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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Comments on “Supreme Court Again Ducks A Chance To Clarify First Amendment Protections”

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25 Comments
Zgaidin (profile) says:

Re: 1stAmmending

I think the more relevant question is, what good is a Supreme Court that repeatedly refuses to answer important constitutional questions. The top court has always had a reserved, cautious approach to what cases it hears, as it should, but for the last several decades we’ve seen that trend start to shift to something that looks a lot more like cowardice at times.

Dan (profile) says:

The correct standard to use was mens rea, meaning the government needed to prove Elonis knew his posts were illegal

"Correct standard" according to whom? You? Since you don’t seem to know what mens rea is (tip: it isn’t "Defendant knew what he was doing was illegal"–as the very definition you linked to shows), I’m not inclined to accept you as an authority on the subject.

In the current case, sounds like an entirely appropriate result. And if it’s characteristic of "rap music" (sic) to threaten death to specific individuals by name, the sooner it goes away the better.

James Burkhardt (profile) says:

Re: Re:

From the link:

The mens rea requirement is premised upon the idea that one must possess a guilty state of mind and be aware of his or her misconduct; however, a defendant need not know that their conduct is illegal to be guilty of a crime. Rather, the defendant must be conscious of the “facts that make his conduct fit the definition of the offense.”

So while true that he did not need to know the threats were illegal in the cited case, the correct standard was that the defendant needed to intend his statements in a way they constituted "genuine threats". It is true that this is somewhat misstated in the article.

I applaud you for highlighting the way the article misstates this, but do not applaud your combative conclusions.

"Correct standard" according to whom? You? Since you don’t seem to know what mens rea is (tip: it isn’t "Defendant knew what he was doing was illegal"–as the very definition you linked to shows), I’m not inclined to accept you as an authority on the subject.

if we read the full statement:

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.

It is clear the authority being claimed is not Tim’s, but the SCOTUS’s decision on the matter. The supreme court, in the case cited, found the correct standard was Mens Rea. Your choice to strip that context either highlights a massive failure in reading comprehension, or bad faith arguementation. In either case, I am not inclined to accept you as an authority in this statement:

In the current case, sounds like an entirely appropriate result. And if it’s characteristic of "rap music" (sic) to threaten death to specific individuals by name, the sooner it goes away the better.

Your argument abandons the genuine threat requirement and the mens rea standard for criminality. Rap music is commonly filled with bluster of the type you might find in people talking with their friends. Shitting on a cop who you felt did wrong is in fact a common thing you might do. You might even bullshit about killing or harming that cop. But until it is a genuine threat, it is legal. Much as Trump throwing lies around on twitter isn’t defamation because its trump and its twitter, a rap musician expressing his negative emotions via violent imagery isn’t a threat, because someone familiar with rap music is aware that rap musicians use violent imagery to express themselves without then following through.

Thad (profile) says:

Re: 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

Anonymous Rog S says:

Re: Re: Re: Re:

You make a great argument for all those “Anonymous” dirty cops, private contractors, community policing factions like the ADL speech police, and .mil trolls who stalk, threaten, and endlessly harrass and attempt to incite named suspects and targeted individuals online and off, using social media monitoring from Fusion Centers.

You stupid, fallow, waffling, pasty pussy, Im gonna fuck you, blue…..????????????????????

Since when is a song a threat, ever?

https://en.wikipedia.org/wiki/Joe_Hill

someoneinnorthms (profile) says:

Re: Re:

Dan, you must be a second-year law student. Lighten up. Non-lawyers should be forgiven for their lack of indepth knowledge of the obtuse, counter-intuitive body of knowledge that we lawyer types live in. This is one of the best blogs I know, and you shouldn’t disparage it over one minor mistake. It is EASY to know what the author intended by using your context clues. C’mon, man. If you think the blogosphere needs actual, pinpoint accuracy (like a legal brief), create one yourself. This literary faux pas is like forgetting the comma after using the word "however." Let it pass in favor of understanding the spirit of the entire post.

Coyne Tibbets (profile) says:

Re: Re:

According to the Supreme Court, which held:

In light of the foregoing, Elonis’s conviction cannot
stand. The jury was instructed that the Government need
prove only that a reasonable person would regard Elonis’s
communications as threats, and that was error. Federal
criminal liability generally does not turn solely on the
results of an act without considering the defendant’s
mental state. That understanding “took deep and early
root in American soil” and Congress left it intact here:
Under Section 875(c), “wrongdoing must be conscious to be
criminal.
” Morissette, 342 U. S., at 252.

…which is mens rea.

Anonymous Coward says:

Re: Sorry Tom but no

The Elonis decision is the same stupid logic that brought us qualified immunity. The guy knew what he was doing was wrong but he did it anyway, same way corrupt officials know what they are doing is messed up.

Wow, that is a HUGE leap to go from rap music lyrics to professional law enforcement officers violating your constitutional rights!!!

Thad (profile) says:

Re: Re:

Regardless of what you think of the conservative majority on the Roberts Court (and I’m not a fan), they’ve generally taken a pretty expansive view of the First Amendment.

Granted, the article I just linked was written before Gorsuch or Kavanaugh joined the court, and it’s too early to get a bead on them yet. But Roberts has been very strong on the First Amendment. Thomas generally has too, though his recent remarks about defamation of public figures are troubling. Alito’s record is a little more mixed (he’s shown a willingness to introduce new categories of unprotected speech where Roberts and Thomas haven’t), he seems to take pro-free speech positions more often than not.

Bamboo Harvester (profile) says:

Re: Re:

What goes around comes around. They’ve been unable to understand the word "infringed" for what, fifty years now?

The Second Amendment is definitively clear when compared to the First. The First is more nebulous in it’s exclusions – hence we get "protection of sources" laws under it when it makes no such statement.

Worse yet, "emanations from a penumbra". Note to the hysterics: I’m not talking about abortion, but a SCOTUS inventing things out of thin air to support a political platform.

You really, REALLY don’t want a SCOTUS, ANY SCOTUS reading too much into what the document actually says.

If you disagree, think about your "Unlimited" cell phone plan…

Rog S. says:

re: SCOTUS as Vatican mouthpiece

The court has three Jews, five Cathiolics, one Episcopalian.

But of course, we dont discuss the (massive, repressive) forces of religion in politics in polite society…another win for Jewish-catholic-neocon unspecified, as they collude to steal another generation of children.

Free speech, dontchaknow, leads to reason….and, the aforementioned knowlege about who it is EXACTLY that restricts reason.

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