In December the U.S. Supreme Court will hear a major case about free speech, online threats, and rap music. Elonis v. United States tests whether the speaker’s intent or the listener’s response will determine if there has been a “true threat” of violence, in this case in a series of Facebook posts. The case is doubly interesting, notes Tony Mauro in the National Law Journal, not just because it tests free speech in an Internet context, but because the briefing before the court has become something of a master class on Rap Music for Aging Jurists.
The case, which I wrote about in the spring, is a big test of the standard used to scrutinize threats to determine whether they are protected by the First Amendment. But it’s also become something of a referendum on the question of whether rap lyrics are an art form.
The case involves Anthony Elonis of Pennsylvania, who began putting darker and darker posts on Facebook after his wife took their kids and left him. His posts were often in the form of rap-style lyrics about shooting up kindergarten classes, dismembering his former wife, or killing the female FBI investigator who came to his door. One representative post about his wife went like this:
There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die, bitch, so I can bust this nut all over your corpse from atop your shallow grave.
When Elonis’ sister-in-law posted a status update about shopping for Halloween costumes for his children, Elonis posted, “Tell [my son] he should dress up as matricide for Halloween. I don’t know what his costume would entail though. Maybe [my ex-wife's] head on a stick?” His ex-wife was terrified. She obtained a protective order. In 2010 Elonis was charged with several counts of violating a federal law that prohibits transmitting “any threat to injure the person of another” across state lines. A jury convicted him on four of the five charges and sentenced him to 44 months in jail. He has already served three years.
The reason the case comes to the Supreme Court is that Elonis’ jury was instructed that the legal standard for finding speech to be an unprotected “true threat” is whether an objective person could consider his Facebook posts to be threatening. Elonis says the test should probe whether he intended them to be understood as threats. The 3rd Circuit Court of Appeals, looking at Elonis’ case, held that if a statement causes a reasonable person to fear for her safety, that’s a true threat. Most appeals courts apply that standard.
But Elonis’ legal theory got an endorsement from different court just this week. Without waiting for the Supreme Court to issue its final word on the matter, a three-judge panel of the 10th Circuit Court of Appeals ruled that the conviction of a white supremacist in Utah was not valid because the test for a true threat was whether the speaker intended for the recipient to feel threatened—and not merely that a “reasonable person” would interpret it that way.
One complicating factor in the Elonis case is that the court hasn’t yet looked at the true-threat doctrine through the lens of online media. The last time it assessed a true threat was in a 2003 cross-burning case.
Another tricky element here is that the justices have not really grappled with rap lyrics as speech. We know John Roberts likes Bob Dylan as much as his predecessor, William H. Rehnquist, loved Gilbert and Sullivan. But rap lyrics don’t get cited a whole lot at the high court. And that’s a problem. As music scholars Erik Nielson and Charis E. Kubrin have shown, rap lyrics have been used as evidence in hundreds of prosecutions around the country, and jurors and judges tend to reflexively view rap less as an art form than as a confession. Most jurors and judges don’t really understand rap. Rap lyrics are often deemed autobiographical, even if the rapper composed them under a different name. But as Elonis noted in his petition to the Supreme Court to hear his case, “Art is about pushing limits.”
So what do you do with justices who don’t know a thing about rap music, prefer Tosca to Tupac Shakur, and have shown themselves to be confused and often confusing when it comes to the constitutional questions surrounding violent video games, fleeting expletives, or computer-generated online porn? As Mauro noted Tuesday, one option is to use the amicus briefs filed in the case for a quick rap tutorial.
Ruth Bader Ginsburg had to have her new moniker, Notorious R.B.G., explained to her by her clerks.* But you can’t always count on clerks to really understand rap. So a new amicus brief filed by Clay Calvert on behalf of Nielson and Kubrin, together with the Marion B. Brechner First Amendment Project at the University of Florida in Gainesville, presents the history and essence of rap music. The brief takes the position that rap has generally gotten a bad rap in the courts and that’s largely because the courts don’t understand it. It opens with the claim that “Rap music 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.” The brief goes on to explain that these factors make rap lyrics “especially susceptible to misreading and misinterpretation.” The brief clarifies that police and politicians have developed a deep suspicion that rap music is uniquely dangerous, and that such fears “stem, in large part, from broader stereotypes, both about the genre itself and the primary creators of rap music—young men of color.”
The concern expressed in this brief is that the “reasonable listener” test turns on whether that listener has any knowledge about a “complex artistic and political genre of expression,” and the court is urged to reject that standard. The brief unpacks the rap tradition of “signifying,” in which intent itself is upended until “[a]n insult can be a compliment, a seeming threat just a mere joke.” This is the context in which to understand the rapper’s intent when GZA from the Wu-Tang Clan raps, “I’ll hang your ass with this microphone” or “I come sharp as a blade and I cut you slow.” This is less a threat of literal violence, say the authors, than a show of “virtuosity as a lyricist.”
The brief cites rapper Chuck D of Public Enemy, who once described rap as “CNN for black America,” and Queen Latifah, who has compared it to “a newspaper that people read with their ears.” The brief explores the real meaning of the words “Thug Life” tattooed across Tupac Shakur’s chest. It reflects upon the pressure on rappers to remain in character onstage and offstage, likening them to professional wrestlers. The brief notes the self-consciousness with which Marshall Mathers, in his persona as Eminem, plays with the distinction between looking like a criminal and actually being one when he raps “[i]t’s all political, if my music is literal and I’m a criminal, how the fuck could I raise a little girl? I couldn’t, I wouldn’t be fit to.” (Extra points for dropping the F-bomb in an amicus brief.) The brief goes on to note that “in June 2014, about twelve years after that song was released, Eminem’s ‘little girl,’ daughter Hailie Jade Scott Mathers, graduated Summa Cum Laude from high school” with a shout-out to her dad.
The brief notes that there is no meaningful difference between N.W.A.’s 1988 protest song “Fuck tha Police” (that’s two), and the constitutionally protected phrase “Fuck the Draft” (make it three) from the iconic 1971 Supreme Court ruling in Cohen v. California. It closes with a reference to John Sutherland, emeritus professor of English at University College London, who announced in 2012 that “in 20 years’ time, Tupac Shakur will be ranked with Walt Whitman as a great American poet.”
Will the rap brief change hearts and minds at the high court about the artistic merit of rap lyrics? Maybe. Rap had a big win just last month before the New Jersey Supreme Court in New Jersey vs. Skinner, a case that rejected the proposition that the rap lyrics written by defendant Vonte Skinner could be introduced into evidence to prove him guilty of attempted murder. At Skinner’s trial in 2008, the prosecutor read out 13 pages of violent rap lyrics to the jury, despite the fact that Skinner had written all of them before the shooting. The jury found Skinner guilty of attempted murder, and he was sentenced to 30 years in prison. But an appeals court overturned the conviction with the majority writing that “we have a significant doubt about whether the jurors would have found defendant guilty if they had not been required to listen to the extended reading of these disturbing and highly prejudicial lyrics.” And the Supreme Court of New Jersey agreed in August that the rap lyrics should not have been admitted into evidence. With a keen understanding that the author is not the criminal, the court wrote that, “One would not presume that Bob Marley, who wrote the well-known song I Shot the Sheriff, actually shot a sheriff.”
Disclosure: I serve on the board of the Thomas Jefferson Center for the Protection of Free Expression, and the Reporters Committee for Freedom of the Press, which have filed briefs on Elonis’ behalf in this appeal.
*Correction, Sept. 18, 2014: This article originally misspelled Ruth Bader Ginsburg’s last name. (Return.)