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Prison for Posting a Rap Song Called "Kill Me a Cop":

The Lakeland (Florida) Ledger reports:

[Antavio Johnson, 20, was charged with two counts of corruption by threat of a public servant after a Polk County gang detective found the song on a MySpace page belonging to Hood Certified Entertainment in February.

In his song, "Kill Me a Cop," Johnson mentions two Lakeland police officers by name, according to the Sheriff's Office....

Johnson pleaded no contest to the charges July 24 and was sentenced to two years in state prison....

In the song, the lyrics "Im'ma kill me a cop one day" and "Call me crazy but I think I fell in love with the sound of hearing the dispatcher saying, 'Officer Down,'" are repeated....

Johnson also refers to being on probation, Sheriff Grady Judd and the 2006 killing of deputy Matt Williams and his K-9 DioGi....

A friend of Johnson's said he posted the song without paying close attention to the lyrics, and the song was never meant to be released, but it's not clear to me whether the prosecutors believed that.

It's hard to tell whether the song is constitutionally protected without seeing the full lyrics, which I couldn't find. (Please let me know if you have an authoritative copy.) My tentative sense, though, is this:

(1) If Johnson distributed the song (or authorized such distribution) with the purpose of threatening the two particular police officers, then it would probably fit within the "true threats" exception to the First Amendment protection.

(2) If the song had simply generically said that the singer would kill cops one day, it would probably be constitutionally protected.

(3) If Johnson expressly mentioned the two police officers, but did not have the purpose of threatening those officers — but was just saying it as fiction, much as a writer might have a character say things that the writer doesn't intend to have taken seriously — then the speech is probably protected (see Virginia v. Black, Part III.A), though some post-Virginia-v.-Black circuit court decisions say that such a purpose to threaten is not required.

UPDATE: Thanks to Victor Steinbok and commenter Chris Hundt, I got a link to the lyrics, which are here. My sense is that the specific reference to the two police officers would indeed make this into a potentially punishable threat, at least if it could be shown (had the case gone to trial) that the defendant had the purpose of threatening the police officers. It's true that in some contexts speech can be pretty clearly fictional or hyperbolic, so a reasonable person wouldn't perceive it as a serious threat, and a reasonable jury would conclude that the speaker didn't have the purpose of threatening the target. But this is not clearly so in this context (though the defendant would be free to make the fiction argument to the judge and then to the jury, if the case had gone to trial).

Cato The Elder (mail) (www):
2 Years?! That's a bit much.
8.3.2009 8:12pm
BGates:
Couldn't the President just have Johnson and Judd over for a beer and straighten this whole thing out?
8.3.2009 8:19pm
Libertarian1 (mail):
What if someone posted the lyrics to I Shot the Sheriff. Marley/Clapton admitted a crime. Jail?
8.3.2009 8:30pm
Chris Hundt (www):
The lyrics are here.
8.3.2009 8:34pm
mcbain:
That rhyme scheme is worth at least a misdemeanor
8.3.2009 8:40pm
SuperSkeptic (mail):
Appalling.

Who is the pathetically weak-willed court appointed PD who rolled over on this one? He should be taken out back and ...given a stern talking to.

Whew! If I knew his name, I'd catch a case right now.
8.3.2009 8:44pm
ChrisTS (mail):
First of all, the lyrics (thank you Chris Hundt) are not all that clearly threatening to anyone in particular; it seems to be a lament about a friend who has gone to prison and the singer's feeling that he might "one day" loose it and shoot a police officer. Even the references to particular officers are framed in terms of their being in the wrong place/time when he might lose it.

I'm all for care and appreciation of our police, but I have the sense that something is going very wrong. I admit this is partly a reaction to all those good citizens posting in various places (see the comments on Herbert's piece in the NYT) on the Gates arrest who seem to think citizens have no rights and ought to show remarkable deference to police - even when the police are not following the letter of the law.

That this man received TWO YEARS for posting a song that suggests he might, someday, be driven so mad by his sense of oppression as to do what he "knows isn't right" - where do we live?
8.3.2009 8:50pm
AnonNYC:
I'm confused... is the issue that the people who are 'threatened' are LEOs?

(IANAL, but I work in music production in NYC. This is a poor effort compared to some of the 'dis' tracks I have personally worked on, to say nothing of what I've heard. But that is artists 'threatening' other artists, which I guess assumes some kind of 'artistic license?' What if the people named had been real, but private citizens- not LEOs?)
8.3.2009 9:04pm
Cato The Elder (mail) (www):

That rhyme scheme is worth at least a misdemeanor

mcbain,

Exactly. Dude's got no flow. It's not even clear that someone would take this weak stuff seriously enough to make do on the "threats" within.
8.3.2009 9:05pm
GV:
SuperSkeptic, the decision whether to plead guilty is the client's, not the attorney's. The PD didn't "roll over." The client did. (And if he hadn't he probably would have received a lot more time.)
8.3.2009 9:12pm
markm (mail):
He pled no contest, rather than guilty, to preserve the right to appeal. (NY Times story I read this morning.)

