Can Art Legally Threaten the President?

The right-wing blogosphere wasn’t exactly tickled when an Alaskan assistant professor decided to decapitate President Trump last month. To be fair, the violence was only virtual—the teacher, artist Thomas Chung, had painted an image of the Captain America actor Chris Evans, naked, holding Trump’s severed, bloody bust by a lock of his infamous hair.

Trump didn’t respond to Chung but he has previously taken to Twitter to slam others who have subjected him to artistic abuse. In March, the rapper Snoop Dogg released a video for the song “Lavender,” which includes an orange-faced Presidential doppelgänger pleading for his life while Snoop points a gun at him. The trigger gets pulled, but the weapon turns out to be a novelty toy.

Regardless, Trump was not amused. “Can you imagine what the outcry would be if @SnoopDogg, failing career and all, had aimed and fired a gun at President Obama?” he tweeted. “Jail time!” The dust-up between Snoop and the famously litigious Trump did have people wondering what the consequences could be for even coyly hinting at such violence in an artistic way. (Debunked viral stories circulated online falsely claiming that Snoop had been arrested.)

Turns out that both Snoop and Chung can rest easy, at least until the new administration attempts to erode or dismantle the protections provided by the First Amendment. (Keep in mind that White House chief of staff Reince Priebus recently stated in an ABC News interview that criminalizing flag burning is something that is “probably going to get looked at” by the administration.)

“Political speech is very highly protected,” says law professor Amy Adler, pointing to a 1969 Supreme Court case, Watts v. United States, which helped broaden such protections. An anti-war protester had publicly declared that, if he were drafted and given a gun, “the first man I want to get in my sights is LBJ.” The court ruled that—even though this sounds like a “true threat” at face value—it actually is an example of political hyperbole.

“An implied threat to the President,” Adler explains, “actually has a political dimension—that a threat to your neighbor might not.” Another example of such hyperbole, she adds, would be Madonna’s statement during January’s Women’s March that she’d thought about “blowing up the White House.”

The legal concept of “clear and present danger” also comes into play with works of visual art, considered as a form of speech. A key question is if the work is calling for people to harm the president in a way that would result in an imminent threat, “[as if] you stood in front of a crowd and said, ‘fire your guns right now,’” said Adler. “Short of those kind of imminent moments, First Amendment law has evolved to give broad protection to people who say stuff that might encourage others to act violently.”

And, of course, depicting something—including an act of violence or destruction—doesn’t necessarily signify intent. Not everyone who paints banks on fire is actually going to burn one of them down.

I asked Chung, the Alaskan professor, if he thought that visual artists should have “total freedom in terms of what they depict.” In response, he sketched the basic framework of his own classroom. “The rule I have with my students is the same as most therapists,” he says. “They’re allowed to make work about anything, as long as it doesn’t demonstrate a risk to themselves or others.”

You might argue that exhibiting a nude Captain America flaunting the President’s disembodied cranium is flirting with “risk to others.” But Chung’s painting, he says, is more nuanced than it might seem. The basic composition is borrowed from a sculpture of Perseus and Medusa. “I substituted Trump’s head for Medusa’s, thinking about all the ugly aspects of our society that were reflected in the election,” he explains. “The painting really isn’t about Trump at all. He began to stand for misogyny, racism, homophobia, and xenophobia. When he was elected, I mourned for the death of my belief that we, as a society, had made progress in those attitudes.”

Some artists who test the boundaries of free speech are less sanguine when confronted about their work. In 2010, Gil Vicente showed a series of drawings at the São Paulo Biennial, realistically rendered charcoal sketches of the artist, gun in hand, about to slaughter a cast of politicians and luminaries, from George W. Bush to the Queen of England. “Because they kill so many other people, it would be a favour to kill them, understand?” he countered. “Why don’t people in power and in the elite die?”

Just remember that if your art does push the boundaries of the First Amendment, when the controversy comes—you can still plead the fifth.