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Olivas – SCOTUS and Rap Lyrics

Michael A. Olivas
Michael A. Olivas

June 1, 2015 – The U.S. Supreme Court today reversed and remanded a lower court decision that had ruled profane and hateful rap lyrics directed at another person constituted a threat of violence. The court ordered the review under criminal law rather than civil law standards. University of Houston Law Center Professor Michael A. Olivas, William B. Bates Distinguished Chair of Law, director of the Institute of Higher Education Law & Governance, and renowned authority on popular music, explains the decision and the effect it may have on future free speech and social media issues.

I Shot the Sheriff, But Not Really: Supreme Court Overturns Rap Lyrics Case
Michael A. Olivas

After a serious domestic dispute, Anthony Douglas Elonis went on Facebook and uploaded a form of hateful rap lyrics that were taken as threats by his wife and others, including an FBI agent who was investigating the postings, which were nasty and graphic. He lost his job as a result of the matter. After a jury trial, he was convicted of several federal counts of communicating “any threat [that would] injure the person of another.” He argued that his postings did not constitute a “true threat” and that he was entitled by the First Amendment to post his thoughts. The trial court and the Third Circuit held that a “reasonable person” standard of negligence applied and that the language was understood by the intended parties as genuine threats. In recent years, a number of rappers and social media posters have been both charged and convicted of a series of crimes involving such rantings and angry language as Elonis employed, even though he also posted that they were not threatening and that he was venting.

In a 7-2 opinion, the U.S. Supreme Court reversed and remanded to the lower courts, ordering them to revisit the issue under a different standard, one more in conformity with criminal law requirements, particularly ones that exacted more of an element of intention and foreseeability: Chief Justice Roberts wrote that “Elonis’s conviction was premised solely on how his posts would be viewed by a reasonable person, a standard feature of civil liability in tort law inconsistent with the conventional criminal conduct requirement of ‘awareness of some wrongdoing.’”
This Elonis v. U.S. decision will not resolve the tension between free speech and criminal law concerns about stalking and violent threats, but it does require that courts provide clearer instructions and better account for a greater “ mental state requirement.” Given the rise of social media, immediate access to large audiences, and the ease with which virtual postings can circle the world, cases such as this are sure to return, no matter the review by the lower courts on remand. (Elonis v. US decision)

Olivas is also the host of a weekly show (“The Law of Rock and Roll”) which appears on the Albuquerque, New Mexico NPR station, KANW.