Supreme Court Again Ducks A Chance To Clarify First Amendment Protections

from the rap-on-brother-rap-on dept

The First Amendment is getting no help from the nation's highest court. Yet again, the Supreme Court is declining an opportunity to answer a very important question about free speech: where is the dividing line between threats and violent -- but protected -- speech?

The Supreme Court already punted on this issue in 2015 with the Elonis v. United States case. In that case, Anthony Elonis posted a bunch of nasty stuff online about his ex-wife. He ended up being jailed for these, with the court finding his posts -- which he claimed were merely him venting in the form of ultraviolent rap lyrics -- constituted threats.

His appeal went all the way to the top but the Supreme Court had nothing for him. It did overturn his conviction, but it left the First Amendment question unanswered. The Supreme Court said the trial court adhered to the wrong negligence standard -- one that said Elonis should have known his posts were threatening if any "reasonable person" would find them threatening. The correct standard to use was mens rea, meaning the government needed to prove Elonis knew his posts were illegal (i.e., that they were "genuine threats") when he posted them.

As for the First Amendment, the Supreme Court seemed happy to avoid this issue completely. Having decided the wrong standard was used by the trial court, the Supreme Court declared it did not need to hand down an opinion on the First Amendment implications, leading to the mess we're in now, with lower courts drawing disparate conclusions about the line between threats and protected speech.

The mess will continue. Pittsburgh rap artist Jamal Knox was jailed for the lyrics of his song "Fuck the Police." An obvious tribute to the 1988 N.W.A. track, Knox's song included the names of two officers that had previously arrested him and some very descriptive violent acts involving them.

Knox and Beasley's song, posted on Facebook and YouTube, included the names of the two Pittsburgh officers who arrested them with lyrics like, "I'ma jam this rusty knife all in his guts and chop his feet" and "Well your shift over at three and I'm gonna f*** up where you sleep."

The song ended, "Let's kill these cops cuz they don't do us no good."

The officers testified that the lyrics made them "nervous" and concerned for their safety, with one saying it led him to leave the police force.

On the basis of the cops' subjective response to the song's lyrics, Knox was sent to prison for two years. (His sentence also included drug and gun charges.) Knox argued his lyrics were part of his rap persona and that he was not trying to threaten the officers, much less try to bring his violent lyrics to life. The state supreme court upheld the conviction, apparently because the justices had never heard a rap song in their lives.

"...The rap song here is of a different nature and quality," the court's chief justice wrote in the majority opinion.

"They do not include political, social, or academic commentary, nor are they facially satirical or ironic. Rather, they primarily portray violence toward the police," the opinion read.

This rationale was rebutted in a masterful understatement in the rapper's brief to the Supreme Court:

The rappers, in their brief filed Wednesday, said that the opinion "reveals a court deeply unaware of popular music generally and rap music specifically."

We'll never find out whether the SCOTUS justices are a bit more up on today's urban music, unfortunately.

The Supreme Court declined Monday to take up the case of rapper Jamal Knox, who argued he was sent to prison for a song that was protected by the First Amendment.

By avoiding the issue for now, the justices left for another day a look at the contours of so called "true threats" -- speech that falls outside the protections of the First Amendment.

That's a shame. Thanks to its disinterest, we're just going to have to throw the greatest rap collaboration track ever released in the trash. The amicus brief sent to the unreceptive court was penned by some lawyers and legal scholars. Oh, and these guys:

Additional amici include musical artists Chancelor Bennett (“Chance the Rapper”), Robert Rihmeek Williams (“Meek Mill”), Mario Mims (“Yo Gotti”), Joseph Antonio Cartagena (“Fat Joe”), Donnie Lewis (“Mad Skillz”), Shéyaa Bin AbrahamJoseph (“21 Savage”), Jasiri Oronde Smith (“Jasiri X”), David Styles (“Styles P”), Simon Tam (member of The Slants and petitioner in Matal v. Tam, 137 S. Ct. 1744 (2017)), and Luther R. Campbell (member of 2 Live Crew and petitioner in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994)), as well as music industry representatives Alan Light (former Editorin-Chief, Vibe and Spin magazines), Dina LaPolt, Patrick Corcoran, Peter Lewit, and the entertainment company Roc Nation, LLC.

I guess the First Amendment will have to wait for another test case the Supreme Court can't wait to bypass. We need to have this question answered. Rap music -- and those inspired by it -- is something that just isn't going to go away.. Until SCOTUS finally decides it's going to answer some difficult questions, all we really have left is this GIF:

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Filed Under: 1st amendment, free speech, jamal knox, lyrics, music, rap, supreme court


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  1. icon
    Thad (profile), 19 Apr 2019 @ 12:11pm

    Re: Re: Re:

    If I were the officers, I would feel threatened.

    That's one factor in true threat analysis, but it may not be the only factor. There's court precedent for an objective test (which is what you're describing) and a subjective test (which requires intent). Ken White's written about this a good bit under the true threats tag at Popehat. This one may be relevant, though it's from 2013 and predates the Elonis ruling:

    True Threats, True Incitement, Or Truly Crazy? The Rhetoric of Deranged Cyberstalker Bill Schmalfeldt


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