The Supreme Court rules that for someone to be convicted of issuing threats, the person has to be proven to actually have intended to issue a threat.
Rap music is not your grandmother’s show tunes. Its lyrics have been characterized as off-color, profane, violent and misogynistic.
Recently, the Supreme Court was asked to decide whether rap lyrics with those characteristics that focused on particular individuals constituted “threats” for purposes of the federal criminal law. More specifically, the question was whether the federal law that makes it a crime to communicate a threat in interstate commerce requires the government to prove the defendant intended to communicate a threat or whether it is sufficient for the government to prove a reasonable person would have treated the defendant’s lyrics as threatening, regardless of what the defendant intended.
In 2014, The Heritage Foundation published a paper, which I co-authored, that argued the best interpretation of the statute was that it requires proof of a subjective intent to threaten someone else. In Elonis v. United States, the Supreme Court agreed.
After his wife left him, Anthony Douglas Elonis posted rap music-style lyrics on Facebook that he composed containing graphically violent language and imagery involving co-workers, a kindergarten class and state and federal law enforcement officers. Charged with violating a federal law making it a crime to communicate a “threat” in interstate commerce, Elonis argued that he did not intend to threaten anyone and was merely using extreme language as an exercise of his free speech rights.