Trial of Rap Music

M Jashim Ali Chowdhury

Published in the Daily Star, Law and Our Rights, January 27, 2015

Link: https://www.thedailystar.net/trial-of-rap-music-61848 

AS it happens in a usual American family, Anthony Douglas Elonis's wife severed their seven year long conjugal relation and moved out of the home with two young children in 2010. But Mr Elonis started doing something unusual. Losing peace, care and attention perhaps, he divulged into the American rap music of misogynistic tunes which he now claims to have some therapeutic value for his distress. Had he only listened to or sang some of those lyrics; it might have been quite okay. The problem with Mr Elonis is that he went one step further and posted some of those worst rap influenced vulgar and violence directed to his ex-wife in his facebook account. Convicted by the lower courts for criminal intimidation, he now appeals to the US Supreme Court seeking protection of his constitutional freedom of speech.

Hip hop in general is a cultural movement that comprises of several artistic elements like graffiti, break dancing and rap music. It emerged in 1970s as an expressive outlet for the youths of disadvantaged black communities in Bronx County of New York notorious for organised crimes. However, as the time passed on, rappers realised that sex and violence sells. They changed their focus from making music to making money. Now research shows that 22 percent of rap music deals with violent and misogynistic lyrics.

Convicted by the United States District Court of Pennsylvania, Mr Elonis moved the Third Circuit Court of Appeals. The Third Circuit confirmed the conviction and he appeals the Supreme Court. In his appellate brief to the Supreme Court, he argues that those apparently violent facebook posts directed towards his ex-wife should not be taken as an intimidation. As is said earlier, Mr Elonis believes that rather than conveying a threat of physical attack to his wife, the aggressive contents of his posts were serving some therapeutic dishes to him. Absent a proof intent to threat, it does not matter how his wife feels about it, Elonis argues.

This brings us to the question the Supreme Court faces in this case that, exactly what standard of interpretation is to be followed in judging a threatening speech? When should a person be convicted for a threatening speech? When he personally or subjectively intends to threat? Or when another person receives his speech as a threat?

It has been argued in Mr Eloni's petition that there are several attendant peculiarities of online communication which would call for a greater caution in this case. First, online speakers know less about their targeted audience. Second, personal reflections intended for a small audience (or even no audience) may reach to people who are unfamiliar with the context in which the statements were made. Third, these communications can easily be decontextualised by audience to whom the tone and mannerisms of the speaker may be unknown. Given the situation, a receiver's perception approach to such communications would subject its author to a heckler's veto, whereby hostile listeners would enjoy an ad hoc veto power over a speaker's freedom of expression. Watson v Memphis, 373 U.S. 526, 535 (1963). This is why some feels that the listener's perception standard poses a serious risk of criminalising “poorly chosen words”.

As Justice Harlan of the US Supreme Court once put it, “one man's vulgarity is another's lyric.” Cohen v California, 403 U.S. 15, 25 (1971). The US Supreme Court has consistently recognised the protection of music as a form of artistic expression. As the petitioner Elonis testifies that his facebook posts were inspired by Eminem, his trial becomes a trial of rap music in the alternative.

As the Supreme Court of New Jersey has accepted in August, 2014, rap constitutes “a genre that certain members of society view as art and others view as distasteful and descriptive of a mean-spirited culture,” yet it is simply one of the “fictional forms of inflammatory self-expression, such as poems, musical compositions, and other like writings.” New Jersey v Skinner, 2014 N.J. LEXIS 803, (N.J. Aug. 4, 2014). But the dilemma for the Supreme Court here is that rap song is extremely violent and extremely popular! So what to do? One of the amicus briefs suggests this:

“A careful and contextualized reading is necessary to avoid catastrophic judicial error. Take GZA (a celebrity rapper), for example. When he raps, “I'll hang your ass with this microphone” and later warns “I come sharp as a blade and I cut you slow,” he must be asserting his virtuosity as a lyricist rather than making literal threats of violence. Recognizing this type of emblematic flexibility is a sine qua non to interpret rap music.”

As the case is pending for judgment, it remains to be seen whether the US Supreme Court is convinced or not.

The writer is currently pursuing LL.M in Tulane University Law School, USA.