.

Ultimately, the Supreme Court sided with the New York Times. In its ruling, the Supreme Court found that a successful prosecution of the defamation of a public official required that actual malice (so called New York Times malice) be proved. The Court then defined New York Times malice as one where the defendant (the person delivering a statement) displayed a reckless disregard for whether the statement was true or not.

Eliminating any accountability

The effect of this case was to strip any legal liability of what is said regarding a public official. This resulted, of course, in fake news, reckless media frenzies, and the misguided belief that one can say whatever he or she wants about a public official, regardless of how disgusting or personally threatening such an expression may be.

Following that was the opinion of the 1989 case of Texas v. Johnson. Here, the Supreme Court held that the burning of the American flag, the same flag hundreds of thousands of Americans died protecting, was a form of political expression and thus protected under the Constitution.

You now have all the precedents you need to legally make the argument for Griffin in court.

But the Johnson case was by no means unanimous, as it was decided by a 5-4 majority that, oddly, saw the revered conservative Justice Antonin Scalia join Justices Blackmun, White, Kennedy, Marshall, and Brennan in the majority. In his descent Chief Justice Rehnquist reminded us that the flag, as the national symbol, deserved special protections against its desecration while making the point that Johnson’s actions expressed no specific political thought, but rather represented “an inarticulate grunt.”

Fast forward to Kathy Griffin and her terrible video. Doesn’t the President of the United States who, like the flag, represents our nation and is a living, breathing human being, and the ultimate target of our nation’s enemies, deserve the defenses of which Chief Justice Rehnquist speaks?

Time to revisit some precedents

Griffin’s case highlights all the things that have gone awry with the nation, its culture, and its modes of political expression since the creation of New York Times malice precedent.

But like so many things, these degradations are a result of the legislative environment in which we live, which oftentimes comes not from the reasoned (or heated) policy battles waged within the halls of Congress, or in our state capitols. Rather, they are the result of misguided Supreme Court opinions inconsistent with the will of the people regarding the Constitution’s proper interpretation.

No, the First Amendment does not protect Griffin’s inarticulate, vile, and disgusting grunt. She should be held accountable, not merely through the punishments of her employers and of the public, but through our judicial system as well.

In light of all that has happened and continues to happen with the press and the nation’s predictable deterioration in the conduct of its activists and its political commentators, it is time the Supreme Court revisit its misguided decisions. More importantly, it is time for a judicial override amendment (about which I have previously written) to be passed.

EDITORS NOTE: This column originally appeared in The Revolutionary Act.

---