Should George Lopez Face Prosecution for His Recent Comment?

The Comedy Get Down Tour featuring Comedian George Lopez performs during Nashville Comedy Festival at Bridgestone Arena at The Ryman Auditorium in Nashville, Tenn., on April 21, 2018. Rick Diamond/Getty Images for Outback Concerts

Commentary

Comedian George Lopez recently came under fire after he joked about an $80 million bounty that was placed on President Trump’s head.

Specifically, Lopez responded to an Instagram post about the bounty and crudely wrote, “We'll do it for half.”

Many people perceived this comment as a threat to the president and called for his arrest and prosecution. While his comment was disgusting, prosecution, while possible, is unlikely in this case.

According to 18 U.S. Code § 871(a), which pertains to threats against the president and successors to the presidency:

“(a) 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.”

At first glance, it appears that the comment at issue here neatly falls within reach of the statute. After all, Lopez seemingly made his comment knowingly and willfully by way of responding to an Instagram post. Case closed, right? Not so fast.

Even if Lopez knowingly and willfully made the comment, one remaining question is whether his comment was truly a threat against the president. In other words, was it a “true threat?” Did he really intend to threaten the president of the United States or was his comment merely a joke (or political banter)?

In responding to this question, one area of debate revolves around whether an objective or subjective standard should be applied. In other words, for purposes of culpability, is it necessary to prove that a reasonable person would construe Lopez’s comment to be threatening in nature (objective standard), or is it necessary to prove that Lopez intended his comment to be threatening (subjective standard)?

In Elonis v United States, the Supreme Court implemented a subjective standard when analyzing a different statute. There, the Supreme Court stated:

“The jury was instructed that the Government need prove only that a reasonable person would regard Elonis’s communications as threats, and that was error. Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state. That understanding ’took deep and early root in American soil‘ and Congress left it intact here: Under Section 875(c), ’wrongdoing must be conscious to be criminal.' ...”

However, in the case of U.S. v. Fuller, a federal court applied an objective standard when analyzing the statute pertaining to presidential threats. There, the court stated:

“We ... adhere to the objective standard for a ’true threat‘ consistently employed by the court. Under this standard, a communication is a ’true threat’ if ‘a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm upon or to take the life of the President.’ ... The advantages of this objective, reasonable person standard are many, and have been validated by the fact that nearly all of the other circuits have incorporated it. ...

“Finally, the objective, reasonable person standard does not tread on free speech.   Under it, the First Amendment’s protection of political hyperbole, jokes, and other constitutionally allowed speech is not diminished. ... (holding that the following statement, conditional in nature and made at a political rally, was not a true threat: ‘If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.’). Requiring the government to establish that the communicator knowingly and willfully made a threat—intending it to be received as a serious threat, regardless of whether he intended to carry it out—ensures that §871 does not become technical in nature or lead to punishment for innocent acts. ...

“In the alternative to requiring a subjective intent to carry out the threat, Fuller urges us to require a showing of apparent present ability to carry it out. Fuller points to no authority for this proposition. As far as we can tell, it has never been an element of §871. ... Mandating such a showing would thwart the efficiency purpose of §871 just as a subjective intent requirement would; a threat causes disruptions, inconveniences, and costs even if its maker is unable to carry through with it.” In Fuller, the court referenced the case of United States v. Howell (“A true threat is a serious one, not uttered in jest, idle talk, or political argument. Whether a statement is a true threat is to be decided by the trier of fact. A threat is knowingly made if the maker comprehends the meaning of the words uttered, it is willfully made if the maker voluntarily and intelligently utters the words in an apparent determination to carry out the threat.”).

Given his previous comments about the president, the fact that he’s a comedian and has asserted that it was a joke, and the fact that many people understood his comment as such, it’s possible, although highly unlikely, that his comment would be construed as a “true threat” for purposes of prosecution.

It should, however, be construed as tasteless, inappropriate, and not funny whatsoever.

Elad Hakim is a writer, commentator, and attorney. His articles have been published in The Washington Examiner, The Daily Caller, The Federalist, The Algemeiner, The Western Journal, American Thinker, and other online publications.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.