Constitutional Law Criminal Law Entertainment Law Litigation

First Amendment Case is Crash Course in Rap for SCOTUS

Anthony Elonis is a Pennsylvania man convicted of issuing threats to his ex-wife, who had an order of protection against him.  All of the relevant threats were posted on Elonis’ Facebook page and most of them took the form of rap lyrics. He did not tag or link his ex-wife to the posts and he usually included funny emoticons or other indicators that he was not being serious. While the First Amendment to the Constitution broadly protects speech, it does not protect “true threats.”

So before addressing the case, it’s worth looking at the posts that got Mr. Elonis in Federal hot water.

He did a near word-for-word parody of the comedy troupe Whitest Kids In America’s skit where a member discussed  that while it was illegal to kill the President, it was not illegal to discuss that it was illegal to kill the President.           So Elonis posted:

Um, what’s interesting is that it’s very illegal to
say I really, really think someone out there should
kill my wife.
That’s illegal.
Very, very illegal.
But not illegal to say with a mortar launcher.
Because that’s its own sentence.
It’s an incomplete sentence but it may have nothing
to do with the sentence before that. So that’s
perfectly fine.
Perfectly legal.
I also found out that it’s incredibly illegal, extremely
illegal, to go on Facebook and say something
like the best place to fire a mortar launcher
at her house would be from the cornfield behind it
because of easy access to a getaway road and you’d
have a clear line of sight through the sun room.
Insanely illegal.

Even though this language tracks the language in the skit and the post included a link to the video of the original skit, the jury in Pennsylvania found that it constituted transmission of a threat to injure or kill someone, in violation of Federal law. It also found that this original rap lyric was another threat:

Fold up your PFA [ order of protection] and put in your pocket
Is it thick enough to stop a bullet?
Try to enforce an Order
That was improperly granted in the first place
Me thinks the judge needs an education on true
threat jurisprudence
And prison time will add zeros to my
Which you won’t see a lick
Because you suck dog dick in front of children
And if worse comes to worse
I’ve got enough explosives
to take care of the state police and the sheriff’s

One other rap lyric that led to a Federal indictment and  conviction went as follows:

That’s it, I’ve had about enough

I’m checking out and making a name for myself

Enough elementary schools in a ten mile radius
to initiate the most heinous school shooting ever
And hell hath no fury like a crazy man in a

kindergarten class
The only question is . . . which one?

He was also convicted for another rap lyric which he included in a Facebook note and detailed a visit at his home by a female FBI agent in which he intimated that he had a bomb strapped to him at the time of the interview:

You know your shit’s ridiculous
when you have the FBI knockin’ at yo’ door
Little Agent Lady stood so close
Took all the strength I had not to turn the bitch
Pull my knife, flick my wrist, and slit her throat
Leave her bleedin’ from her jugular in the arms
of her partner
So the next time you knock, you best be serving
a warrant
And bring yo’ SWAT and an explosives expert
while you’re at it
Cause little did y’all know, I was strapped wit’
a bomb
Why do you think it took me so long to get
dressed with no shoes on?
I was jus’ waitin’ for y’all to handcuff me and
pat me down
Touch the detonator in my pocket and we’re all

In the Third Circuit (the Federal Appeals Court that covers Pennsylvania) courts have held that what the “threatener” intended by the communications or writings does not matter; what matters is whether a reasonable person would view them as a “true threat.” Other Federal Circuits have held that there must be some evidence that the “threatener” intended to issue a “true threat.” Due to this division in Federal Circuits, the Supreme Court of the United States must decide. The question presented is:

Whether a conviction of threatening another person requires proof of the defendant’s subjective intent to threaten; or whether  it is enough to show that a “reasonable person” would regard the statement as threatening.

Seems straightforward enough, but the answer will have far-reaching consequences for the way we communicate today.  One of the things that Elonis’ legal teams’ excellent brief does is take the time ( and precious pages) to explain to SCOTUS that throughout modern musical history, starting with the blues, “first-person revenge fantasies are such a prevalent theme . . .as to be cliche.” Elonis brief at page 53 [The Brief is available for viewing at the ABA’s site]. It goes on to quote from various blues songs and then rock and even country songs whose theme is killing a current or former spouse. But perhaps its greatest understatement is “But arguably, they have reached their apotheosis in rap music, which has pushed the boundaries of hyperbole.” The brief then cites significant parts of some of Eminem’s songs about his mother and his wife Kim, who have both been the subjects of violent revenge songs. The brief argues that allowing these types of lyrics to constitute “true threats” merely because  the subject of the song reasonably believes them to be true threats would stifle artistic expression and creativity and be an insupportable prior restraint on speech. Rather, the lawyers argue, SCOTUS should align itself with the Circuits that have held that the prosecution must offer some proof that the defendant actually wanted to threaten the alleged target.

