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Supreme Court Should Decide Whether Rap Lyrics Are Free Speech

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It's a combustible combination -- rap music, social media and violent imagery -- which is increasingly pushing the envelope of the First Amendment right of free speech. So much so, that it's time for the Supreme Court to weigh in on this critical issue.

In February, an Allegheny County, Pa., judge sentenced 19-year-old Jamal Knox to two to six years in prison based on a rap video he and another defendant posted on YouTube that allegedly threatened two police officers.

That same month, Anthony D. Elonis petitioned the U.S. Supreme Court to hear his case involving his conviction for conveying threats of violence in the form of rap lyrics posted on Facebook.

The Marion B. Brechner First Amendment Project (University of Florida), Thomas Jefferson Center for Freedom of Expression (University of Virginia) and the Pennsylvania Center for the First Amendment (Pennsylvania State University) filed a friends-of-the-court brief last week encouraging the Supreme Court to take up U.S. vs. Elonis.

These cases may seem odd to the casual observer today. After all, it's been more than 20 years since rapper Ice-T's metal band, Body Count, released the song "Cop Killer." It sparked a tidal wave of protest from police, politicians and conservative culture warriors.

While the decades passed, rap became commercialized (Ice-T is now better known for playing a cop on Law & Order: Special Victims Unit and becoming a reality TV star on Ice Loves Coco) and social media proliferated in everyday communications. The increased exposure of artistic expression on digital media raises new questions at the dangerous intersection of rap and the First Amendment.

One of the few types of speech not protected by the First Amendment -- along with categories such as obscenity, child pornography and fighting words -- is true threats. The true threats category is of relatively recent vintage, with the U.S. Supreme Court ruling for the first time in 1969 in a case called Watts v. United States that such speech is not shielded by the U.S. Constitution.

The case pivoted on a statement made by Robert Watts in 1966 during a public rally on the Washington Monument grounds: "They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming ... If they ever make me carry a rifle the first man I want to get in my sights is L.B.J."

The Court held that this speech was not a true threat but rather amounted to political hyperbole protected by the First Amendment. The Court failed, however, to define what precisely constitutes a true threat.

The Court's most recent threats ruling dates back more than 10 years to when it held that cross burning can constitute an unprotected threat violence, but only when it is done with the specific intent to intimidate. Thus, the burning crosses in the back of Madonna's "Like a Prayer" video do not constitute a true threat.

In the cross-burning case, Virginia v. Black, the Court defined true threats as "those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals."

Both Watts and Black made it clear that context and content are key factors in sorting out true threats. But neither case involved speech conveyed via online social media. Will people discount or treat less seriously speech posted on Facebook or a video uploaded to YouTube than they would in-person or in a traditional medium such as newspapers or television? The Court never has considered how the nature of online media affects a true threats analysis.

And should it make any difference when alleged threats are conveyed in the form of an artistic, albeit controversial, mode of expression?

Much of gangsta rap, despite its violent themes, involves posturing and posting, as rappers try to build street credibility. As Jamal Knox told the judge in Pennsylvania during his sentencing, "As a rapper, you have to put on an image. Like, my business is my product." He added, according to the Pittsburgh Post-Gazette, "I don't want you to look at us as gangsters or anything. We just make music."

Fictional images of violence are protected by the First Amendment, as the Supreme Court made clear in 2011 when it struck down a California law restricting minors' access to violent video games.

Furthermore, rap often is political in nature, as "Cop Killer" itself was back in the early 1990s. Political speech lies at the core of First Amendment protection. In other words, rap blends fantasy, entertainment and politics, but it also freighted with negative racial stereotypes.

Unfortunately, it is not hard to speculate that the legal deck may be stacked decidedly against rap -- replete with its negative stereotypes of violence, nihilism and hyper-materialism -- when its authors are accused of embedding threats in lyrics. When any example of rap is brought into the legal system because it allegedly is a threat, both it and its author face an uphill battle and start with a negative bias against them because rap, as a genre, carries with it the heavy baggage of negative controversy. Indeed, the mainstream press has frequently connected both violence and crime to rap.

Jurors must be exposed to evidence regarding other aspects of the genre to help prevent them from reaching a verdict tainted by misconceptions and, worse yet, racism about an artistic medium. The U.S. Supreme Court now has the chance to either accept or reject this point if it decides to hear the case of Anthony Elonis.