Newt Gingrich appeared on Fox and Friends this morning to discuss the protests held over the weekend in response to Donald Trump being sworn in to the presidency of the United States. During one such protest rally, singer/entertainer Madonna took the stage and made what some would consider inflammatory comments towards the new president. Specifically, she said (among other things), “I have thought an awful lot about blowing up the White House.” Although, she quickly followed up that she reasoned it would’t help.
This caused Newt to go off on a tirade about a new Leftist Facism in this country and he suggested Madonna should have been arrested.
This caught the attention of some in the media, including CNN’s Brian Stelter who fired off this tweet:
Newt on Fox just now: “She oughta be arrested” https://t.co/a0LD5eVHoO
— Brian Stelter (@brianstelter) January 23, 2017
Madonna’s remarks also caught the attention of The Washington Post’s Eugene Volokh, who is a law professor and authors a legal blog for the newspaper. Volokh determined Madonna’s speech was protected by the First Amendment.
“First Amendment law — and common sense — has long realized that not every reference to violence, even related to the president, is a true threat,” Volokh wrote. “The question is what words actually mean in context, not whether someone uses the phrase ‘blowing up the White House.’”
Volokh further explained the seminal case on the issue is U.S. v. Watts, a case handed down by SCOTUS in 1969 that looked at whether Watts intended to harm then-POTUS LBJ.
During a Vietnam War protest rally, Watts allegedly said, “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”
Accordingly, he was charged and convicted of a felony — knowingly and willfully threatening the President.
SCOTUS tossed the conviction, holding, it was mere “political hyperbole” and did not constitute a “threat” under the circumstances.
“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….” the court held.
Similarly, Volokh found Madonna’s remarks, when taken in context, do not constitute a “threat” against the President.
“Madonna just literally said that she thought about bombing the White House, rather than she would bomb the White House,” he explained (emphasis added). It is simply that “in this context, Madonna’s statement isn’t a threat of violence — not in the eyes of the law, and not, I think, in normal everyday understanding.”
[image via screengrab]
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