The Supreme Court is mere months away from a decision that could affect literally every American who posts rap lyrics to social media. Today, the Court began hearing arguments for Elonis v. U.S., a case that began in Pennsylvania in 2011. It concerns Anthony Elonis, a 27-year-old man who in 2010 began posting violent Facebook messages about his estranged ex-wife, a female police officer, and an elementary school. All of the messages were written in lyrical form.

He was charged with multiple counts of communicating threats and was sentenced to 44-months in prison. Elonis defended himself at the trial by insisting that his rap lyrics were therapeutic and fell in line with how conventional rap music is written and produced.

Elonis’ appeal began at the Supreme Court today. Opinions amongst the Justices were passionate and divisive. Justice Samuel Alito interpreted Elonis’ lyrics in a literal manner, saying this of his defense: “[his position] sounds like a road map for threatening a spouse and getting away with it.”

Justice Department lawyer Michael Dreeben ​called for context, saying that juries need to consider the circumstances behind every threat. Dreeben maintained that there's a difference between entertainment and what Elonis was posting, and that that gap must be considered.

But what about the First Amendment? Freedom of speech and all the jazz, you know? Justice Elena Kagan harped on the topic, saying that the federal government’s proposed standard of finding someone guilty because they should’ve known whether or not their posts could be deemed threatening to one party was insufficient. “That’s not the kind of standard that we typically use in the First Amendment,” said Kagan.

Chief Justice John Roberts also took the government’s case to task. He questioned the precedent that the government was attempting to establish, because it could potentially give prosecutors license to go after rappers for releasing songs with violent or threatening lyrics. (Newsflash: It already has. )

In Roberts’ full brief, he quoted Eminem’s “ '97 Bonnie and Clyde” during his questioning—a fine choice, given the argument.





The Supreme Court’s appeal hearing comes on the same day that Killer Mike co-wrote a column for USA Today on how rap music has been used for prosecution. Killer Mike, who’s been speaking out for Ferguson , cited how state courts have reached inconsistent verdicts in cases similar to Elonis. He pointed out that while the New Jersey Supreme Court recently overturned a verdict for a man found guilty of attempted murder because of how prosecutors used his rap lyrics as evidence, that isn’t the case elsewhere—the Nevada Supreme Court has generally allowed the admission of lyrics as evidence.

The crux of Killer Mike's argument should be read as is though:

"As recent research has revealed, rap lyrics have been introduced as evidence of a defendant's criminal behavior in hundreds of cases nationwide, frequently leading to convictions that are based on prosecutors' blatant mischaracterizations of the genre. Ignoring many of the elements that signal rap as form of artistic expression, such as rappers' use of stage names or their frequent use of metaphor and hyperbole, prosecutors will present rap as literal autobiography. In effect, they ask jurors to suspend the distinction between author and narrator, reality and fiction, to secure guilty verdicts."

He went on to say that, "no other fictional form — musical, literary or cinematic — is used this way in the courts," while also pointing out all of the undeniable good the genre has done for the African American community. "It has offered countless young men and women opportunities to escape the poverty and violence in America's urban centers," he wrote.

Be sure to read Killer Mike's column here. The Supreme Court is expected to reach a decision on Elonis v. U.S. in June 2015.

[via The Wall Street Journal]