bill-of-rights.jpgEducating SCOTUS on rap – while presenting a funny picture-  is vitally important to the success of the brief. I am not going out on  limb to state that chances are the vast majority of the Supremes could not recite the lyrics of The Supremes much less Eminem or Public Enemy or Nicki MInaj; as a rule I see that they tend to go for opera (which is actually pretty violent in its own way).  They need to understand the current culture and climate to become aware that followers of rap know that these songs are just bragging and entertainment. It’s part of the overall genre of rap and hip-hop. That is why an amicus curiae (“friend of the court” brief)  filed by the University of Florida’s Marion Brechner First Amendment  Project is extremely important. The brief (also available at takes the Court through a history of rap. (Editor’s Note: I was grateful to see that it correctly traced its origins to the South Bronx). The writers eloquently explain that part of the genre’s popularity

resides squarely within a long tradition of African American storytelling and verbal
competition, one that privileges exaggeration,metaphor, and, above all, wordplay. Underlying this
tradition is the practice of signifying, or the obscuring of apparent meaning; in the process of signifying,
ambiguity is prized, meaning is destabilized, and gaps between the literal and the figurative are intentionally
exploited. This practice, along with rap’s dense slang and penchant for imbuing words with new meaning(s),
makes it especially susceptible to misreading and misinterpretation

Elonis Amicus Brief -Brechner at page 11. [Editor’s note: that passage is itself poetry]. The brief’s authors also take great pains to point out that rap artists and even rap aficionados are viewed with distrust and contempt by “police, politicians, religious leaders, and civic groups who maintain [rap] is particularly threatening to American society.” They continue by alerting the Court that much of this ill-will is merely the latest version and manifestation of prejudice and dislike of minorities in general  and of young people of color in particular.  So they stress that there must be subjective proof of the writer’s intent or else “such biases and prejudices may subtly cause jurors and jurists to erroneously find true threats where none exist.” That is a great and compelling argument for ruling that courts cannot merely rely on the reasonable person standard – because the reasonable person is likely to not understand rap and may very well be biased against rap and against those who like it or produce it.

I am following this case closely not just because of its implications to rap artists but because of its implications to free speech everywhere.  The case’s potential for far reach is best exemplified by another amicus brief field jointly by PETA and Pro-Life Groups (and they say politics makes strange bedfellows). This brief is focused on the implications of using the reasonable person standard against loud and occasionally obnoxious protesters. Those who don’t like the messages are more likely to find that the shoutings and rantings are “true threats.”   I am also following the case because in early October I will be going to the Georgia Supreme Court to argue that the First Amendment prohibits the issuing of a protective order against a blogger who merely posted on the Internet about his alleged “target.” The trial court in Georgia ordered the blogger to remove not only the allegedly offending posts but all posts he had written about his subject. So part of our brief -and the excellent amicus curiae brief filed by Constitutional scholar Eugene Volokh of UCLA on behalf of the Electronic Frontier Foundation and others – takes time and precious pages to make the court aware of the raucous and rowdy language of the Internet and in particular Internet discussion groups.

Modern communication is constantly evolving and courts must keep evolving with it. Any lawyer worth his salt knows that you must give the person deciding your client’s fate – be it judge, jury or appellate court – the proper context and history to understand the situation. Without requiring that there must be some evidence of an actual intent to threaten, opens up society to a flood of claims and cases being brought by folks that just have not adapted to the 21st Century. It would provide a serious prior restraint on artistic expression and personal freedom. Hopefully SCOTUS will take its hip-hop lesson to heart and reverse Mr. Elonis’ convictions.





One reply on “First Amendment Case is Crash Course in Rap for SCOTUS”

Speaking of which, how about this one recently out of the Central District of CA:

“The Court finds that copyright ownership of a sound recording under § 980(a)(2) includes
the exclusive right to publicly perform that recording.”

CA statute 980(a)(2) referring, of course, to pre-1972 sound recordings.

Leave a Reply

Your email address will not be published.