Allegedly he wrote the song at least two years before it was posted on the web, without his permission. How is it a "death threat" when the author never intended it to come to the attention of those threatened?
8.3.2009 9:49pm
Mark N. (www):
I still don't think we've entirely sorted out this aspect of police defensiveness. I can certainly see why police would be upset about such lyrics, but police are also in the delicate position where they should attempt to treat abuse directed towards police in a distanced, third-party manner, as neutral upholders of the law.

With rap lyrics in particular, I'm not sure the law-enforcement community has ever really backed away from its initial reaction to NWA's "Fuck the Police", now two decades in the past:
The song's vitriolic lyrics, while boldly expressing resentment many blacks felt toward abusive police, set off an uproar within the nation's law enforcement. On August 1, 1989, the FBI's assistant director of public affairs, Milt Ahlerich, sent a letter to Priority Records saying the track encouraged "violence against and disrespect for the law enforcement officer." After the song's lyrics were faxed to various police departments, cops across the country protested, refusing to provide security for N.W.A. concerts in certain cities. There was even alleged harassment as federal agents in Cincinnati, subjecting the group to drug searches, asked if they were "L.A. gang members using their tour as a front to expand their crack-selling operation." And at a Detroit concert, where the audience constantly chanted "Fuck the police!" during the show, police rushed the stage as N.W.A. began performing the song.

(From p. 104 of this book.)
8.3.2009 9:54pm
SuperSkeptic (mail):
the decision whether to plead guilty is the client's, not the attorney's. The PD didn't "roll over." The client did. (And if he hadn't he probably would have received a lot more time.)

While I realize all of that, "his decision" is based on what you "advise" him. If defendants knew what they were doing we wouldn't appoint PD's would we?

Obviously, commenting here we do not and cannot know all the facts, but having read the article, the lyrics, and EV, I stand by what I said. 2 years for this schlock is no deal anyhow.
8.3.2009 10:05pm
Fub:
GV wrote at 8.3.2009 9:12pm:
SuperSkeptic, the decision whether to plead guilty is the client's, not the attorney's. The PD didn't "roll over." The client did. (And if he hadn't he probably would have received a lot more time.)
While that may exculpate the PD from charges of being a pushover, it sure doesn't say anything good about the courts, prosecutors, and maybe even the state of the law.

But at least the state of the law depends upon a future ruling on any First Amendment substance in the appeal.
8.3.2009 10:09pm
SuperSkeptic (mail):
Moreover, I'm with Mark N. and Chris TS. There is a serious abuse of power issue lurking in the background of the Professor Gates incident as well as in an incident like this. (And please do not confuse that for the race issue...which could easily overpower the others under consideration here...)
8.3.2009 10:12pm
Ricardo (mail):
First of all, the lyrics (thank you Chris Hundt) are not all that clearly threatening to anyone in particular; it seems to be a lament about a friend who has gone to prison and the singer's feeling that he might "one day" loose it and shoot a police officer. Even the references to particular officers are framed in terms of their being in the wrong place/time when he might lose it.

"Gee, Officer Shmoe, it would be an awful shame if you found yourself in the wrong place at the wrong time by getting mixed up in such a sensitive manner."

Does that count as a constitutionally unprotected threat? If it is being uttered by a person with the means and motive to murder the officer, I imagine it could.
8.3.2009 10:39pm
GV:
Superskeptic, if you think clients always listen to their attorneys, or always do the reasonable or rational thing, I'm going to go out on a limb and say you're either a law student or a non-lawyer. Clients don't listen to good advice all the time.
8.3.2009 10:47pm
SuperSkeptic (mail):
GV, I hear you. And I'm no longer as heated as I was earlier, either. Defendants are usually irrational and unreasonable - after all, they are defendants. I just think this case is a travesty, a shame, and an affront to the First Amendment - which I am passionate about.

Not to mention 2 years of the life of a young man...ughh
8.3.2009 11:09pm
drunkdriver:
While that may exculpate the PD from charges of being a pushover, it sure doesn't say anything good about the courts, prosecutors, and maybe even the state of the law.


And taking decisions about cases out of the hands of clients, especially those facing years in prison, improves the state of the law how?
8.3.2009 11:30pm
PatHMV (mail) (www):
drunkdriver, the courts have an obligation to refuse to accept a plea deal if the plea is not supported by the allocuted facts or the law. Prosecutors have an obligation to not pursue charges which are, in fact, unconstitutional. That's why commenters are suggesting concern that, regardless of the defendants' willingness to plead guilty, the charges were brought and the pleas were accepted.

