The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
— Rep. Marjorie Taylor Greene (@RepMTG) April 6, 2022
Washington Post (Eugene Scott) reports:
Late-night host Jimmy Kimmel joked about Rep. Marjorie Taylor Greene (R-Ga.) in his opening monologue earlier this week after she labeled some in her party "pro-pedophile" for supporting Supreme Court nominee Judge Ketanji Brown Jackson.
"Where is Will Smith when you really need him?" Kimmel asked, a reference to Smith's Oscar show storming of the stage and slap of comedian Chris Rock over a joke about Smith's wife, Jada Pinkett Smith….
[Greene's] spokesman, Nick Dyer, said Friday that "threats against Congresswoman Greene invoking Jimmy Kimmel have been coming into our office."
Dyer also pointed to a tweet Greene posted Thursday featuring a voice mail she said she received after Kimmel's monologue. "I would pay good money to watch Jimmy Kimmel bash your (expletive) head in with a baseball bat," a male caller said. "It would be so (expletive) hysterical."
But of course Kimmel's line is a joke, and even if serious is a statement of opinion—that Greene deserves to be slapped—and not a true threat that he or someone in league with him would slap her. (For more on the "true threat" exception to the First Amendment, see Watts v. U.S. (1969).) Nor could Kimmel be faulted for supposedly inciting threats by third parties, since there's no reason to think his speech was intended to and likely to produce imminent threats of violence (see Brandenburg v. Ohio (1969)).
To be sure, sometimes it may make sense for a Representative to report to the police things that she knows aren't crimes, but might be useful to know for the future (e.g., "This weird guy from my district has been sending me strange e-mails; nothing to do about it now, but if the mailroom gets any packages from him, they might be worth an extra check"). But that doesn't sound like what Rep. Greene's tweet is referring to.