When the chief justice of the U.S. Supreme Court recites lyrics from a rap song about violence and murder, you can bet he's not rehearsing for a shot on "Saturday Night Live." He's inquiring into the redeeming value of the crude and coarsened language of social media in the age of the digital.
Chief Justice John Roberts quoted the lyrics of rapper Eminem's popular rap about a man who killed his ex-wife and described the murder to their young daughter, whose help he seeks in getting rid of mommy's body: "Da-Da, make a nice bed for mommy at the bottom of the lake."
The justice, like every inquiring mind that wants to know, asks whether such graphic language by a rapper embroiled in a custody fight with his ex-wife could be interpreted as a real-life threat.
"Could that be prosecuted?" he asked the lawyer for one Anthony Elonis, whose client had been sentenced to 44 months in prison in violation of a federal law making it a crime to communicate "a threat to injure another person" through interstate commerce, i.e., the Internet. Elonis had created a fictional narrative about his estranged wife's "murder," which a jury determined made a "reasonable person" fearful.
If Eminem's lyrics were created to entertain, so then were those of Mr. Elonis, his lawyer replied: The difference was in the reaction to them rather than the intent, and both should be protected speech.
What the Supreme Court has to figure out now are the legal distinctions, if any, between Eminem's brand of entertainment and the argument of Anthony Elonis that he is an aspiring rapper whose angry rap on Facebook about the wife who left him is merely artistic creativity. Not only that, the words were "therapeutic" for him, not threats aimed at her.
A sample of the Elonis' Facebook "therapy" makes it a tough call: "There's one way to love ya but a thousand ways to kill ya. I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts." Perhaps attempting a touch of the literary, he writes about smothering her with a pillow, as if emulating Shakespeare's Othello.
The court is thus asked to believe such violent rants are harmless creative stories, merely salve for the wounds to an angry husband's psyche, balm for the hurt feelings of an aspiring star.
Whether Mr. Elonis regards himself as Eminem or the Bard, his estranged wife testified that she was terrified for herself and her children and felt she was verbally "stalked." After a lower court sent her husband a "protection from abuse" order, her fear increased when he asked, in a verbal post, whether the court order, if neatly folded in her pocket, would stop a bullet.
It's not difficult for the untutored layman to nod in agreement with Justice Samuel Alito's observation that calling this art "sounds like a road map for threatening a spouse and getting away with it." Such a finding would require juries to become pop music critics, and even mind readers, to figure out a defendant's psychological intent.
Nevertheless, the First Amendment is the gold standard inscribed in the Constitution to protect speech, not just responsible speech — but speech. We must not tolerate chilling speech. The question to ask is when does outrageous become dangerous, the irresponsible cry of fire shouted in a crowded theater. Where does rant end and criminal intent begin? Does the posturing of a rapper insulate his words with the First Amendment?
The Internet poses new questions because teenagers ventilate verbally with violent images that are commonplace in the rap culture. They can sound like threats. Teenagers target adolescent "enemies," and their real and imagined victims include peers, schools and, as in the protests in Ferguson, the police. Rappers like Eminem can be clever with words, but they're not exactly models for imitation.
Against the backdrop of the verbal violence of videogame chat rooms, it's difficult to distinguish "true threats" from empty exaggeration of adolescents who are loud but actually carry no stick. One teenager in a chat room has been charged with threatening to shoot up a kindergarten, and we're foolish to ignore all such threats, as schoolhouse violence has demonstrated.
The argument is difficult enough to puzzle eminent judicial minds. Should the basis for criminal activity be, as prosecutors argue, that a "reasonable person" must feel threatened, or as defense lawyers argue, the threatener must "intend" to create fear in a targeted victim. The Internet has in many ways become the trashcan of an indulgent culture, and obscene and misogynist language in much of rap poisons us all, particularly the minds and imaginations of the rising generation, threatening their perceptions of the world around them. That's the real chill.