Recent actions by Ms. Kathy Griffin have triggered countless backlashes against her by the American public. Numerous social media responses to Ms. Griffin’s actions seem to not deny that she had a free speech right to engage in her conduct. Interestingly, some of those same social media responses call for a Secret Service investigation into her actions. This raises a couple interesting questions: can Ms. Griffin’s actions be considered speech, which would be protected under the First Amendment? If so, can Ms. Griffin’s conduct expressing her thoughts regarding President Trump be constitutionally regulated? These are important questions every American should fully understand concerning our First Amendment freedom of speech rights. Luckily, the Supreme Court has decided numerous cases to help us answer the above questions.
To answer the first question above, one must understand that our freedom of speech rights as explicitly stated in the First Amendment also include a certain right to freedom of expression. Texas v. Johnson, 491 U.S. 397 (1989) was a landmark Supreme Court case that elaborated on this theory. In that case, Johnson was tried and convicted under a Texas state law for burning and desecrating the American flag before a large crowd at Dallas City Hall during the Republican National Convention in 1984. Johnson appealed his conviction to a Texas appellate court, which ultimately reversed his conviction, reasoning that Johnson’s expressive conduct was protected by the First Amendment. Texas subsequently appealed this reversal of Johnson’s conviction to the Supreme Court, arguing that Johnson’s conduct and conviction was within Texas’s power to constitutionally proscribe.
The Supreme Court affirmed the reversal of Johnson’s conviction. Writing for the majority, Justice William Brennan stated that the first issue among many others that the Court needed to decide was whether or not Johnson’s conduct could be considered speech to fall within the First Amendment. To determine this question, Justice Brennan stated that the Court has decided that conduct can constitute speech protected by the First Amendment if “an intent to convey a particularized message was present [by such conduct], and whether the likelihood was great that the message would be understood by those who viewed it.”
Justice Brennan was able to state with ease that Johnson’s conduct met this standard given that Johnson’s message was clear (disdain for the government of the United States) and given that the crowd likely understood this message (the crowd in front of Dallas City Hall consisted almost entirely of protesters who were displeased with the Reagan administration). Thus, for these reasons, Johnson’s conduct could be considered speech (the Supreme Court ultimately upheld the reversal of Johnson’s conviction as violating his First Amendment right to freedom of speech based on the application of a test the Court decreed in a previous case, O’Brien v. United States, 391 U.S. 367 (1968); however, for purposes of this analysis, only the Johnson test on whether conduct amounts to speech is necessary to analyze Ms. Griffin’s behavior).
Applying the Johnson test stated above to Ms. Griffin’s actions, it is clear that her conduct can be considered speech. It was meant to convey a particular message (one that is quite obvious and not worth repeating here) and it was likely to be understood by the many Americans who viewed it. However, moving to the next question, is Ms. Griffin’s conduct speech that can be constitutionally regulated under the First Amendment given its obvious offensive and tasteless nature?
For First Amendment purposes, “offensive speech” can most likely be defined as speech that is unlikely to result in physical violence, but nonetheless inflicts a genuine, mental distress on the listener not rising to the level of a tangible or diagnosable injury. The leading Supreme Court case that dealt with offensive speech as defined above was Cohen v. California, 403 U.S. 15 (1971). In that case, Cohen was prosecuted and convicted under a California law that prohibited “maliciously and willfully disturbing the peace or quiet of any neighborhood or person by offensive conduct” based on Cohen donning a t-shirt inside the Los Angeles County Courthouse that displayed a four-letter expletive regarding the Vietnam draft. Id. at 16.
Cohen appealed his conviction all the way to the Supreme Court, which ultimately reversed his conviction. Writing the opinion of the Court, Justice Harlan stated that “the conviction [of Cohen] quite clearly rest[ed] upon the asserted offensiveness of the words Cohen used to convey his message to the public. Id. at 18. “The only ‘conduct’ which the State sought to punish is the fact of communication.” Id. Justice Harlan further reasoned that the conduct California sought to punish here was solely the fact of communication of a certain word and not any incidental actions related to such word. Id. As a result:
[T]he State certainly lacks power to punish Cohen for the underlying content of the message the inscription conveyed. Id. [S]o long as there is no showing of an intent to incite disobedience to or disruption of the [Vietnam] draft, Cohen could not be punished for asserting the evident position on the inutility or immorality of the draft his jacket reflected. Id.
Put more simply, the Court reasoned that Cohen’s speech did not fall within one of the categories of unprotected speech under the First Amendment. Id. at 20. The specific unprotected speech category the Court referred to herein was the “fighting words” exception decreed by the Court in Chaplinsky v. New Hampshire, 315 U.S. 568 (1942), which held that “there are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Chaplinsky, 315 U.S. at 571-72. “These include…fighting words—those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.” Id. at 572. Accordingly, since Cohen did not intend to incite violence or utilize speech that inflicted injury (i.e. slander or libel), his speech could not be regulated by the government.
Ms. Griffin’s speech likely falls under the Cohen standard rather than the Chaplinsky standard given that Ms. Griffin did not intend to incite violence with her speech nor inflict tangible injury by her speech (even though her speech was extremely emotionally disturbing to any reasonable person). While her actions could have instigated violence, that is not the standard her actions are judged under for First Amendment purposes; her actions are judged by whether or not she subjectively intended to incite violence by her actions. As a result, her actions cannot be punished by the government.
However, that is not to say Ms. Griffin should not suffer serious consequences for her speech. Indeed, speech of such an offensive and disgusting nature should suffer serious backlash, which it likely has given that Ms. Griffin has been completely ostracized by many Americans. This is the greatness of America at work. When we don’t agree with actions intending to convey a message, we are free to take our time and money elsewhere. This is likely more powerful than punishing Ms. Griffin under the rule of law. It can even be argued that punishing Ms. Griffin under the law for her actions may do more harm than good given that she could be portrayed to be some sort of hero political prisoner by segments of our society (however sick and twisted that mindset may be). Thus, in situations where offensive speech is used, the best form of punishment in our capitalist, free market society is by closing our wallets and ears to such speech.
by Daryl Sizemore | Legal Analyst – Right Side News