When Rap Lyrics and Free Speech Collide

By Gustav Honl-Stuenkel

“Enough elementary schools in a ten-mile radius to initiate the most heinous school shooting ever imagined, and hell hath no fury like a crazy man in a kindergarten class.”

This sentence, in a note left at an elementary school, in an angry post on social media, phoned into a police station, or otherwise expressed in prose, would naturally be seen as a grave and criminal threat. For Anthony Elonis, however, these words — menacing, offensive, and violent as they may be — are simply a verse from a rap song he wrote, and according to the Supreme Court, they are protected by the First Amendment. This context, that the words come as a form of artistic expression rather than standing alone, is critical to determining where lines of Free Speech are drawn, and what artists can and cannot say.

Various genres of music have been decried publicly for their presumed impact, from heavy metal being blamed for the suicide of two teens, to drill, a style of rap, recently being blamed for an uptick in knife violence in London. Rap music, as it has ascended to become the most popular genre in the world, has especially been a target of these accusations. As has been the case throughout its development, rap is peppered with hyperbolic references to drugs, alcohol, weapons, and violence. For many, this has been a reason not to listen to the genre, to ban it from radio and television, and to call the artists who make it thugs, criminals, and threats to society; for lawyers, these traits, and the lyrics they inspire, can be especially powerful in a courtroom. The cases of Elonis v. United States, Skinner v. New Jersey, and Oduwole v. Illinois, among others, all centered on rap lyrics found by prosecutors to secure convictions specifically regarding the alleged intent to commit violence. The artistic context of each case was important for the convictions at trial and ended up being important again as each conviction was overturned by higher courts.

Anthony Elonis’ case especially demonstrates how context outlines the protections for artists. In 2010, Elonis was accused of threatening his ex-wife through rap lyrics that he posted on Facebook, though he included disclaimers in the comments section that these lyrics were artistic expression and asserted that they were protected by the First Amendment. When Elonis was taken to court, the prosecutor’s argument was that a reasonable person would feel threatened by the words, given the context in which they were delivered. “It’s a virtual certainty” that one would feel threatened by the lyrics Elonis posted, The New York Times reported the prosecuting lawyer as saying.

This approach secured a guilty conviction in lower courts, but when the case reached the Supreme Court, the justices focused on determining whether there was criminal intent behind the lyrics. An amicus brief, filed by Erik Nielsen and Chris Kubrin for the First Amendment Project, referenced the cases of both Oduwole (in which the rapper was accused of making terrorist threats) and Skinner (in which the singer was accused of murdering a drug dealer) in explaining how courts can easily misconstrue the braggadocio and exaggeration prevalent in rap music as genuine reflections of the intent of the writer.

Through this misperception, the brief concludes, Elonis’ lyrics were misinterpreted and thus used improperly as evidence of his intent. A similar situation occurred with Skinner, whose rap lyrics were entered as evidence of “motive and intent” of the murder for which he was on trial. In appellate courts, however, the use of these lyrics was deemed prejudicial, and the ruling was overturned. The First Amendment Project’s brief argued that the subjective intent of the writer should be the focus of a case such as this, and that otherwise, Elonis’ right to free artistic expression would be infringed upon, as it had been for Skinner.

The Supreme Court ruled in favor of Elonis, saying that the prosecution did not prove that his wrongdoing was evident to him, and that the threshold for threats should not be whether a reasonable person would view his words as a threat without being conscious of the defendant’s state of mind when he uttered them. The court contended that without proof that Elonis intended his words to be threats rather than lyrics, a conviction based on his expression could not stand. The justices ruled that while artistic expression may seem threatening, there must be proof that the artist intended the threat — otherwise, art is protected.

The First Amendment affords Anthony Elonis, as a U.S. citizen, great latitude with what he can and cannot say publicly, be it online or in person. If he chooses to make threats, however, Elonis crosses a clear boundary that the government has established, and his words themselves become a crime. These threats, however, when put to verse and laid over music, become artistic expression, raising the bar for proof and changing how the courts must weigh them as evidence. As shown by Elonis v. United States, artistic expression offers its own layer of protection, affording artists and creatives the space to communicate freely, and to broach controversial topics, seemingly as long as they don’t mean to act upon what they say.

Gustav Honl-Stuenkel studies philosophy and government in the Georgetown College Class of 2020. He writes and served as podcast editor for the Georgetown Voice and is a tutor for the Writing Center.