A boardwalk game in Seaside Heights, N.J., features a moving target of President Barack Obama. Contestants hurl baseballs in his direction. A Pennsylvania amusement company pulled a target-shooting game last week that included Obama's image. Is it legal to take aim at a representation of the president?
Absolutely. The First Amendment protects the right to free expression, which includes the right to shoot, burn, or in any way destroy an image of anyone including the president as long you're not posing a "credible threat." The standard here is whether there is genuine intent to commit or incite violence, and also whether that violence is likely to actually occur. If there's no "clear and present danger," as Justice Oliver Wendell Holmes, Jr. put it, there's no basis for censorship. So unless the Seaside Heights boardwalk is, in fact, a surreptitious assassination training ground, the game is perfectly legal.
There's a long history of threatening presidential representations. Hanging in effigy was a common form of political protest in the 18th and 19th centuries. Presidents Washington, Adams, and Jefferson were all hanged in effigy; and before the civil war, "Hang Abe Lincoln on a Sour Apple Tree" was a commonly sung parody of "John Brown's Body." (There was a similar song about Lincoln's southern counterpart, Jefferson Davis.) George W. Bush was routinely hanged and burned in effigy in the United States, including during the famous "Pants on Fire Tour" led by Ben and Jerry's co-founder Ben Cohen, who hit the road with a 12-foot tall effigy of Bush.
Flippant verbal threats against the president are similarly OK. In 1966, 18-year-old Robert Watts was at a public rally by the Washington Monument when he said, in reference to the draft, "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." He was arrested and prosecuted, but his conviction was overturned by the Supreme Court in Watts v. United States—the justices ruled that jokes about killing the president do not present a credible threat. Nearly two decades later, Ardith McPherson, a clerical worker in the office of the Constable of Harris County, Texas, was fired after she told her boyfriend, following reports of the Reagan assassination attempt, "If they go for him again, I hope they get him." McPherson sued for reinstatement claiming her First Amendment rights had been violated. The Supreme Court agreed, reiterating that comments or jokes made with no intent to act are perfectly legal free speech.
The United States Secret Service routinely investigates threats against the president. Most of these cases are dismissed quickly as not credible, meaning the individual under investigation does not truly intend to harm the president and does not have the means to do so. An Alabama teacher was suspended in May after using the example of assassinating President Obama to illustrate angles in geometry. The Secret Service investigated but then declined to pursue the case. The school admitted that the lesson had been in poor taste.
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Explainer thanks Bruce Ackerman of Yale Law School, Burt Neuborne of New York University School of Law, Fred Schauer of University of Virginia School of Law, and Peter Shane of the Ohio State University Moritz College of Law.