I find these lyrics, and that entire genre of rap music which extols and promotes violence, especially against the police, to be loathsome and vile, and I have an exceedingly low opinion of those sickos who write and record such filth. But as disgusting as I find the lyrics, and as much harm as I think they do to some segments of our population, they're still only words, and they are, barring one of the very narrow exceptions, protected by the Constitution no matter how vile and disgusting they may be.
8.3.2009 11:55pm
/:
"Congress shall make no law abridging speech" does not cover thought.
8.4.2009 12:09am
LaShandra (mail):
Government works for those who govern.
8.4.2009 12:54am
Thoughtful (mail):
This is why I laugh uncontrollably when people say we live in a free country.
8.4.2009 2:07am
Anon21:
Thoughtful:
This is why I laugh uncontrollably when people say we live in a free country.

Let's wait for the appeals courts to do their work before we get too smug, shall we?

And yes, I realize that part of the problem is that the guy will be in jail while he waits for this unconstitutional conviction to be vacated, so cold comfort to him that this may eventually get straightened out. But I think it matters nonetheless--in the individual case, because the defendant may eventually get the satisfaction of prevailing, of having his speech declared protected and the prosecution declared illegal and void. And in the broader sense, because I think the practical limits of speech protection do expand over time. Have there been many arrests for flag burning lately?
8.4.2009 2:10am
guester (mail):
Sorry, advocate violence, you go down. All that hip hop stuff is cute, and our president is a halfrican, but still, you can't incite. There are consequences. So do the time! SCOTUS says so, yo!
8.4.2009 3:08am
Soronel Haetir (mail):

Let's wait for the appeals courts to do their work before we get too smug, shall we?


Except he will almost certainly be out of prison by the time any appeal would be complete and then the lawyers will lose interest or the courts will deem the case moot. But he'll still have the record.
8.4.2009 3:19am
Anon21:
Soronel Haetir:
Except he will almost certainly be out of prison by the time any appeal would be complete and then the lawyers will lose interest or the courts will deem the case moot. But he'll still have the record.

Only assuming he can't obtain relief on direct appeal. I don't expect great things from state appellate courts, but if it is true, as one commenter said above, that the defendant had no hand in publishing these lyrics online and never made any attempt to communicate them to the named officers, it strikes me that the case for shoehorning this into the true threats exception is extremely weak, perhaps so weak that even a Florida appellate court wouldn't be willing to accept it.
8.4.2009 4:22am
David Schwartz (mail):
Ricardo: The difference is that one would make a reasonable person in the officer's place feel truly threatened. This song could not possibly do that. Whatever the officer's felt, fear was not it. (Except perhaps fear that the barely existing quality control standards for rap lyrics had dropped to non-existent.)
8.4.2009 4:25am
Ricardo (mail):
Ricardo: The difference is that one would make a reasonable person in the officer's place feel truly threatened. This song could not possibly do that. Whatever the officer's felt, fear was not it.

Based on what? I don't see anything in the article to lead to that conclusion. Johnson admitted to the police that he wrote the song because he felt "harassed" by the police. What if instead of "Officer [name removed]" the song talked about killing the President and mentioned him by name -- that would seem to me to be clearly unprotected. Maybe Presidents get additional protection from threats than other civil servants or civilians but I'm not a lawyer and have never seen the law clearly explained on this point.

If someone wants to write a song about murdering police in general, they are free to do so unless it falls under the imminent threat or riot exception. Once you start naming specific names, it's a whole different ballgame.
8.4.2009 4:47am
JamesWN (mail):

If someone wants to write a song about murdering police in general, they are free to do so unless it falls under the imminent threat or riot exception.
Once you start naming specific names, it's a whole different ballgame.

No, see Watts v. United States (1969) and similar cases. Naming an individual and praying for his death is often constitutionally protected.
8.4.2009 5:04am
David Schwartz (mail):
Ricardo: The President, President-elect, and others in the order of succession are special cases and have special laws to protect them, such as this one.

There is nothing special about naming names. It's still only a true threat if it would make a reasonable person (in the situation of the person it was directed at or received by, perhaps, the law is still, AFAIK, unclear on this) feel threatened. Further, there (usually) must be an intent to carry out that threat. Essentially, that's the definition of "true threat".

And that shows why we need a special law for the President. How do you show a threat would make a reasonable President feel threatened?
8.4.2009 6:58am
JonC:

(1) If Johnson distributed the song (or authorized such distribution) with the purpose of threatening the two particular police officers, then it would probably fit within the "true threats" exception to the First Amendment protection.


This made me think of another First Amendment case that Prof. Volokh recently highlighted: the prosecution of the white supremacist blogger who posted a juror's personal information on his web site. That case was dismissed on free speech grounds. I don't know much about the "true threat" exception to the First Amendment, so given that Prof. Volokh seems to think it's potentially applicable to the rap song case, I would be interested to hear Prof. Volokh, or other knowledgeable folks, explain why it wouldn't/didn't apply in the white supremacist case.
8.4.2009 8:27am
Frog Leg (mail):
If there is somebody in Reno whom I hate, could I be jailed for posting Cash's Folsom River Blues?
8.4.2009 8:31am
Ricardo (mail):
David, so we are left arguing over whether a reasonable person would feel threatened by the rap lyrics. You mention intent on the person making the threat to carry it out, but as Eugene suggests above in item #3, it's not clear under current law whether that is needed or not.

