Art or evidence? Closest U.S. Supreme Court has looked at rap lyrics is for ‘true threat’

Grethel Aguila | Miami Herald (TNS)

The closest the U.S. Supreme Court has come to assessing whether rap lyrics can be used in prosecutions was in a case where it looked at whether they were a “true threat” that made someone believe they would be seriously harmed.

In 2014, the nation’s highest court heard the case of Anthony Elonis, marking the first time the justices reviewed a true threats case involving lyrics.

Elonis had been found guilty of posting on Facebook rap lyrics containing violent language and imagery concerning his ex-wife, coworkers and law enforcement. The U.S. Supreme Court reversed Elonis’ conviction and ruled that prosecutors must prove that a defendant intended to carry out alleged threats.

Another Supreme Court decision from June of this year will likely influence how these types of cases are handled in the future, said Clay Calvert, a professor of law and the former director of the Marion B. Brechner First Amendment Project at the University of Florida. The court took up the case of Billy Raymond Counterman, a Colorado man who appealed a more than four-year sentence for stalking a local singer-songwriter and flooding her with messages on Facebook.

Music is protected First Amendment speech as long as it’s not obscene, defamatory or a threat, Calvert said. But experts, advocates and some legislators are concerned that the use of rap lyrics in criminal prosecutions violates the right to free speech — an issue the Supreme Court has yet to clarify.

How does artistic expression, a protected form of speech, make it to courtrooms?

Can lyrics be a crime?

For rap legend Uncle Luke, the leader of the Miami-based 2 Live Crew, rap lyrics have long been weaponized to go after artists.

In 1990, 2 Live Crew’s raunchy music was at the center of a legal battle that tested the bounds of free speech.

Jurors had to decide if the group’s “vulgar and disgusting” lyrics, including platinum album “As Nasty As They Wanna Be,” known for smash hit “Me So Horny,” were obscene. The artists were facing jail time because their lyrics were considered a crime. The jury acquitted them.

“I’m like a proud father of hip-hop that’s not getting any credit, but I’m proud of fighting that fight,” Luke said. “If I don’t do that, if I don’t take on that fight, then we probably won’t be here right now and a lot of artists would be getting just straight locked up for lyrics.”

The way rap lyrics are approached when considered a crime differs from the 2 Live Crew era. Now, they’re being used in prosecutions to show that someone believed they would be harmed and so were true threats, which aren’t protected by the First Amendment.

The U.S. Supreme Court has heard true threat cases not involving lyrics over the years, but the only guidance offered on the use of lyrics is in the Elonis and Counterman cases.

In the Counterman case, the court ruled that prosecutors must prove that the defendant understood that the statements were threatening but made them anyway. Counterman’s stalking conviction was thrown out after a 7-2 decision.

“What the Supreme Court has made clear is that it’s not just how would a reasonable person interpret the lyrics,” Calvert said. “But you also have to look at now … did the speaker consciously disregard a high risk that they would be understood as threats?”

Can race play a role?

Supreme Court Justice Sonia Sotomayor, in a written opinion in the Counterman case, delved into the dangers of equating violent lyrics to threats — even if a threat wasn’t intended. She reflected on how that could lead to the overcriminalization of minority communities.

According to the Rap on Trial project, only about 2% of documented cases in which rap lyrics are mentioned involve white defendants. The bulk of those concern lyrics as threats.