Rap Music Plays Role in First Amendment Case

The musical tastes of several U.S. Supreme Court justices run toward opera. But as the start of its fall term approached, the court was getting an intense education in another genre: the rhythmic, slangy ' sometimes violent ' poetry of rap music.

The modern musicology lesson plays a key part in Elonis v. U.S., 13-983, which is set for argument before the high court on December 1. The case asks whether the online posting of threatening language like that found in some rap lyrics violates a federal law against transmitting “any threat to injure the person of another” across state lines.

Anthony Elonis of Pennsylvania began posting angry prose on Facebook in 2010 after his wife left him. He often stated his messages were in jest, and sometimes they sounded as much like legal analysis as threats. “Did you know that it's illegal to say I want to kill my wife?” he wrote.

After Elonis' wife obtained a protection order, his postings became darker. “Hell hath no fury like a crazy man in a kindergarten class,” he wrote, more than two years before the Sandy Hook, CN, shooting. After an FBI agent visited his home, Elonis mimicked a rap song in a Facebook post that said she “stood so close, took all my strength not to turn the bitch ghost.” Elonis was arrested and convicted on charges of violating the federal law against threats. He has been in prison for more than three years.

Lawyers for Elonis claim he was convicted under the wrong legal standard. All the government was required to prove in his case was that his words could be viewed by a “reasonable person” as a true threat ' regardless of whether Elonis actually intended them that way. John Elwood of Vinson & Elkins, who will argue on Elonis' behalf, hopes to convince the Supreme Court that the law ' and the First Amendment ' require the government to satisfy a higher hurdle of proving the speaker's intent to threaten. That higher standard would prevent punishing legitimate speakers solely for “failing to foresee” how others might react to their speech, Elwood said.

That's where the justices' rap music lesson comes in. “It's what amicus briefs should be ' bringing knowledge to the court about a genre they are probably not that familiar with,” said Clay Calvert, a lawyer and professor of mass communications and director of the Marion B. Brechner First Amendment Project at the University of Florida. “The law clerks probably are, but maybe not the justices.”

The law clerks' role in educating the justices about technology is behind the scenes, but important. For Reno v. American Civil Liberties Union, 117 S. Ct. 2329, the first Internet case in 1997, clerks wheeled computers into justices' chambers. More recently, clerks helped justices understand video games for Brown v. Entertainment Merchants Association, 131 S. Ct. 2729, the 2011 ruling that struck down restrictions on the sale of violent video games.

Calvert wrote a brief on behalf of rap music scholars Erik Nielson of the University of Richmond and Charis Kubrin, who teaches criminology at the School of Social Ecology at the University of California, Irvine. Calvert's legal brief emphasizes the hyperbole, even the intentional ambiguity, of rap, even as it delivers potent messages about culture and politics.

If violent video games are protected by the First Amendment, Elwood said, giving the same protection to rap lyrics should be “a lighter lift.”

David Greene of the Electronic Frontier Foundation (EFF) said that the Supreme Court justices also need to consider that a Facebook post aimed at a handful of “friends” can be quickly shared with thousands of unknown people, without the context that might make its peaceful intentions clear.

One voice that has not been heard in Elonis is that of Facebook itself. Elwood said he had contact with Facebook officials when he took on the case this year, but “I got the impression they seemed to think they did not have a dog in this fight,” Greene said.

Justices Ruth Bader Ginsburg and Antonin Scalia have made cameo appearances as supernumeraries in opera performances, but none of the Elonis briefs mention the violence ' love-triangle murders and suicides galore ' found in many operas and their lyrics. “Operas can get pretty gory,” Elwood acknowledged. “I should have put that in my brief.”

Tony Mauro is the U.S. Supreme Court correspondent for The National Law Journal, an ALM sibling publication of Entertainment Law & Finance.

The musical tastes of several U.S. Supreme Court justices run toward opera. But as the start of its fall term approached, the court was getting an intense education in another genre: the rhythmic, slangy ' sometimes violent ' poetry of rap music.

The modern musicology lesson plays a key part in Elonis v. U.S., 13-983, which is set for argument before the high court on December 1. The case asks whether the online posting of threatening language like that found in some rap lyrics violates a federal law against transmitting “any threat to injure the person of another” across state lines.

Anthony Elonis of Pennsylvania began posting angry prose on Facebook in 2010 after his wife left him. He often stated his messages were in jest, and sometimes they sounded as much like legal analysis as threats. “Did you know that it's illegal to say I want to kill my wife?” he wrote.

After Elonis' wife obtained a protection order, his postings became darker. “Hell hath no fury like a crazy man in a kindergarten class,” he wrote, more than two years before the Sandy Hook, CN, shooting. After an FBI agent visited his home, Elonis mimicked a rap song in a Facebook post that said she “stood so close, took all my strength not to turn the bitch ghost.” Elonis was arrested and convicted on charges of violating the federal law against threats. He has been in prison for more than three years.

Lawyers for Elonis claim he was convicted under the wrong legal standard. All the government was required to prove in his case was that his words could be viewed by a “reasonable person” as a true threat ' regardless of whether Elonis actually intended them that way. John Elwood of Vinson & Elkins, who will argue on Elonis' behalf, hopes to convince the Supreme Court that the law ' and the First Amendment ' require the government to satisfy a higher hurdle of proving the speaker's intent to threaten. That higher standard would prevent punishing legitimate speakers solely for “failing to foresee” how others might react to their speech, Elwood said.

That's where the justices' rap music lesson comes in. “It's what amicus briefs should be ' bringing knowledge to the court about a genre they are probably not that familiar with,” said Clay Calvert, a lawyer and professor of mass communications and director of the Marion B. Brechner First Amendment Project at the University of Florida. “The law clerks probably are, but maybe not the justices.”

The law clerks' role in educating the justices about technology is behind the scenes, but important. For Reno v. American Civil Liberties Union, 117 S. Ct. 2329, the first Internet case in 1997, clerks wheeled computers into justices' chambers. More recently, clerks helped justices understand video games for Brown v. Entertainment Merchants Association, 131 S. Ct. 2729, the 2011 ruling that struck down restrictions on the sale of violent video games.

Calvert wrote a brief on behalf of rap music scholars Erik Nielson of the University of Richmond and Charis Kubrin, who teaches criminology at the School of Social Ecology at the University of California, Irvine. Calvert's legal brief emphasizes the hyperbole, even the intentional ambiguity, of rap, even as it delivers potent messages about culture and politics.

If violent video games are protected by the First Amendment, Elwood said, giving the same protection to rap lyrics should be “a lighter lift.”

David Greene of the Electronic Frontier Foundation (EFF) said that the Supreme Court justices also need to consider that a Facebook post aimed at a handful of “friends” can be quickly shared with thousands of unknown people, without the context that might make its peaceful intentions clear.

One voice that has not been heard in Elonis is that of Facebook itself. Elwood said he had contact with Facebook officials when he took on the case this year, but “I got the impression they seemed to think they did not have a dog in this fight,” Greene said.

Justices Ruth Bader Ginsburg and Antonin Scalia have made cameo appearances as supernumeraries in opera performances, but none of the Elonis briefs mention the violence ' love-triangle murders and suicides galore ' found in many operas and their lyrics. “Operas can get pretty gory,” Elwood acknowledged. “I should have put that in my brief.”

Tony Mauro is the U.S. Supreme Court correspondent for The National Law Journal, an ALM sibling publication of Entertainment Law & Finance.