Without more facts, I just don't see where people are jumping to the conclusion that this prosecution is an outrage against the rule of law. Obviously, a prosecutor thought he could convince a jury a reasonable person would have felt threatened in that situation and the public defender thought the case was strong enough to get his client to plead guilty. Maybe the evidence just wasn't there, maybe Florida juries are unreasonably deferential to the police or maybe the guy's lawyer was incompetent. I just don't see the facts laid out clearly enough to reach any one conclusion.
8.4.2009 8:48am
Laura(southernxyl) (mail) (www):

David Schwartz (mail):
Ricardo: The difference is that one would make a reasonable person in the officer's place feel truly threatened. This song could not possibly do that.


I must not be a reasonable person.

If Laura(southernxyl)
The Wonder Woman
Get my timing wrong
I'm a be puttin' one in her dome
...Try me on the wrong day
And I'm offin' ya


Yes, I would pretty well interpret that as "cross my path when I'm having a bad day, and I will shoot you in the head." The calling-out by name, as Ricardo says, cinches it.

However, if true that he never meant for the song to be disseminated, then that is a different story.
8.4.2009 8:53am
No law:
You mention intent on the person making the threat to carry it out, but as Eugene suggests above in item #3, it's not clear under current law whether that is needed or not.


In Chris Hundt's comment above, he posts a link to the lyrics from WTSP.COM.

If unintended threats are contraband, then why hasn't WTSP.COM been charged for posting the threatening lyrics? And why isn't Chris Hundt on the run for posting a link to WTSP.COM's copy of the contraband lyrics?
8.4.2009 9:10am
Calderon:
I'm with JamesWN here; why isn't this rap protected by Watts v. United States (1969)? The defendant there said (in protesting the draft, among other things) that "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." The S Ct held that was protected as "'a kind of very crude offensive method of stating a political opposition to the President.'"

Outside of naming the individual officers, this guy's rap is no worse than Ice T / Body Count's "Cop Killer," and while law enforcement was upset with that song I don't recall many argument that it fell outside of 1A protection. Making whether speech is protected turn on whether specific individual were named as subjects of the threat seems arbitrary and problematic. What if he just mentioned the Lakeland Police force generally without naming names? What if he mentioned crooked cops on the Lakeland Police force? What if someone after the Rodney King beatings wrote a song about killing LA cops that beat black people without giving specific names?

Also, what about something like Public Enemy's "By the Time I get to Arizona," written in protest of Arizona's decision not to recognize MLK day as a holiday? In particular, consider the lyrics:


I B thinkin' time wit' a nine
Until we get some land
Call me the trigger man
Looki lookin' for the governor
Huh he ain't lovin' ya
But here to trouble ya
He's rubbin' ya wrong
Get the point come along


That seems like a "threat" to shoot the governor of Arizona, who's a specific person even though he's not identified by name in the song. Should Chuck D be sent to prison for two years for that?
8.4.2009 10:13am
DennisN (mail):
Isn't Prof Volokh also guilty, since he intentionally posted the proscribed lyrics? {reaching for handcuffs}

I think the only thing proven here, is that if you don't defend your rights, they can be taken from you with impunity.
8.4.2009 10:23am
Commodore:
Thoughtful:


This is why I laugh uncontrollably when people say we live in a free country.


Really? I'd kind of like to see that:


***

John Doe: Boy, these are some of the best July 4th hotdogs we've had in a decade.

Thoughtful: You think so? I was partial to Dave's spicy chili dogs from when he hosted the block party last year.

John: Yeah, they were pretty good. And I remember his wife's homemade dill relish was a nice change of pace.

Thoughtful (taking a bit from his hot dog): Absolutely. Not that these aren't very good, too.

John: Yeah.

Dave: Hey, guys. What's up?

Thoughtful: Oh, hi Dave. John and I were just discussing who had the best Independence Day grilled hot dogs. Carl's are good this year, but I was thinking no one could top your spicy chili dogs.

Dave: And did they?

Thoughtful (smiling): Nope. Carl's are good, but I think yours from last year were the zenith for hot dogs on this block.

John (thinking a moment): I agree. Carl's are very close, though.

Dave (modestly): Well, I actually thought Carl's topped mine. But thanks, guys.

John: It really doesn't get any better than this. Throwing back a few cold beers, arguing about which super-delicious hot dog is the delicious-est. Green lawns, blue sky, celebrating the birth of our country.

Dave (drinking from his Sam Adams): Amen to that. When I think about the life my grandparents left behind in Uzbekistan, I thank God I live in a free country.

