Rappers and their violent lyrics have been a topic of some contention in the USA recently, and now an aspiring California rapper’s online lyrical rant targeting two rape victims “has landed him in legal hot water in a prosecution testing whether his threatening lyrics were protected speech or a criminal act.”
Some lyrics have been about the rappers own history: Back in December 2014 HipHop Dx reported that rapper Tiny Doo was facing criminal charges because his “No Safety” album implied that the rapper has gang ties. Doo (Brandon Duncan) was charged under laws that make it an offence to benefit from the violent actions of fellow gang members. Whilst Duncan had no criminal record, he and 14 other members of the gang were being charged for being involved in nine shootings since April 2013. Prosecutors said that Tiny Doo’s “No Safety” album sales have been supported by the reputation of the gang.
HipHopDx also reported that lyrics and music videos were used in the trial of Ra Diggs, with the judge saying it was permissible in order to prove “a pattern of criminal activity.” In addition, Vonte Skinner, the defendant in a 2008 trial for his involvement in a 2005 shooting had 13 pages of his lyrics, composed before the shooting, admitted as evidence to show his ‘propensity for violence’. The lyrics did not mention the victim or specific details of the crime but were ruled admissible by the trial judge. But its a balancing act for the courts: In 2012, Skinner’s conviction was overturned by an appellate court that ruled the lyrics shouldn’t have been admissible in the trial. That majority opinion stated, “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.” In January 2014 the state appealed the ruling to the New Jersey Supreme Court. In August 2014 The New Jersey State Supreme Court held by a vote of 6-0, that the attempted murder conviction of “aspiring rapper and small-time drug dealer” Vonte Skinner must be overturned, saying that the extensive reading of Skinner’s violent rap lyrics during his trial unfairly prejudiced the jury. The Court wrote “…the violent, profane, and disturbing rap lyrics authored by defendant constitute highly prejudicial evidence against him that bore little or no probative value as to any motive or intent behind the attempted murder offense with which he was charged.
However, and based largely on a rap he wrote, and accounts of two witnesses given years after the shooting, rapper Antwain Steward was arrested and charged with double murder – and whilst in custody facing trial was asked why his lyrics were violent. Steward explained that his lyrics reflected his life and what was expected in the ‘land of hard core rap’. He was found not guilty of murder but was convicted on a weapons charge. In some cases, such as that of Derek Green, where a clear and unequivocal link between lyrics and a criminal charge can be shown (here Green rapped about killing his wife) the lyrics will be admitted. Green was sentenced to life.
However the real interest in the digital age has been the posting of ‘threats’ and other violent messages that target individuals through lyrics. The Supreme Court of the United States recently gave its judgment in a case violent, threatening and menacing messages were allegedly posted by an ex-husband, one Anthony Elonis, on Facebook after he and his wife separated which he says was just ‘blowing off steam’ under his pseudonym Tone Dougie and should be protected as free speech under the First Amendment – although the First Amendment does NOT cover ‘true threats’. Elonis was indicted by a grand jury on five counts of threats to: park employees and visitors, local law enforcement; his estranged wife; a female FBI agent; and a kindergarten class, relayed through interstate communication. In one post, Elonis wrote:
“I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”
and in another directed at the FBI agent:
“Little Agent Lady stood so close; took all the strength I had not to turn the bitch ghost; pull my knife, flick my wrist, and slit her throat.”
Mr Elonis’s lawyers said that the meaning of so called threats (and indeed some rap lyrics) must “turn on the speaker’s intent.” On June 1st, 2015, the Supreme Court reversed Elonis’ conviction in a 7-2 decision. Chief Justice John G. Roberts wrote for a seven-justice majority saying mens rea was required to prove the commission of a crime and overturned the 44-month sentence and three year supervised release order handed down to the Pennsylvania man (Elonis v United States 13-983 U.S).
In the latest case, California rapper Anthony Murillo is facing criminal charges under state law resulting from lyrics he released in 2013 for the track “Moment for Life Remix”. In his lyrics he verbally attacked two high school sexual assault victims—victims of one of his close friends who was jailed for the crimes. He linked to his rapping video, in which he identified the underaged girls by name and called them “snitches” on Facebook and Twitter. He then posted the video to the music site ReverbNation, where his profile photo showed him holding a shotgun. “Moment for Life Remix” was removed from ReverbNation after being posted for 26 days and played nearly 24,000 times. The lyrics read:
“[T]hese bitches caught him slippin’ / Then they fuckin’ snitchin’ / . . . I’m fucking all these bitches / Hunting down all these snitches / . . . Shit, you know we have no fear / I’ll have your head just like a dear / It will be hanging on my wall / . . . I said go and get the Feds / ‘Cause you’re gonna end up dead / You’re going to be laying on that bed / ‘Cause I’m coming for your head, bitch.”
A California trial judge dismissed the two-felony count case. The judge called the lyrics “misogynistic” and “vulgar” but nevertheless ruled they were protected speech and therefore did not constitute a wilful threat. Murillo maintained that he did not intend to harm the rape victims by creating, singing, or posting the song. In this case California prosecutors appealed, arguing that the song expressed his intent to commit acts of violence. A California appeals court agreed with prosecutors. The appellate court said it was not bound by the Supreme Court because California state law, not federal law, was at issue. The rapper’s mental state, the court concluded, is not a factor like it was in the case the Supreme Court decide and that California’s law “does not require that a threat to harm a crime witness or victim be immediate or that the defendant has the apparent ability to carry out the threat.” The court said that the “Moment for Life Remix” song “could be understood to convey a serious expression of intent to commit an act of unlawful violence against the girls.”
Elonis v United States 13-983 U.S http://www.scotusblog.com/case-files/cases/elonis-v-united-states/ and https://en.wikipedia.org/wiki/Elonis_v._United_States
and see http://www.nytimes.com/roomfordebate/2014/12/03/should-facebook-do-more-to-monitor-violent-expressions/a-potential-censorship-or-criminalization-of-rap-music