Nine of the 12 federal courts of appeal have held that threatening speech does not deserve First Amendment protection, regardless of the speaker’s intent. What are the implications for rappers like Tiny Doo, or Eminem? The latter artist shot to fame with The Marshall Mathers LP, which contained several songs expressing fury toward his ex-wife. Several of these, including “Kim,” “Kill You” and “Criminal,” Elonis cited in his brief as the model for his own lyrics. In “97 Bonnie & Clyde,” one of the songs cited in Elonis’ brief, Eminem says:
Da-da made a nice bed for mommy at the bottom of the lake
Here, you wanna help da-da tie a rope around this rock? (Yeah!)
We’ll tie it to her footsie, then we’ll roll her off the dock.
There goes mama, splashin’ in the wa-ta
The tone is very close to some of Elonis’s lyrics, but Eminem has never been charged with a crime based on his lyrics. It’s not because his lyrics are “harmless,” either: After his songs were released, the famous rapper’s wife attempted suicide. At oral argument in Elonis, the government argued that Eminem’s case was different because he “said it at a concert where people are going to be entertained.”
This potential double standard for celebrities and non-celebrities makes police, prosecutors, and judges into arbiters of who is an artist and what is art. Most live in a different world than the rappers they assess. Judges may tolerate a commercially successful rapper’s words. But the more radical messages within the genre—as in other forms of outsider art—may run up against judges who do not understand or approve of the subculture that spawns them. Hip hop is not the first genre to elevate lyrical expressions of revenge. The artistic space in many musical forms is a site of fantasy, in which imagined actions that have no relation to the real world the singer lives in, or the people in it, can be expressed.
Beyond that, the prevalence of “persona rap” cautions against taking lyrics too literally. In persona rap, the rapper takes on an alternate identity. Eminem rode to fame in a car driven by his Slim Shady persona. In “Twin Hype Back,” the DJ Prince Paul, speaking in the voice of Chest Rockwell, asks, “How you feeling now sweetheart? A little more relaxed? Maybe it’s that half a molly I put in your Mountain Dew.” In the song “Bad Bad Daddy” by the hip hop group Atmosphere, MC Slug brags about neglecting his children: “You can find me over there at the bar” and “you ain't even gotta ask I don't know where they are.” These songs don’t prove that Chest is a date rapist, or that Slug is a bad parent, any more than the soliloquies of Hannibal Lecter prove that author Thomas Harris is a serial killer.
Other legal factors complicate Elonis’ case. Before he began posting as the rap persona Tone Dougie, Elonis, as Elonis, posted a series of horrific statements against his ex-wife. Among them was a suggestion that their son “should dress up as matricide for Halloween.” Because of these circumstances, one possible outcome is that Elonis could be retried and convicted even under the stricter standard that judges his subjective intent, and not just whether a reasonable person would find his speech threatening. If the Supreme Court remands the case back to a lower court on those grounds, the business of judging rap lyrics could fall to juries instead of judges.
The publicity hasn’t been entirely negative for Tiny Doo, whose songs have racked up more than 10,000 hits on the audio website Soundcloud since the state indicted him. But might other rappers start scrubbing their lyrics to avoid being threatened with life in prison? The real threat from a case like Tiny Doo’s (and even Anthony Elonis’s) is that the government will chill the expression of inner pain that makes art powerful, whether judges and jailers like it or not.