Thoughtful: *Snort*

John: Thoughtful?

Thoughtful (looking away, biting his lip trying to keep himself from smiling): *Snicker* I'm sorry.

Dave: Man, I really need some more mustard on this hot dog.

Thoughtful: Heh. Heh, heh.

John: Here you go.

Thoughtful: Ha. Hahaha.

Dave: Thanks, John.

Thoughtful: Haha. Hahahaha. Ha-HA!

Dave (looking at Thoughtful): John, how many has he had?

John: Just one.

Thoughtful (doubling over): Hahahaha. HAHAHAHAHA!

Dave: Careful, Thoughtful. You're gonna choke!

Thoughtful (spitting out his half-chewed dog): HA! HA! HAHAHAHAHAHAHA! HO-HO!

Dave (whispering to John): Are you sure? I think something might be wrong with him. He's not....on drugs or anything, is he?

John: Not that I know of. Thoughtful? Are you okay? Can you hear us?

Thoughtful (rolling on his back on Carl's lawn): HA!! HAHAHA!! HOHOHOHAHAHOHO!!! Hee-hee-hee-hee!!

Carl (walking up): What's so funny? Tell me the joke!

Dave: What joke? He just started this on his own!

Carl: Seriously. What's the joke?

Thoughtful: HAHAHAHAHAHAHAHAHAHAHAHAHA! HA! HA! HA! HA! Ow! HAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHAHA!

John (solemnly): Get his wife over here! Hey, Cindy!

Thoughtful (getting blue now): HAHAHAHAHAHA!

Cindy: Oh, no, not again. What did you say?

John and Dave: Nothing!

Cindy: You must have said something! Did you say something about this being a free country?

John and Dave: .....

Thoughtful (gasping for air): HEEEEEEEE! HAHAHA!

Dave: I just...

Cindy: Never mind that, now. Help me to get him to a sitting position.

Dave (helping her pick up Thoughtful): I'm really sorry, I didn't mean to...

Cindy (shouting): Can you hear me, Thoughtful?

Thoughtful: HA! HAHAHA!

Cindy (prepping a syringe): I'm going to give you the serum now!

Thoughtful (nodding): HAHAHAHAHAHAHAHAHAHA!

(Cindy injects Thoughtful.)

Thoughtful (gasping for air, looking sleepy): HAHA. Hehehe. Ha! Ha-HA! Ha. Ha. Hoo.

(Thoughtful goes unconscious.)

Dave: Cindy, I...

Cindy: Don't even bother. I thought you guys were friends.

John: Cindy...

Cindy: Just help me get him home. With luck, when he wakes up he won't remember Dave's (ahem) indiscretion, and he'll survive without another trip to the emergency room. Hey, kids! Get the stretcher!

(Dave looks at his shoes.)

Cindy (bending over Thoughtful): It's all over now, sweetheart. Let's get you home.

***
8.4.2009 10:34am
Angus:
This is much more of a gray area than most commenters admit. The fact that he named specific people and that he was planning on killing them is the difference between this case and, say, the white supremacist posting juror information without expressly advocating violence. The key points in the lyrics for those who don't click on the link:

If Officer [name removed upon request by LPD] he care at all
Get my timing wrong
Im'ma be puttin' one in his dome

Now imagine your name in there instead of the officers' and this guy singing about shooting you in the head. Would you feel legitimately threatened by that? Do you think direct death threats should be protected speech?
8.4.2009 10:40am
Dave N (mail):
For those who think there is an appellate issue, in most states if you plead guilty (or even no contest) you cannot challenge anything that occurred in the case prior to the entry of the plea, which could include challenging the constitutionality of the statute.

(In most locales a "no contest" plea is treated exactly the same as a guilty plea, with the exception that the criminal conviction could not be used in subsequent civil litigation)
8.4.2009 10:57am
No law:
The fact ... that he was planning on killing them....


These lyrics are the sole evidence of this alleged “plan” ?
8.4.2009 10:58am
Dave N (mail):
The article not precise as to the sentence because there is no discussion of what happened to the probation violation.

If the two years is to run concurrent to a similar underlying sentence for the probation violation then it might have actually been in his best interest to take the deal.
8.4.2009 11:33am
Fub:
Dave N wrote at 8.4.2009 11:33am:
If the two years is to run concurrent to a similar underlying sentence for the probation violation then it might have actually been in his best interest to take the deal.
Yes, and no. He'll do the time concurrently for VOP and the "threatening" conviction. But he'll add another, and possibly worse, conviction on his record.

I could believe that posting the lyrics (if he had actually posted them, and not somebody else) would be a VOP. Terms of probation can be idiosyncratic to the issuing judge, and burden of proof is negligibly low.

