By Anna E. Bodi, ACLR Featured Online Contributor

It isn’t every day that United States Supreme Court Chief Justice John Roberts quotes Eminem’s rap lyrics during oral arguments. In a case argued before the Supreme Court in December, the Chief Justice recited some of Eminem’s more inflammatory lyrics from a song on The Slim Shady LP.1 Justice Roberts was trying to determine what makes a statement a threat and what test should be applied in that determination. In the case pending before the Court, Elonis v. United States, Anthony Elonis was sentenced to prison for posting his own rap lyrics on Facebook, including comments about killing his wife and an FBI agent.2 Elonis claims that, like Eminem, he did not intend the lyrics to be threatening, and so he should be protected by the First Amendment and should not have been convicted.3

The statute under which Elonis was convicted provides a fine or maximum five-year imprisonment for anyone who “transmits in interstate or foreign commerce any communication containing . . . any threat to injure the person of another.”4 Just what constitutes a “threat” is not explicitly defined in the statute. The Supreme Court must therefore decide “[w]hether , as a matter of statutory interpretation, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten”5 and “[w]hether, consistent with the First Amendment and Virginia v. Black, conviction of threatening another person under 18 U.S.C. § 875(c) requires proof of the defendant’s subjective intent to threaten . . . or whether it is enough to show that a ‘reasonable person’ would regard the statement as threatening.”6 In other words, the Supreme Court is deciding whether the statute requires that the individual intended the words as a threat, or if it is enough that a reasonable person would find the statement threatening. Moreover, even this inquiry does not have a simple answer, as the Court would also potentially need to address how to determine intent and how the “reasonable person” should be defined in this context. Faced with the tension between protecting free speech and punishing individuals who threaten to harm others, the Supreme Court should err on the side of protection of constitutional rights.

In the Facebook posts for which he was prosecuted, Elonis included written versions of his rap lyrics that were admittedly offensive, stating “Little Agent lady stood so close Took all the strength I had not to turn the bitch ghost Pull my knife, flick my wrist, and slit her throat Leave her bleedin from her jugular in the arms of her partner.”7 During oral argument, Justice Roberts questioned whether Eminem could be prosecuted under the same statute for his similarly threatening rap lyrics.8 Michael R. Dreeben of the U.S. Department of Justice told the Chief Justice that Eminem’s lyrics were distinguishable and he could not be prosecuted because his statements were made in an entertainment context.9 According to Dreeben, any reasonable person would find at a minimum that there was ambiguity as to whether Eminem’s lyrics expressed a serious intent to harm.10 Using the reasonable person test, Dreeben would distinguish between Elonis’s alleged threats and Eminem’s lyrics, including his song Kim.11 The song is named after Eminem’s ex-wife, and explicitly and graphically describes Eminem murdering Kim: “Don’t you get it bitch, no one can hear you/Now shut the fuck up and get what’s coming to you/You were supposed to love me/Now bleed bitch, bleed!/Bleed bitch, bleed! Bleed!”12 The DOJ insisted that these statements, unlike Elonis’s statements of a similar nature, would be excluded from prosecution because they could not be called threats in context.13

Is the context of Eminem’s statements really so different from the “context” of Elonis’s statements? It almost seems as if Eminem’s statements are not considered threats because he is a celebrity and prominent recording artist. With essentially the same content, why is Eminem’s speech protected, while Elonis is imprisoned? Does the written or posted versus audio or sung version of the threat make a difference in “context”? The DOJ’s arguments about Eminem and the entertainment context present a subjective, inconsistent, and unfair standard. To extend the DOJ’s argument, look at the example of rappers who are also known to be violent or members of gangs, who have been involved in violence based on rivalry. The rapper known as Snoop Dogg was a known affiliate of the “Crip” gang of Los Angeles. Some of his lyrics include references to shooting members of other gangs: “Snoopy he went straight to the trunk of his car/He got his gun and they started running hard/He started firing and then he just charged.”14 Similar to Eminem, these statements are made in an entertainment context. Even if he intended these to be real threats, would the entertainment context create enough ambiguity to protect Snoop Dogg’s speech?

It is undeniable that many people would find Eminem and Snoop Dogg’s lyrics as well as Elonis’s statements to be offensive and uncomfortable to read or listen to. However, there is a difference between inflammatory lyrics and a true threat. A more appropriate distinction between threatening statements and criminal threats would be a requirement showing harmful intent, as Elonis’s attorneys contend. Adopting an intent standard does not mean that nothing can be done about such statements. If law enforcement is concerned about the seriousness of a potentially threatening statement, they can investigate the individual to assess intent. We should be cautious about punishing and imprisoning individuals for statements, even very offensive ones.

One of the purposes of the statute in question in Elonis is to criminalize individuals who make threats. This statutory purpose would be undermined if we punish individuals based on what others think of their speech. This is a potential slippery slope for infringement on free speech. According to Justice Kagan, “[W]e typically say that the First Amendment requires a kind of a buffer zone to ensure that even stuff that is wrongful maybe is permitted because we don’t want to chill innocent behavior.”15 Finding a statement deplorable is not enough to condemn it as criminal. The Supreme Court should uphold First Amendment protections for all its citizens, not just the famous rappers, and opt to punish only individuals who make statements with a subjective intent to threaten.