Now in Legal Rebels:
Posted Aug 28, 2014 10:45 am CDT
An amicus brief by rap music scholars aims to help the U.S. Supreme Court decide when violent Facebook rants become a “true threat” that isn’t protected by the First Amendment.
The amicus brief (PDF) was submitted on behalf of Anthony Elonis, who was sentenced to four years in prison under a federal law barring the interstate transmission of threats to injure another, Ars Technica reports.
Elonis wrote about killing his estranged wife, an FBI agent investigating his posts and former co-workers at an amusement park. He also referenced the First Amendment and wrote disclaimers, saying his posts were fictitious lyrics and didn’t reflect his views, values or beliefs. One of his posts, Elonis testified, was a reference to an Eminem song fantasizing about participating in the Columbine school shootings.
Rap music scholars Erik Nielson of the University of Richmond and Charis E. Kubrin of the University of California at Irvine say the dispute resides at the intersection of rap music and alleged threats. In an amicus brief filed with the Marion B. Brechner First Amendment Project, they call rap “a powerful new poetry” that has given voice to marginalized people.
“Rap music resides squarely within a long tradition of African-American storytelling and verbal competition, one that privileges exaggeration, metaphor, and, above all, wordplay,” the brief said. “Underlying this tradition is the practice of signifying, or the obscuring of apparent meaning; in the process of signifying, ambiguity is prized, meaning is destabilized, and gaps between the literal and the figurative are intentionally exploited. This practice, along with rap’s dense slang and penchant for imbuing words with new meaning(s), makes it especially susceptible to misreading and misinterpretation.”
Lawyers for Elonis argue in their brief (PDF) that the threats law requires proof that their client intended his statements to constitute a threat. They argue the Philadelphia-based 3rd U.S. Circuit Court of Appeals wrongly interpreted the law to require only proof that a reasonable person would see the statement as a threat.
“Without a subjective intent requirement,” the brief says, the threats law “would impose criminal punishment for negligent speech in violation of the First Amendment.”
Hat tip to How Appealing.