Taking the Rap for Free Speech?

 

Imagine that you are walking on your way to work. As usual, you listen to your iPod as you walk. Unconsciously, you begin to sing along to your favorite song, which just so happens to be Bob Marley’s classic “I Shot the Sheriff.” By the time you get to the chorus, you are singing audibly and people around you are starting to notice. Suddenly you see a police officer in front of you. You are under arrest for threatening a public officer. This is the world that the petitioner in Elonis v. United States, a case currently before the Supreme Court, would contend awaits if the Supreme Court holds against him.

The petitioner, Anthony Elonis, began posting violent diatribes on Facebook after his wife left him and took their children with her. One representative post stated: “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.” There were many others in a similar vein, including some posted directly after he was served with a protection-from-abuse order. On the other hand, some of Elonis’s posts included disclaimers and at least one of them copied a comedy sketch nearly line for line.

When Elonis was arrested, however, the lower courts held that his subjective intent did not matter. Rather, the courts determined that the proper standard was whether a “reasonable person” would take the threats “as a serious expression of an intention to inflict bodily injury or take the life of an individual.” Petitioner alleges that the standard should be whether the person making the alleged threats had the subjective intent to threaten. The lower courts are split on this issue. The conflict in this case is based on a tenet known as true threat doctrine. The Supreme Court ruled in Watts v. U.S., 394 U.S. 705 (1969), that “true threats” do not receive 1st Amendment protection. The Court has never clearly defined what constitutes a “true threat.” In the years since Watts, the closest the Court came to defining this doctrine came in Virginia v. Black, 538 U.S. 343 (2003), when the Court held that burning a cross was not protected speech if it was done with the intent to intimidate. However, the Court has not yet provided a clear test for determining what constitutes a “true threat.” As a result, some states have a subjective mens rea requirement while others merely require that an utterance would provoke mortal fear in a reasonable person.

Another tangle in this already knotted issue is that Elonis contends that his posts were rap lyrics and hence should be protected as artistic expression. This brings two difficult issues to the fore. First, when does legitimate artistic expression cross the line to illegal threats? Second, does the law afford rap less leeway than its musical peers?

The first issue threatens to spiral out of control if not reined in tightly. Artistic expression, even when violent or disturbing, is a treasured value. Construed on their face, statutes that use a “reasonable person” standard in determining what constitutes a threat could lead to situations in which artists with unpopular or misunderstood art could face criminal charges. For example, Louis C.K., a comedian, has a standup routine in which he discusses how driving can lead to homicidal rage. The routine is clearly meant in jest. Yet, under the objective standard, one could countenance a possible charge based on C.K.’s routine. Obviously, this is an unlikely scenario but it becomes less unlikely when you swap out comedy for rap. In the status quo, prosecutors use defendants’ rap lyrics against them in court to demonstrate a tendency towards violence. One of the prosecutors who favored using such tactics more often in a paper for the American Prosecutors Research Institute suggested that using a defendant’s rap lyrics would help show the jury that the defendant is “a criminal wearing a do-rag and throwing a gang sign.” The racial component to the “objective” standard for classifying a “true threat” is hence uniquely troubling.

Ultimately, the Supreme Court should hold in favor of a standard favoring subjective intent. If the Court defers to an objective standard based on what a “reasonable person” would find threatening, it will create an impermissible risk of imprisoning people who never intended to commit crimes. This especially holds true for minorities and others that face prejudice in society. To illustrate this proposition, let us return to my opening example. Imagine now that you are African American and dressed in a hoodie. Instead of “I Shot the Sheriff,” you are rapping along to “Straight Outta Compton” by NWA. Suddenly, a cop confronting you becomes far more ominous. The penalties for what could be an honest misinterpretation of one’s intent are not small. Elonis received nearly four years in prison for his posts. With so much at stake and so much potential for prejudice, the onus for determining whether someone has uttered a “true threat” should not reside entirely in a party who did not utter the words in question.

One might argue that the law cannot easily determine subjective intent. Yet most jurisdictions regularly conduct this process when they determine if a defendant should be convicted of murder or manslaughter, to name just one example. A jury may very well find, based on the evidence, that petitioners like Elonis intended their words as threats. Obviously, in his particular case, the fact that these lyrics were directed towards his estranged wife would probably carry significant weight. Yet people like Elonis should be given the chance to demonstrate that they meant no harm.  Otherwise, numerous defendants, particularly minorities, could be made to eat their words in prison.

Written by

Alex is a 2L at HLS. He is particularly interested in criminal justice and its effect upon civil liberties. He worked at Greater Boston Legal Services in the summer of 2014 and worked at a plaintiff's side employment firm during the fall of 2014. Prior to law school he interned at the Rhode Island Public Defender and received a B.A. in history and politics from Brandeis University.

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