united-states us-constitution freedom-of-speech
Is it legal to show myself holding a fake severed bloodied head of a living person for profit?
<p>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?</p>

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

<p>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?</p>

<p>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?  </p>

<p>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.</p>

<p>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 <a href="https://casetext.com/case/us-v-gore-2" rel="nofollow noreferrer">US v gore</a> 592 f 3d 489</p>

<blockquote>
  <p>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.</p>
</blockquote>

<p>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 <a href="http://openjurist.org/394/us/705" rel="nofollow noreferrer">Watts v. United States</a>, 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.</p>
