Hip-hop hassle: How the lyrics of two violent rap songs could redefine your online free-speech protections

Anthony Elonis, a Pennsylvania man in the midst of losing his job and his wife, turned to Facebook to write violent rap lyrics under the pseudonym Tone Dougie. He was subsequently arrested in December 2010 after his estranged wife and law enforcement found his lyrics were threatening.

In his lyrics, Elonis described killing his wife, shooting a kindergarten class, bombing local law enforcement agencies and killing an FBI agent who visited his house.

“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,” Elonis wrote in one of his songs.

But Elonis, who was arrested and charged with domestic violence related simple assault and harassment in April, claimed his lyrics were therapeutic and he had no intent to go through with any of the actions described. Elonis brought a First Amendment claim to the Supreme Court, arguing his words were not true threats because he lacked intent to commit a crime.

Scott Colom, an attorney who represents Taylor Bell, a former high school student in Mississippi who was suspended over a rap song, said he’s concerned on how the Supreme Court’s ruling will affect his client’s case.

On June 1, the Supreme Court ruled that Elonis’ intent behind his Facebook posts must be considered because he was convicted under a criminal statute, adding that basing his conviction on whether a reasonable person would find his posts threatening “is inconsistent with ‘the conventional requirement for criminal conduct — awareness of some wrongdoing,’” according to the opinion. The Court reversed and remanded Elonis’ conviction.

In 2011, Bell, then a student at Itawamba Agricultural High School, was suspended from school because he recorded a profanity-filled rap song about two coaches at his school who allegedly made sexual comments about girls’ bodies.

“Looking down girls’ shirts / Drool running down your mouth/ You fucking with the wrong one / Going to get a pistol down your mouth,” Bell wrote in his song.

Bell posted the song on Youtube and Facebook. In response, school officials claimed the song threatened the coaches. Bell and his mother filed suit against the superintendent and the school’s principal, arguing the suspension violated Bell’s First Amendment rights. The SPLC filed an amicus brief in support of Bell in June 2012.

The Supreme Court did not address the First Amendment issues of the case or specify what standard lower courts should use to judge if speech is a true threat, which is speech with the intent to inflict harm and is not protected by the First Amendment. However, the Court ruled that negligence, or Elonis’ failure to foresee that his speech would be perceived as threatening, was not enough to convict him of a true threat charge.

David Greene, the senior staff attorney and civil liberties director at the Electronic Frontier Foundation, a non-profit organization that defends civil liberties online that cosigned the Student Press Law Center’s amicus brief in the Elonis case, said while the Supreme Court’s ruling did address some of his worries, he’s still concerned over the effect Elonis might have on student social media speech.

The history and culture of rap music

Both Elonis’ and Bell’s allegedly threatening speech were in the form of rap lyrics, which is a historically violent music genre, said Erik Nielson, an assistant professor at the University of Richmond specializing in the culture and history of rap.

Eminem, a popular rapper brought up by Chief Justice John Roberts at the Elonis oral arguments in December, is known for his violent lyrics, often talking about harming or killing his wife.

“Da-da made a nice bed for mommy at the bottom of the lake / Here, you wanna help da-da tie a rope around this rock? (yeah!) / We’ll tie it to her footsie then we’ll roll her off the dock,” Eminem wrote in his song, Just the Two of Us.

Nielson, who filed an amicus brief in support of Elonis, said rap music started as an artistic alternative to physical violence, but due to ignorance about the genre, aspiring rappers are often misunderstood and oftentimes prosecuted.

“We’re seeing a new breed of case in which rap lyrics themselves are the crime in which the contents of the lyrics form the sole basis of the charge usually as some sort of threat,” Nielson said.

Nielson said rap music has culturally helped reduce violence in neighborhoods known for gang violence and aspiring rappers should be free to pursue this form of expression.

“That’s not to say that I endorse truly threatening speech,” Nielson said, “but if somebody is going out of his or her way to frame it in artistic terms particularly in a genre that uses violent rhetoric, I think we need to be much more careful about who we kick out of school or who we send to jail when we’re just talking about speech.”

An intent to be threatening

Though the Supreme Court ruled that negligence was not enough to convict someone of a true threat, it did not specify what standard courts should use when deciding true threat cases. True threats can be judged under the subjective standard — if an individual intended for his speech to be threatening — or the objective standard — if a reasonable person would perceive the speech to be threatening, regardless of the speaker’s intent — said Lauren Jones, the assistant director of legal affairs for the Anti-Defamation League, a civil rights advocacy group who filed an amicus brief against Elonis.

Jones argues that courts should use the objective standard to judge threatening speech online because it’s hard to judge someone’s intent without being able to hear their tone of voice or read their body language.

“It becomes much more difficult to prove what a person was thinking when they posted something on social media and yet the impact on the victim is the same,” Jones said. “There can be the same amount of fear and the same amount of real distress coming from statements online.”

Greene argued courts should use the subjective standard, adding that the hazard of taking the objective standard is that cultural differences between the speaker and the recipient are not taken into account.

“Cultural differences can include the differences between how young people and older people talk,” Greene said. “A statement made by a young person, which to that person would not seem to be threatening, might be interpreted by an older person as very threatening and vice versa.”

Another argument against the objective standard, particularly when it comes to social media speech, is that the original context of the speech can be easily lost as the speech is shared and disseminated to different people very quickly, Greene said.

“So a statement that when it was first made it was very clearly rhetoric or sarcasm, by the time it reaches the recipient who feels threatened, it has become something very different,” Greene said. “That’s why we thought the subjective standard, which requires an inquiry into the intent of the speaker, was important.”

Effects of Elonis on student speech

The Itawamba County Board of Education and the U.S. District Court for Northern District of Mississippi upheld Bell’s suspension. The U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision in December 2014, but the court reheard the case in May.

In 2011, Bell was suspended from school because he recorded a profanity-filled rap song about two coaches at his school who allegedly made sexual comments about girls bodies. Bell posted the song on Youtube and Facebook. The school claimed the song threatened the coaches. Bell and his mother filed suit against the superintendent and the school’s principal, arguing the suspension violated Bell’s First Amendment rights.

Greene said the Supreme Court’s ruling in Elonis did not address all of the concerns when it comes to student speech. While the ruling clarified that a speaker’s state of mind must be considered when charging them under the federal threat statute, the Court didn’t address any state threat statutes or the constitutional true threat doctrine.

“What we were very concerned with was that the Supreme Court would say something bad,” Greene said. “It didn’t say anything bad about the constitutional doctrine. What we’re not sure is how much it has changed the status quo.”

Greene said most student true threat cases are dealing with state law, which was not addressed in the Supreme Court’s ruling. While most state cyberbullying laws do not criminalize students’ online speech, 10 states have laws laws that classify cyberbullying as a misdemeanor offense.

Colom said the Supreme Court has not ruled over school districts’ jurisdiction over student speech outside of school. The circuit courts have been divided about whether the standard set in Tinker v. Des Moines Independent Community School District covers off-campus speech. Under the Tinker ruling, school officials may not censor student speech unless it causes a substantial or material disruption to the educational operation of the school.

Twenty states use the Tinker standard in their cyberbullying or cyberharassment laws, while 17 do not. There are 13 states whose laws are unclear as to whether they fall under Tinker.

Colom said if the court of appeals rules that Bell’s suspension was constitutional, Bell would like to appeal to the Supreme Court.

“I think that this issue is ripe for Supreme Court review,” Colom said. “At some point, the Supreme Court has to step in and say what authority do school districts have over student speech made away from school.”