This December, the Supreme Court is going to be considering Elonis v. United States, an online threat case where the accused claimed that the rants he posted on his FaceBook page were free speech and rap lyrics, not threats. The words were perceived to be threats against the man’s co-workers, law enforcement and the man’s estranged wife.
In this age where internet trolls, fueled by anonymity and internet bravado, post anything they want, a Supreme Court ruling could have serious implications for free speech. In the opinion of Elonis’s attorney, John P. Elwood:
[T]he case presents an opportunity for the court to reconsider its traditional jurisprudence about how to gauge the seriousness of a threat in the modern age.
“Communication online by email and social media has become commonplace, even as the norms and expectations for such communication remain unsettled,” the petition said. “The inherently impersonal nature of online communication makes such messages inherently susceptible to misinterpretation.”
Yet, according to an article by Brendan O’Connor in Noisey, there is more at stake here than just what we are allowed to post on Facebook. He is concerned about the effect of the ruling on “the relationship between the criminal justice system and hip-hop music.”
While the adversarial relationship between rappers and the law is fairly common knowledge, I had no idea until reading O’Connor’s article that rap lyrics played such a prominent role in criminal prosecutions:
Rap lyrics were entered as evidence as early as 1994, when prosecutors in California used Francisco Calderon Mora’s lyrics to establish his membership in the Southside F Troop street gang, vying for a sentencing enhancement. “Regardless of whether these lyrics were written before or after the killing, they were adequately authenticated as the work of Mora. As such, they demonstrated his membership in Southside, his loyalty to it, his familiarity with gang culture, and, inferentially, his motive and intent on the day of the killing,” Judge William Bedsworth wrote in the appellate court’s 1994 decision upholding the admissibility of Mora’s lyrics. “Nothing makes these rap lyrics inherently unreliable—at least no more unreliable than rap lyrics in general.” Bedsworth’s decision set the legal precedent for interpreting rap lyrics as non-fiction, rather than as a more metafictional, hybrid form. It is a decision that plays upon deep, racist biases—an inability to recognize a difference between the rapper as an artist and the rapper as a human being—and that re-inscribes those biases into the very text of our judicial system.
For prosecutors and jurors, rap lyrics have a particular sense of veracity that lyrics from other genres of music simply do not. In 1996, social psychologist Carrie Fried presented ordinary people (i.e., potential jurors) with lyrics from the Kingston Trio’s “Bad Man’s Blunder,” a 1960s folk song about a man who kills a police officer. To a third of her subjects, Fried attributed the lyrics to the Kingston Trio; to another third, she attributed the lyrics to a country singer; to the final third, she attributed them to a rapper. “When a violent lyrical passage is represented as a rap song, or associated with a Black singer, subjects find the lyrics objectionable, worry about the consequences of such lyrics, and support some form of government regulation,” Fried wrote. “If the same lyrical passage is presented as country or folk music, or is associated with a White artist, reactions to the lyrics are significantly less critical on all dimensions.” In 1999, Stuart Fischoff, another psychologist, found that not only were potential jurors inclined to believe that rap lyrics were intended to be interpreted as facts but that “authoring ‘gangsta rap’ lyrics vies with being charged with murder in terms of the impact of central trait properties in the person perception process.” That is to say, gangster rap was more offensive to potential jurors’ sensibilities than someone being charged with murder.
The article covers a lot more about the prejudice against rap in the legal system and I highly recommend reading the complete piece. It is pretty chilling and clearly shows that the issue goes deeper than just Elonis’ case. At the heart of this issue is how intent is perceived in an online context and whether this is a case of profiling by music.
From an artistic perspective, there are many reasons why someone might write a particular kind of lyrics. Those reasons vary from venting and self-expression to satire and parody. Sometimes artists write to call attention to a particular situation or a cause. To presume a particular intent because of the style of the expression or the race or ethnicity of of the performer is troublesome from a civil liberties perspective, to say the least. There is a strong historical connection between music and free speech, one that is vital for musicians to protect and stand up for.
Mark Twain is quoted as saying, “A novel is a confession to everything by a man who has done nothing.” We’ll see if that applies to rap songs as well…. I may never be able to view Bob Marley’s “I Shot the Sheriff” in the same way again.
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