Write/Record A Rap Lyric, Go To Jail?
August 19, 2015
by Jerry Glover
CAUTION: This post includes explicit song lyrics
Two recent decisions have considered whether the lyrics of a rap song can be classified as threats under certain criminal statutes. One decision was handed down by the United States Supreme Court on June 1, 2015. The other, a decision from the California Court of Appeals, was issued on July 22, 2015.
The Supreme Court case, Elonis v. U.S., 2015 WL 2464051 (US June 1, 2015), involved a defendant whose wife left him after seven years of marriage and took their two children with her. Elonis actively used Facebook. After his wife left, Elonis began posting rap lyrics to his Facebook page. He even changed his Facebook user name to a rap-style name, “Tone Dougie.” Following several lyrics, Elonis posted a disclaimer stating that the lyrics were “fictitious” and “I’m doing this for me. My writing is therapeutic.”
The lyrics he posted included so-called threats to his former employer, an amusement park, which had fired him. He also posted lyrics about his wife including the following:
“Did you know that it’s illegal for me to say I want to kill my wife? …
“It’s one of the only sentences that I’m not allowed to say. …
“[B]ut what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. …
“But not illegal to say with a mortar launcher. …
“I also found that it’s incredibly illegal, extremely illegal to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room. …
“Yet even more illegal to show an illustrated diagram.” He included an accurate diagram of his wife’s home a part of the post.
After his wife saw that post, she felt afraid and got a state protection order. In another post, Elonis referred to that protection order in another set of lyrics:
“Fold up your [protection order] and put it in your pocket
“Is it thick enough to stop a bullet? …
“And if worse comes to worse
“I’ve got enough explosive
“To take care of the State Police and the Sheriff’s Department.”
At the end of the lyrics he included a link to a Wikipedia article on freedom of speech. Another post included the following:
“I’m checking out and making a name for myself
“Enough elementary schools in a ten mile radius to initiate the most heinous school shooting every imagined
“And hell hath no fury like a crazy man in a Kindergarten class
“The only question is … which one?”
After the FBI was notified about these posts, two agents visited Elonis. After this visit, Elonis posted the following:
“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.
“Leave her bleedin’ from her jugular in the arms of her partner …
“Cause little did y’all know, I was strapped wit’ a bomb…
“I was jus’ waitin’ for y’all to handcuff me and pat me down
“Touch the detonator in my pocket and we’re all going
“Are all the pieces comin’ together?
“Shit, I’m just a crazy sociopath that gets off playin’ you stupid fucks like a fiddle
“And if ya’ll didn’t hear, I’m gonna be famous
“Cause I’m just an aspiring rapper who likes the attention
“Who happens to be under investigation for te3rrorism cause y’all think I’m read to turn the Valley into Fallujah
“But I ain’t gonna tell you which bridge is gonna fall into which river or road
“And if you really believe this shit
“I’ll have some bridge rubble to sell you tomorrow
“[BOOM!] [BOOM!] [BOOM!]”
Elonis was indicted under a federal criminal statute for making threats to injury patrons and employees of his former employer, his estranged wife, police officers, a kindergarten class and an FBI agent. The jury was instructed that Elonis could be convicted under the federal statute if a reasonable person would regard the communication as a threat. Elonis was convicted. The trial court and eventually the US Court of Appeals for the Third Circuit held that the statute required only that Elonis intentionally made the communications, not that he intended to make a threat. The US Supreme Court reversed the conviction.
The federal statute states that an individual who “transmits in interstate or foreign commerce any communication containing any threat to kidnap any person or any threat to injure the person of another” is guilty of a felony. 18 U.S.C. Sec. 875(c). The Supreme Court stated that the issue in this case was whether the statute “also requires that the defendant be aware of the threatening nature of the communication … .”
The Court noted that the statute did not state that the defendant had to have any particular mental state nor did it state that the defendant must intend that the communication contains a threat. The Court noted that a basic principle of construing a criminal statute, however, requires that wrongdoing must be conscious to be criminal. This means the defendant must be “blameworthy in mind” or as is often stated the defendant must have a specific mens rea, scienter, malice aforethought, guilty knowledge, etc.
But the Court added that a defendant must know the facts that make his conduct fit the definition of the offense even if the defendant doesn’t know his conduct is a crime. The Court added that in addition to knowing that he is transmitting a communication he must know that the communication is of a threatening nature. Since the Court construed the statute to include an intent requirement, it did not have to address the First Amendment issue since the free speech clause does not prohibit prosecution for intentional threats. As already noted, the Court reversed and remanded the case.
In the second case, a defendant was charged with violating California Penal Code Section 140 which states that a person “who willfully uses force or threatens to sue force or violence upon … a victim of  a crime…because the …victim … has provided any assistance or information to a law enforcement officer or to a public prosecutor in a criminal proceeding ..l. [can be punished up to one year in the county jail].”
In this case, People v. Murillo, 190 Cal. Rptr. 3d 119, 238 Cal. App. 4th 1122 (2015), the defendant’s friend had been convicted of the rape of two high school students. Murillo posted a recording of lyrics he wrote on his Facebook page in tribute to that friend. Some of his postings included the friend’s name and the names of the rape victims describing them as “hoes.” The lyrics also stated:
“These bitches caught him slippin
“The 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 [sic]
“It will be hanging on my wall
“I said go and get the Feds \
“Cuz your [sic] gonna to end up dead
“You’re going be laying on that bed
“Cuz im coming for your head bitch.”
After one of the rape victims listened to this lyric (although she had to listen to the recording several times to understand the lyrics), she told her mother who contacted the police. Murillo was arrested and charged with violating the threat statute.
A magistrate and then the trial court held that the lyrics were harassing but those same lyrics did not establish the element of a willful threat to use force against the victims. The trial court also noted that the rap song “is closer to protected speech [under the First Amendment] than non-protected speech.”
The appellate court pointed to a California Supreme Court decision, People v. Lowery, 52 Cal. 4th 419 (2011), which held` that Section 140 applies only to those statements “which a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, a serious expression of an intent to commit an act of unlawful violence rather than an expression of jest or frustration.” The appeals court added that Lowery also noted that this statute 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 concluded that a reasonable listener could have understood the lyrics in question to constitute a true threat to the rape victims. The defendant asked the court to determine the requirements of the California statute in view of the US Supreme Court decision in Elonis, but the appellate court stated that (1) that case construed a federal statute and (ii) the appeals court was bound by the California Supreme Court’s Lowery decision.
So what’s the lesson to be learned? Musicians, amateur or professional, must now realize that their lyrics (standing alone or as part of a recording) can be the subject of criminal prosecution if directed at an identified person or group of persons even if posted to a public site which is not specifically directed at that group or individual. As the California appeals court noted, even though the medium may be the message, a court “determines the nature of the message whatever the medium.”