12/23/2015 05:23 pm ET

The Supreme Court Is Cray If It Doesn't Listen To Killer Mike

This time the justices should see rap for what it is: music.
Hey, Supreme Court, listen to this guy.
Gary Miller/WireImage via Getty Images
Hey, Supreme Court, listen to this guy.

Once the news got out that Killer Mike, Big Boi, T.I. and other rap notables were joining a legal brief to the Supreme Court, entertainment outlets jumped on the story as if it were an amusing culture clash.

Which it probably is. When the court last heard a rap-related case in December 2014, the press was all over Chief Justice John Roberts' recitation of Eminem lyrics at oral arguments. One law professor even did a mash-up of the chief and Marshall Mathers, aptly titled "Roberts and Clyde." Fun stuff.

But both cases also raise serious issues of constitutional rights -- whether you're a rap lover or someone who cares about online freedom.

In last year's dispute, a broad coalition of civil rights groups and free-speech advocates urged the court to recognize the First Amendment implications of essentially criminalizing the making of rap music and what an adverse ruling could mean for what anyone can say on the Internet.

Killer Mike himself, writing in USA Today last year, expressed concern for how the justices might rule in Elonis v. United States, which involved a man found guilty of making threats to his wife in the form of rap lyrics posted to Facebook. Killer Mike and his co-author, University of Richmond professor Erik Nielson, worried that the court could miss a bigger picture: how the law often treats rap less as an art form and more as evidence of criminality in men of color. As if some rhymes over a beat were proof of violent intent.

Roberts, writing for the 8-1 majority in Elonis, dodged all those concerns when the court ruled in June. He didn't even mention the First Amendment. The court's very narrow ruling threw dissenting Justice Clarence Thomas for a loop. Thomas chastised the majority for failing to set a workable standard for the state of mind that prosecutors must prove when going after threats made on social media, musical or not.

"This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty," Thomas wrote.

So Killer Mike is at it again. He and Nielson -- plus a cadre of other rap scholars and artists -- are pressing the Supreme Court to act in a new case that's at once very similar to Elonis and very different.

It's similar in that the new case, Bell v. Itawamba County School Board, deals with government punishment of speech made online. It's different in that this is not a criminal case, but a civil dispute involving a high school that punished a student for a rap he posted on YouTube.

Back in 2010, Taylor Bell, the black student at the center of the case, was equal parts aspiring emcee, whistleblower and caring classmate. Several girls at Itawamba Agricultural High School in Fulton, Mississippi, told him that two male coaches were sexually harassing them, making suggestive comments about their appearance and touching them inappropriately.

Bell decided to rap about the allegations and post the audio to Facebook and YouTube, all from the comfort of his home. In keeping with the genre, his verses were riddled with explosive rhetoric: 

This nigga telling students that they sexy, betta watch your back / I'm a serve this nigga, like I serve the junkies with some crack / Quit the damn basketball team / the coach a pervert / can't stand the truth so to you these lyrics going to hurt

Those are some of the softer lyrics. Elsewhere, there's a claim that Bell -- or rather, T-Bizzle, his stage name -- would "hit you with my rueger [sic]" or "get a pistol down your mouth." This was enough to raise alarm among school administrators and get Bell into trouble for allegedly threatening the coaches.

But neither of those gentlemen appeared at his disciplinary hearing, and no evidence that they -- or the school -- faced an actual threat was presented at the hearing. Still, Bell was suspended and placed in an alternative school to finish out the remainder of the school year.

A month later he sued the school district in federal court, claiming a violation of his First Amendment rights as they relate to off-campus speech. The law is hopelessly divided in that area, and so Bell's case wound its way through the courts until it landed before a 16-judge panel of the U.S. Court of Appeals for the 5th Circuit -- considered one of the most conservative courts in the country.

Their August ruling was all over the place. In the course of 101 pages, a majority of the judges agreed that Bell's protest rap was "incredibly profane and vulgar" and that the school didn't violate the First Amendment in suspending him.

But the judges split sharply in their reasoning, with one of them noting that "the Supreme Court has not expressly ruled" on how speech protections apply to off-campus speech by students.

Instead, all the public and the lower courts have to rely on is a 1969 case holding that schools may punish on-campus speech, so long as the speech could bring about "substantial interference" with school activities. Courts have since applied that standard inconsistently to off-campus activity.

Bell now asks the high court: To what extent does the Constitution allow schools to punish students for things they say when they're not there?

The Supreme Court should soon decide whether it will hear the appeal of Taylor Bell, who was suspended from school over offen
Jacquelyn Martin/Associated Press
The Supreme Court should soon decide whether it will hear the appeal of Taylor Bell, who was suspended from school over offensive rap lyrics he posted online.

That's squarely a First Amendment question. And given the uncertainty in the lower courts, the Supreme Court should agree to hear the case. But there's also the concern Killer Mike and the rap scholars raised in their brief filed Monday: rap's place as an art form and a vehicle for social protest by African-Americans.

"If our judicial system allows these stereotypes [of rap's creators and listeners] to go unchallenged, justice will continue to be elusive for those Americans most in need of a voice -- a voice that rap music has given them," the brief argues.

Whether the justices are ready to grapple with that reality is unclear. But their voices, however unhip, could resonate loudly in cases where music may wrongly be associated with a person's character, a crime or even entire communities.

Or as Killer Mike told The New York Times when he reflected on what Bell did: "I see a kid who saw wrong happening and was outraged about it. He wrote a poem about it over a beat."

We should find out in the next few months whether that's enough for the Supreme Court to weigh in.