Johnny Depp's 'threat' remark was stupid -- and protected -- speech

Posted June 23

Johnny Depp loves trouble.

Recently, at the Glastonbury Festival in the United Kingdom, he prefaced some remarks with "This is going to be in the press, and it will be horrible. ..."

Yes? We're listening ...

His next statement delivered: "When was the last time an actor assassinated a president?"

His prediction was accurate: It was indeed a horrible statement, and it is now all over the press.

The Secret Service is already on it: It's aware of the remark but cannot officially comment on them, according to Secret Service staff.

As outrageous as it was for the actor to say this (the President's security is a serious matter of national security), the Secret Service can probably save some resources and let this one go. Johnny Depp is no threat.

First, let's consider: Federal law criminalizes "knowingly and willfully" threatening to kill or physically harm the president. But to bring it outside the protections of the First Amendment, the law requires a "true threat" -- a serious expression of intent to do harm to the president.

A "true threat" against the President does not require that Depp intended to carry it out, or even that he had the capacity to do so. This is because criminalizing threats serves two purposes: avoiding the risk that the threat may be carried out, and also protecting against the terror inflicted on others by threats.

It's an objective definition: If a reasonable person would foresee the statement would be interpreted by the audience hearing it as a serious expression of an intention to harm or kill the president, then it's a true threat.

Still, the law criminalizing presidential threats does not target offensive humor, bad taste or political hyperbole, as the Supreme Court made clear in Watts v. United States in 1969.

In that case, the high court held that the speech of a man who had said during a public political debate that, if inducted into the Army and made to carry a rifle "the first man I want to get in my sights is LBJ" was "crude political hyperbole which, in light of its context and conditional nature, did not constitute a knowing and willful threat against the President."

Said the court: "We agree with petitioner that his only offense here was 'a kind of very crude offensive method of stating a political opposition to the President.' Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise."

Depp's attempt at humor is not a crime; it's just a galactically stupid statement by a celebrity trying to sound clever.

The problem is, celebrities such as Depp spend their careers having everyone laugh at their jokes and nod approvingly at everything else they say. It's natural they would begin to think every word they utter is some holy nugget of wisdom. Surely celebs have responsibility for what they say; maybe we all bear some responsibility for letting them think they are so cool.

In fact, there's a decent argument to be made that celebrities rarely pose a risk of harm to the president. Their lives are too fabulous to commit an act of terror, right? Should we have a different standard for evaluating potential threats by celebrities versus those of mere mortals? Maybe.

Take the recent controversy over comedian Kathy Griffin holding up a fake bloody Trump head during a photo shoot. No one should take that as a threat. It's harsh political speech, and maybe a joke in poor taste. Part of that interpretation is based on her status -- not as a celebrity but as a satirist. She has a proven record of poking fun at people -- not assassinating them. It's OK to take that into account. It's not special treatment; it's just realistic and efficient threat assessment.

Famous people are not better than the rest of us, but famous people are statistically not as likely to be terrorists in general. Johnny Depp doesn't fit the profile of a shoe bomber or a clock tower sniper. This is not about fawning over or excusing Hollywood luminaries; it's about conserving law enforcement resources, and smart policing.

When taken in context, considering the speaker and the audience and the setting, Depp's comment was little more than a very crude -- but in context protected -- method of stating a political opposition to President Donald Trump.


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