But a conviction for personally threatening a cop can be a particularly dangerous thing for anybody to have on their resume, especially if whatever he actually did was protected speech.
8.4.2009 12:24pm
Laura(southernxyl) (mail) (www):

But a conviction for personally threatening a cop can be a particularly dangerous thing for anybody to have on their resume, especially if whatever he actually did was protected speech.


Possible evidence that the law is out of step with mainstream American thought? Not that this is a new thing, necessarily.
8.4.2009 12:31pm
Cato The Elder (mail) (www):

Angus said:

Now imagine your name in there instead of the officers' and this guy singing about shooting you in the head. Would you feel legitimately threatened by that? Do you think direct death threats should be protected speech?

Ha, R-O-C get gunned up and clapped quick
J.J. Evans get gunned up and clapped quick
Your whole damn record label gunned up and clapped quick
Shawn Carter to Jay-Z, damn you on Jaz dick

That's a "stanza" (bar) from Nasir Jones' Ether (2001), one of the most well-known and quoted 'dis' rap tracks amongst literati. Checking briefly, Googling says that its most-viewed video has about 2 million total views on Youtube.

Here, not only does he threaten his subject Jay-Z with death by a previously mentioned "nine shots from [his] Glock" lyric, but he also threatens every single person on the the rapper's record label, Rocafella Records, with a similar fate. In other words, this kind of immature boasting is not novel to to the genre. Since the two have since reconciled to the point of performing together on stage, I surmise that there's little to fear from such poseurs as rap entertainers.
8.4.2009 12:35pm
Laura(southernxyl) (mail) (www):
Cato, the police named in the ouvre at hand presumably aren't rap artists, nor are they associated with a rap record label. If they don't choose to consider the verbiage as empty posing, but to take it at face value, I don't think that's unreasonable at all.

The robbers may be playing cops-and-robbers but that doesn't mean the cops are playing.
8.4.2009 12:41pm
Bob from Ohio (mail):

Now imagine your name in there instead of the officers' and this guy singing about shooting you in the head. Would you feel legitimately threatened by that?


No.

Among other things, the "threat" was not made directly to anyone. A "Polk County gang detective found the song on a MySpace page belonging to Hood Certified Entertainment". If the detective had not looked on that page, no one was "threatened" since the officers would never have known about it.

If a threat is made in the forest and no one was there...
8.4.2009 12:57pm
Cato The Elder (mail) (www):

Cato, the police named in the ouvre at hand presumably aren't rap artists, nor are they associated with a rap record label. If they don't choose to consider the verbiage as empty posing, but to take it at face value, I don't think that's unreasonable at all.

The robbers may be playing cops-and-robbers but that doesn't mean the cops are playing.


Laura(southernxyl),

It strikes me as unreasonable to accord them such a deferential standard, especially then to criminalize violating it in the law. Notwithstanding that argument, I would hope that our police officers already consider themselves "manly" enough to toss aside such cases of ill-formed boasting. How could they possibly perform their duties on a daily basis if they are intimidated by this guy?
8.4.2009 1:05pm
einhverfr (mail) (www):
JonC:

I don't know much about the "true threat" exception to the First Amendment, so given that Prof. Volokh seems to think it's potentially applicable to the rap song case, I would be interested to hear Prof. Volokh, or other knowledgeable folks, explain why it wouldn't/didn't apply in the white supremacist case.


There are a number of differences in facts but I agree with you that the same standard probably governs. In the white supremicist case recently blogged about the juror's personal information was posted on a site with inflamatory rhetoric that one might believe might be intended to cause someone else to kill or harm the juror. The problem though is that the speech seems to be an abstract threat rather than a real one and therefore must meat the test defined in Brandenburg-- i.e. that it must be both intended and likely to cause imminent lawless action. The court of appeals didn't feel that this was the case in this case.

On the other hand, this case is about the perception that the lyrics personally threaten two police officers in terms of the artist saying "I might someday do this." However, in closer review, I believe that the differences go away. The piece of music is essentially an artistic medium and the fear of the police isn't that the rapper himself is going to go over and shoot these law enforcement officers, but rather that it might inspire others to do the same. For this reason, I think that the case is equivalent and that, moreover, the standard of review of these cases should be the same. I would thus look at this as the abstract threat standards articulated in a series of cases from Yates through Brandenburg.

It would be one thing if the lyrics were a piece of a larger pattern where the rapper was implicated in direct involvement in attempting to have these officers killed (either by planning, providing support, or carrying out the act), but this isn't what is alleged. Hence I don't think that this is a "true threat" in the Constitutional definition, and therefore has to be held to the Brandenburg standard.

IANAL so I could be and probably am missing something though.
8.4.2009 1:11pm
Crunchy Frog:
Don't feel sorry for this rap "artist" - when he gets paroled in 6 months he's going to have more street cred and record sales coming his way then he ever possibly could otherwise.

Getting convicted is the best thing he could have possibly done for his career.
8.4.2009 1:27pm
MCM (mail):
No, see Watts v. United States (1969) and similar cases. Naming an individual and praying for his death is often constitutionally protected.


