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No, Johnny Depp Can’t Be Arrested For Crude Joke About Assassinating Trump

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Another celebrity is wading into the political waters, and once again facing backlash. During an appearance on Thursday at the Glastonbury arts festival in England, actor Johnny Depp said, “Can you bring Trump here?”

He continued, “You misunderstand completely. When was the last time an actor assassinated a president? I want to clarify: I’m not an actor. I lie for a living. However, it’s been a while and maybe it’s time.” The remarks quickly went viral, infuriating many who are now calling for the arrest and investigation of the actor.

There were similar calls when Madonna took to the stage back in January and said, “I have thought an awful lot about blowing up the White House.” Republicans like Newt Gingrich called for her arrest as well, but as legal experts noted her speech, like Depp’s,  is likely protected by the First Amendment.

“The First Amendment law — and common sense — has long realized that not every reference to violence, even related to the president, is a true threat,” First Amendment expert and professor Eugene Volokh wrote during the Madonna debacle. “The question is what words actually mean in context, not whether someone uses the phrase ‘blowing up the White House.’”

From Volokh’s previous blog:

The classic example is U.S. v. Watts (1969), in which Watts was prosecuted for threatening Lyndon B. Johnson’s life:

[D]uring a public rally on the Washington Monument grounds [in 1966, t]he crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views.

[P]etitioner responded: “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.” “They are not going to make me kill my black brothers.” On the basis of this statement, the jury found that petitioner had committed a felony by knowingly and willfully threatening the President.

The Supreme Court reversed the conviction:

We do not believe that the kind of political hyperbole indulged in by petitioner fits within [the term “threat”]…. The language of the political arena … is often vituperative, abusive, and inexact. [Watts’] 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….

The same can be said of Depp’s remarks in England. They were clearly meant as a “very crude offensive method of stating a political opposition to the President.” Depp went on to say, “By the way, this is going to be in the press and it’ll be horrible … It’s just a question, I’m not insinuating anything.” A court would have to take Depp’s statements in the full context of what he said, and it would be unlikely that a judge would find that it was an actual threat of violence.

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