Kathy Griffin and 18 US Code 871 / Can a Photo Be Considered a Threat?

Kathy Griffin

Kathy Griffin

My name is Scott Roth and welcome to Changing Optics. We are a nonprofit focusing on working with people (especially High School and College students) to see the world through different lenses via Photography

A great opportunity to do just that has been all over news in the past few days.

Kathy Griffin and her image depicting the beheading of current President of the United States, one Donald Trump. Kathy Griffin said she was Inspired by Donald Trump’s comments about Megyn Kelly after the beginning Republican Primary Debate where he said in a follow up interview

“I don’t have a lot of respect for Megyn Kelly—she’s a lightweight,”

“She gets out and she starts asking me all sorts of ridiculous questions and, you know, you could see there was blood coming out of her eyes, blood coming out of her wherever.”

Now in defense of Trump he was basically saying that Megyn Kelly had a certain anger towards him. That her line of questioning was because he gets her blood boiling…but he added that “wherever” part, and one could argue that he was referring to menstruation, so it became more than just that he didn’t like her approach to journalism but that she was a woman and her line of questioning wasn’t too lady like. That moment caused a lot of controversy and the visual message Kathy Griffin wanted to get across was how it felt to hear that.

The Photographer who took the photo is Tyler Shields who is a Portrait Photographer. He also took the main image above of Griffin back in 2014. To understand his relationship to a portrait such as Griffin’s, I refer to one of his recent Instagram posts:



“the more you do it the more you want to go deeper into the person you are shooting so it becomes a dance how much are they willing to give and how much are you willing to ask for, the best portraits come when both people are open to allowing what is meant to happen to simply happen.”

A Portrait Photographer like Tyler Shields is to the model what a record producer is to a musician, like George Martin with the Beatles.

Therefore, the Artist in this controversial image is not Tyler Shields but Kathy Griffin. Now I am safe to assume, but it is an assumption, that there was some form of a model release that allows Tyler Shields to publicly release these images.

Now let’s bring up potential fallout. A controversial image of an individual falls under “Defamation”. Defamation involves either Slander or Libel. Libel is written while Slander is spoken. Libel would be considered for an image. Defamation is a civil violation so the only one who could sue Kathy Griffin is the defamed President and no one wants to see the President waste his time with a civil suit against a comedian

Which brings us to the more serious nature –

18 U.S. Code § 871 – Threats against President and successors to the Presidency

The reason why 18 U.S. Code § 871 comes up in discussion of Kathy Griffin is strictly because of who is being depicted as beheaded which is our current sitting US President Donald Trump

So, what does 18 US Code 871 say:


Whoever knowingly and willfully deposits for conveyance in the mail …. or for a delivery from any post office or by any letter carrier …. any letter, paper, writing, print, missive, or document containing ANY threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States…. the President-elect, the Vice President or other officer next in the order of succession to the office of President of the United States, or the Vice President-elect, ……or knowingly and willfully otherwise makes any such threat against the President, President-elect, Vice President or other officer next in the order of succession to the office of President, or Vice President-elect, shall be fined under this title or imprisoned not more than five years, or both


This is where the Changing Optics or “looking through different lenses” as it pertains this image comes in.

 Can the image of the President beheaded be looked at as a threat?……from a Comedian?

Well …while the law says the document refers to any threat to inflict harm it does not specify where that harm is to come from …i.e. the deliverer of the message doesn’t have to be the executor. So, if a judge deems that the image can be taken as threatening it doesn’t matter if there is an impression of a follow through

Which brings us to the knowingly and willfully part. Kathy Griffin knowingly and willfully knew who the person was that was being depicted as beheaded. It was HER idea. Now one could claim she didn’t knowingly and willfully expect it to be considered as threatening. However, the law puts the knowingly and willfully at the beginning, regarding the conveyance and delivery of the document (in this case image). It doesn’t say the deliverer must knowingly and willfully MEAN IT as a threat and it’s that delivery that we must go back to …as Kathy Griffin isn’t the one who released the image. Tyler Shields the photographer released it …to the public (via internet)

Kathy Griffin instead of apologizing should be standing by her original reasoning for doing it. It’s the backtracking and apologizing, saying it went too far and WAS offensive that strengthens the argument that it was NOT just Art but an actual threat

This is where she differs from Ted Nugent. Ted Nugent’s comments about Obama and Hillary delivered at one of his shows to what I assume is a paying audience of his. So, his comments were directed at the crowd as a form of entertainment. A member of the crowd recorded it and that is how it became a known comment. He also made comments at an NRA show in which he mentioned “have off with their heads” but he followed it with “in November” referring to voting them out.

This is not to say there shouldn’t be outrage toward Ted Nugent but it wouldn’t fall under the scope of Defamation or Code 871

There are also images of Obama being hanged but these photos are of actual demonstrations at people’s residencies and the photos online are mere snapshots of those demonstrations. Therefore, the photographers who took the photos and shared them online are no guiltier then the member of Ted Nugent’s crowd who recorded his comments.

My name is Scott and this is Changing Optics

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