I always thought that was interesting as I was always taught that trying to use magic to kill someone is prosecuted as attempted murder, as factual impossibility is no defense to attempt. So apparently it's ok to invoke a diety to kill someone, as long as most people consider it a real diety.
8.4.2009 1:36pm
MCM (mail):
Don't feel sorry for this rap "artist" - when he gets paroled in 6 months he's going to have more street cred and record sales coming his way then he ever possibly could otherwise.

Getting convicted is the best thing he could have possibly done for his career.


Possibly a toss-up with getting shot, though.
8.4.2009 1:37pm
MCM (mail):
What if someone posted the lyrics to I Shot the Sheriff. Marley/Clapton admitted a crime. Jail?


Might have to go to trial on the second victim, though.
8.4.2009 1:40pm
einhverfr (mail) (www):
Dave N:

For those who think there is an appellate issue, in most states if you plead guilty (or even no contest) you cannot challenge anything that occurred in the case prior to the entry of the plea, which could include challenging the constitutionality of the statute.


Right, because the appellate court is not a fact-finder. And pleading "no contest" means that the accusations are pretty much taken at face value for legal review purposes.

One interesting example. The issue was actually not an overbilling issue, but a billing categorization issue, so the "fraud" in question was both an innocent mistake and one that didn't cost Medicaid any extra money. However, absent jury instructions fact finding, etc. the appeals court had to pretty much accept the prosecution's allegations.
8.4.2009 1:48pm
ChrisTS (mail):
I'm not buying it.

One officer stumbled across the song on Facebook; it was not posted by the , uh, lyricist. How could there be any intent to harm when there was not even an intent to threaten harm?

I agree with SuperSkeptic and PatHMV: this is a violation of the 1st and an appalling abuse of power.
8.4.2009 2:15pm
Not Mojo Nixon:
He's a tortured artist
Used to be in the Eagles
Now he whines
Like a wounded beagle
Poet of despair!
Pumped up with hot air!
He's serious, pretentious
And I just don't care

Don Henley must die!
Don't let him get back together
With Glenn Frey
Don Henley must die!

Turned on the TV
And what did I see?
This bloated hairy thing
Winning a Grammy
Best Rock Vocalist?
Compared to WHAT?
Bunch of pseudo-serious crap
takes a manic Satanic plot

Don Henley must die!
Put a sharp stick in his eye!
Don Henley must die!
Yea yea yea

(guitarist plays 'Hotel California' riff)

Quit playin' that crap
You're out of the band

I'm only kidding
Can't you tell?
I love his sensitive music
Idiot poetry, swell
You and your kind
Are killing rock and roll
It's not because you're O-L-D
'Cause you ain't got no soul

Don't be afraid of fun
Loosen up your ponytail
Be wild, young, free and dumb
Get your head out of your tail

Don Henley must die!
Don't let him get back together
With Glenn Frey

Don Henley must die!
Put him in the electric chair
Watch him fry!

Don Henley must die
Don Henley must die
No Eagles reunion!
The same goes for you, Sting!
8.4.2009 5:31pm
Steve2:
Calderon didn't mention it, but I will: Body Count's "Cop Killer" did name a specific officer, although I don't think it would be reasonable to construe the lyrics as a "true threat" against Daryl Gates.
8.4.2009 6:35pm
einhverfr (mail) (www):
Looking at the lyrics here, it seems that one of the fundamental issues has to do with interpretation of the lyrics.

It seems to me that a reasonable person would read this as "I am tired of putting up with crap. Someday maybe you will get me on the wrong day and I will shoot you."

I have no idea whether saying the above to a police officer would be constitutionally protected or not. On one hand it seems like the sort of abstract threat that wouldn't necessarily fall under the true threat category. But it could be interpreted as a threat relating to police behavior as well.

Without a trial, I don't see an issue which could be the subject of appellate court review.
8.4.2009 6:54pm
Ricardo (mail):
Calderon didn't mention it, but I will: Body Count's "Cop Killer" did name a specific officer, although I don't think it would be reasonable to construe the lyrics as a "true threat" against Daryl Gates.

That's because of the context. Here are the lyrics:

"Fuck the police, yeah!
Fuck the police, for darryl gates.
Fuck the police, for rodney king.
Fuck the police, for my dead homies.
Fuck the police, for your freedom.
Fuck the police, dont be a pussy.
Fuck the police, have some muthafuckin courage.
Fuck the police, sing along."

If it is a threat against Darryl Gates, it is also a threat against Rodney King, which makes no sense. These are just filler lyrics.
8.4.2009 10:41pm
Ricardo (mail):
I'm with JamesWN here; why isn't this rap protected by Watts v. United States (1969)? The defendant there said (in protesting the draft, among other things) that "If they ever make me carry a rifle the first man I want to get in my sights is L.B.J." The S Ct held that was protected as "'a kind of very crude offensive method of stating a political opposition to the President.'"

