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).
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.
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?
(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?)
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.
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?
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:
(From p. 104 of this book.)
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.
But at least the state of the law depends upon a future ruling on any First Amendment substance in the appeal.
"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.
Not to mention 2 years of the life of a young man...ughh
And taking decisions about cases out of the hands of clients, especially those facing years in prison, improves the state of the law how?
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.
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?
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.
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.
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.
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?
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.
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.
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.
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?
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:
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?
I think the only thing proven here, is that if you don't defend your rights, they can be taken from you with impunity.
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.
***
(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)
These lyrics are the sole evidence of this alleged “plan” ?
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.
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.
Possible evidence that the law is out of step with mainstream American thought? Not that this is a new thing, necessarily.
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.
The robbers may be playing cops-and-robbers but that doesn't mean the cops are playing.
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...
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?
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.
Getting convicted is the best thing he could have possibly done for his career.
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.
Possibly a toss-up with getting shot, though.
Might have to go to trial on the second victim, though.
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.
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.
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!
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.
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.
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.
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.
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.
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.
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. ;-)
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