I cannot stand Donald Trump. Anyone who has recently had the misfortune of discussing politics with me knows this to be true; indeed, they may (rightly) consider it to be a drastic understatement. I believe his election was a truly unfortunate event in American history, though the thought of Hillary Clinton issuing orders from the Oval Office fills me with an equal amount of disgust. I have been rather critical of President Trump for his whole term, and will continue to criticize him where I see fit, as I would (and have) with other Presidents.
That said, I do not believe all forms of protest are created equal. Kathy Griffin, comedienne and ardent anti-Trumper, recently conducted a photoshoot with controversial photographer Tyler Shields, depicting her holding the President’s (manufactured) severed, bloodied head. Both sides of the political spectrum swiftly expressed their disgust, with such figures as Chelsea Clinton, Jake Tapper, and Al Franken criticizing the “art.” Griffin has since issued an apology. However, in a tweet, Shields, the photographer, described the photo as “an artistic statement,” and argued to Peter Sblendorio of the New York Daily News that “When you make art, you can do anything you want.”
The comedienne, however, has since issued statements which fly in the face of reason. First, despite her apology, Griffin said in a press conference that the response of the Trump family to her picture was “unprecedented.” While that is not necessarily true – for instance, see Richard Nixon’s handling of Kandy Stroud’s comments about First Lady “Plastic Pat” Nixon – it also lacks relevance. In addition, while both Griffin and Shields insist they have no desire to incite violence against the President, the picture, evocative of the recent trend among terrorist groups (most notably ISIS) to publicize beheadings and other gruesome executions, could easily be seen as a threat to the POTUS, whether implicit or explicit.
Griffin and Shields seem to be under the impression that this is simply a case of lèse-majesté, or the insulting of a monarch or other ruler. Lèse-majesté and other forms of dissent are still routinely punished in various countries across the globe. Of course, the United States has no such laws, as the First Amendment guarantees Americans’ right to express themselves freely.
That said, there are judicial precedents on what constitutes a legitimate or illegitimate use of free speech, press, and so forth. In Schenck v. US (1919), Justice Oliver Wendell Holmes issued his famous dictum regarding the illegality of “falsely shouting fire in a theatre and causing a panic.” While, of course, such dicta are not legally binding, and the Schenck decision has since been overturned, many still cite Holmes’ dictum as an example of the limits of the First Amendment. In the same year as Schenck, Holmes contradicted his own dictum by declaring in his dissenting opinion in Abrams v. US that “The ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.” The 1969 case reversing the Schenck precedent, Brandenburg v. Ohio, established that any speech not “directed to inciting or producing imminent lawless action and […] likely to incite or produce such action” is constitutionally protected. These cases have been critical to discussions of the freedom of expression in American politics.
What, then, does this all mean for Griffin and Shields? Criminal charges are possible, but improbable. By her own testimony, Griffin is currently the subject of a Secret Service investigation. She seems surprised by this development, which is absurd; after all, if the agency investigated a 2009 Facebook poll inquiring whether or not Obama should be assassinated, they obviously have a responsibility to assess such a blatantly – and potentially inspirational – violent image’s purpose, creation, and proliferation. Despite the ostensible lack of legal repercussions, Griffin and Shields will likely suffer the wrath of the marketplace of ideas referenced by Holmes; indeed, Griffin has been dropped from numerous events already, including co-hosting CNN’s New Year’s Eve coverage in Times Square. Her career appears to be taking a steep – if not terminal – nosedive. Griffin has said as much, lamenting that “I don’t think I will have a career after this. I’m gonna be honest, I think he [Trump] broke me.”
This is the second way in which Griffin goes awry in assessing the situation. She blames Trump for the fallout from her decision to participate in that photoshoot, asserting that he is a “bully.” While Trump may in fact be a “bully” – personally, I think he is – that is, at best, of little relevance to this situation. Her career is in critical condition not because of anything President Trump has done – though he is likely helping the dying process along – but because of her own obscene action. The intense criticisms from the Left bear this point out; Trump could sit on his hands and simply let the press tear her apart (Nixon used such tactics in numerous scenarios, first in his leadership of the House Un-American Activities Committee’s [HUAC] prosecution of Alger Hiss [1949-50]).
While it’s certainly possible that CNN, Squatty Potty, and other companies and individuals were coerced into denouncing Griffin, this is highly improbable, especially considering the condemnations coming from such ardently anti-Trump individuals as Chelsea Clinton and Jake Tapper. Frankly, the only person Griffin can blame for the fallout of her photoshoot is herself. She crossed a line which the American people still hold sacred: the peaceful protest of disagreeable political persons and policies.
Kathy Griffin claims to be brave; perhaps she is. Her handling of the American people’s response, however, indicates otherwise, as she seems unwilling to accept the consequences of her actions. It seems she has lost in the “competition of the market” of “the free trade of ideas” referenced by Justice Holmes a century ago. She made a risky investment by participating in the photoshoot with Shields, and it fell through. Her own discomfort with reaping a harvest of sour grapes is telling – it shows how much the American tradition of political protest has declined. Though other political dissidents in the past have complained of their treatment at the hands of government forces, most understood going in that they were risking much by sticking their necks out. Griffin’s belief that her action was simply a joke and should be treated as such is both ludicrous and unrealistic. Her assertion that the collapse of her career is Trump’s fault shows how irresponsible she is, and that she refuses to accept any notion that her action was truly reprehensible or inappropriate, despite her “apology.”
In the future, those who dissent and/or demonstrate against Trump and other politicians and policies should consider the example of Kathy Griffin and ask themselves: Am I willing to reap the potential consequences of my actions? Am I being realistic about what those potential consequences are and should be? Do I believe strongly enough in what I am asserting to actually accept any negative consequences?
Only with such realistic assessments of the risks and realities of political protests can any political dissident hope to have an impact which inspires others and convinces them of the rightness of their cause. As such, Kathy Griffin has (unfortunately) done Trump’s opponents – whether liberals, moderates, or conservatives – damage which will likely take some time to undo.
* Special thanks to Sam Archibald and Sam Whiting for their comments on this article.
 Indeed, recent discussions regarding national security – especially counterterrorism – have imbued new importance to these cases. See Amos N. Guiora, Global Perspectives on Counterterrorism (Austin, TX: Aspen, 2007).