Calderon, I skimmed through Watts v. U.S. since I had forgotten about it but it's not clear whether it applies here or not (again, we need more facts to know what cases are or are not applicable). The Supreme Court cited four facts unique to the Watts case in making its decision:

1. The statement was made at a political meeting after attendees had broken into smaller groups.
2. The statement was greeted with laughter from the members of Watts' group. Therefore, it's reasonable to think that the statement was political hyperbole rather than the statement of an actual intent to assassinate the President.
3. The statement was conditional on Watts' being inducted into the United States military: "if they [the U.S. military] ever make me carry a rifle..."
4. Watts himself mentioned that he was going to refuse and ignore any draft notice he received. As a matter of objective fact, the government can threaten you with prison if you refuse the draft but cannot actually "make [you] carry a rifle." Therefore, the condition for his supposed killing of the President would never be satisfied in the first place.

If Watts had stood up in front of the entire group and said, "I'm tired of all this war-mongering. Some day, I'm going to lose it and pick off L.B.J. the same way Oswald killed Kennedy." the decision might have been different.
8.4.2009 10:59pm
Ricardo (mail):
Here, not only does he threaten his subject Jay-Z with death by a previously mentioned "nine shots from [his] Glock" lyric, but he also threatens every single person on the the rapper's record label, Rocafella Records, with a similar fate. In other words, this kind of immature boasting is not novel to to the genre.

No, it isn't. Nor are drive-by shootings of record label executives or rappers novel to the genre. Rappers aren't known for running to the police when they are threatened, though. They are more likely to settle disputes like these outside the legal system. That doesn't mean if someone wants to actually press charges that the legal system should not take those charges seriously.

The fact that you put a death threat in the form of rap lyrics rather than in the form of an anonymous letter or late-night phone call doesn't automatically give it First Amendment protection.
8.5.2009 2:02am
whit:

Among oter things, the "threat" was not made directly to anyone. A "Polk County gang detective found the song on a MySpace page belonging to Hood Certified Entertainment". If the detective had not looked on that page, no one was "threatened" since the officers would never have known about it.

If a threat is made in the forest and no one was there...


as i understand it, this is irrelevant (assume that there was no intent to communicate the threat to the victim, but the victim did receive the threat).

i actually testified in one of the longest and most complex trialsof my career, and such was mentioned.

in this case, an inmate told his roommate that he was going to kill the witness who testified against him. it was pretty clear that the suspect did NOT intend the threat to get back to the victim. the threat was quite detailed fwiw and involved use of a hitman, and explanation of how to dispose of the body, etc.

anyway, the roommate told his DOC (parole) officer after he (the roommate) was paroled. that DOC officer told the suspect's DOC officer. that DOC officer advised the victim.

iow, the critical element is that the threat is communicated to the victim, NOT that the suspect intended it to be, nor does the fact that there were multiple intermediaries matter.

fwiw, it took me 3 (iirc) interrogations before i got a confession (on different dates), and suspect even attempted to use an alibi witness who was easily discredited before testimony when he was questioned as to several time and place factors that evidenced he was lying.

also, the nifty (or not) thing about such threat cases is that the victim could testify to past violent acts of the defendant (which supported his REASONABLE belief that the threat would be carried out), to include even uncharged crimes (with multiple witnesses at least).

so, in brief, as i understand it, there need not be an intent to communicate the threat. it merely matters that the treat IS communicated. i'm typing with one hand (post surgery) so forgive any typos and such.
8.5.2009 6:44am
David Schwartz (mail):
Whit: So if I invent a brain-reading machine and scan your brain against your will and retrieve a threat to kill me, *you* should be criminally liable?

Here there is no intent to communicate. The threat is communicated. And so on.

This is a pure thought crime. Though in this case, he did communicate it, that does not seem to be a required element, right? All that's required is that his thoughts get to the victim somehow?

Sorry, that can't be right. If that's the law, the law is an ass.
8.5.2009 7:04am
DennisN (mail):
Ricardo


"Fuck the police, yeah!
Fuck the police, for darryl gates.
Fuck the police, for rodney king.
Fuck the police, for my dead homies.
Fuck the police, for your freedom. ...

If it is a threat against Darryl Gates, it is also a threat against Rodney King, which makes no sense. These are just filler lyrics.


Not unless it's also a threat against his dead homies and your freedom. The lyrics are simply using the "fors" as emotional triggers, mixing perpetrators, victims and concepts. It may be a threat against the police, but I don't see a direct threat against Darryl gates.

"Fuck the police," is hardly specific enough to be a true threat anyway. If I said to you, "Fuck you and the horse you rode in on," (which I do not except rhetorically, here) would that be a threat? I think not, simply an insult. Well, maybe a threat to the horse. ;-)
8.5.2009 11:55am

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