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Kathy Griffin Just Demonstrated Her Utter Lack of Knowledge About How First Amendment Works


The Roseanne BarrSamantha BeeKathy Griffin triangle is everything that is stupid about 2018. After Samantha helpfully allowed racists everywhere to completely discount the Roseanne Barr situation by calling Ivanka Trump “a feckless bleep,” (let’s not forget that the actual word was censored), Sarah Sanders fired up some absurd outrage and declared:

“The language used by Samantha Bee last night is vile and vicious. The collective silence by the left and its media allies is appalling. Her disgusting comments and show are not fit for broadcast.”

Batting for Team Liberal, Kathy Griffin came to Bee’s defense:

And Griffin’s tweet set off a twitterwar with CNN’s Chris Cilizza, representing the always-predictible we’re-outraged-by-any-use-of-the-C-word faction:

Which devolved into more profanity, and several tweets by Griffin declaring us “in First Amendment territory.”

I’d like to cordially invite Kathy Griffin to just shut the hell up. Spewing incoherent nonsense about how the First Amendment works does nothing to help our cause. Doing it in an obnoxious manner while simultaneously dodging a valid and logical perspective doesn’t either.

Roseanne had the right to make racist remarks without being arrested, jailed, or otherwise governmentally-punished. ABC had every right to fire her and cancel her show, because 1) ABC is not the government; and 2) it likely had a contract with Roseanne containing some kind of morality clause, which would have reserved the right to terminate her employment in the event she conducted herself in any manner the network deemed improper. None of this has anything to do with the First Amendment, but it has everything to do with the concept of consequences.

The same holds true for Samantha Bee. Well, almost. Because, context. I do love a good rant, so let’s recap what Bee actually said when railing against Ivanka Trump’s monumentally tone-deaf Madonna-and-child shot:

Bee spat:

“You know, Ivanka, that’s a beautiful photo of you and your child, but let me just say, one mother to another: Do something about your dad’s immigration practices, you feckless cunt! He listens to you! Put on something tight and low-cut and tell your father to fuckin’ stop it.”

In other words, Samantha Bee did exactly what she was hired to do. She used some foul language (which *reminder* was actually censored during the broadcast), to perform a Carlinesque comedic rant criticizing a political figure for her public choices (and including a nice call-back about our president’s icky obsession with his daughter’s physique, I might add).   That’s a pretty far cry from making racist remarks, no matter how offended Sarah Sanders pretends to be.

Sure, TBS could choose to fire Bee or cancel her show for a number of reasons – although doing so for Bee’s turning out an episode that’s directly in line with her show’s mandate might be grounds for an employment lawsuit. Either way, though, not First Amendment. See ABC analysis above.

Turning now to Sarah Huckabee Sanders, her fauxrage and corresponding command that Time Warner/TBS “demonstrate” loyalty toward “female members of this administration” is unreservedly idiotic. Using a public podium to insist that people be nicer to her friends is pathetic, even for the middle-school recess yard that is the Trump Administration. Lameness aside, though, it’s pretty far from a Constitutional violation, and it’s downright dangerous for Kathy Griffin to say otherwise.

The White House Press Secretary is a public communicator for the executive branch of government. What that person says is certainly important – but it does not have the force of law. A press conference or statement is not an executive order. Sarah Sanders may communicate on Trump’s behalf, but her job is limited to just that – communication. It’s important that we keep this stuff separate, or we may overlook actual government action.

We’re living in a time when the lines between the powers the president has and those he thinks he has are precariously blurred. And while public opinion doesn’t dictate Constitutional limits of government, it has the tendency to erode the political checks and balances that are key its proper functioning. So when Kathy Griffin pronounces Sarah Sanders’ comments on “First Amendment Territory,” she clouds the public’s understanding of both the First Amendment and the press secretary’s authority.

The First Amendment prohibits Congress from making a law that abridges free speech. The executive branch is in charge of enforcing law – so by extension, it would be prohibited from enforcing any law in a manner that would abridge free speech. A statement telling TBS what the administration thinks it should do is unprofessional and inappropriate – but it’s neither creating nor enforcing a law.

Follow Elura on Twitter @elurananos

[(Photo by Christopher Polk/Getty Images)]

This is an opinion piece. The views expressed in this article are those of just the author.

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Elura is a columnist and trial analyst for Law & Crime. Elura is also a former civil prosecutor for NYC's Administration for Children's Services, the CEO of Lawyer Up, and the author of How To Talk To Your Lawyer and the Legalese-to-English series. Follow Elura on Twitter @elurananos