The Eminem Show: Why The Supreme Court Is Debating Over Rap Lyrics

by John Haltiwanger

Who would've thought that the Real Slim Shady would end up a topic of discussion in the highest court in all the land?

On Monday, Eminem was at the center of a Supreme Court debate surrounding the First Amendment, freedom of speech, Facebook and rap lyrics.

This might sound ludicrous, but given the frequency at which people, particularly Millennials, utilize social media, it's extremely important.

Not to mention, rap music reveals a lot about this society's complicated relationship with violence, poverty and race.

An Angry Facebook Post Could Land You In Prison

The case that sparked this whole discussion is Elonis v. United States. It all started on Facebook when a Pennsylvania man named Anthony Elonis threatened his ex-wife in a series of violent posts.

In May 2010, Elonis' wife left him and took their two children. Subsequently, he took to Facebook and posted:

There's one way to love ya, but a thousand ways to kill ya And I'm not going to rest until your body is a mess, soaked in blood and dying from all the little cuts. Hurry up and die b*tch.

Elonis' graphic and disturbing language led his ex-wife, Tara, to obtain a restraining order. It barred Elonis from threatening, harassing or contacting her, even indirectly.

In spite of all this, Elonis continued to make threatening posts with violent imagery.

These included, "I've got enough explosives to take care of the state police and the sheriff's department” and “I’m checking out and making a name for myself Enough elementary schools in a ten mile radius to initiate the most heinous school shooting ever imagined ... The only question is ... which one?”

Consequently, Elonis was arrested and convicted in a federal district court of five counts of transmitting in interstate commerce “any threat to injure the person of another.” He was sentenced to 44 months in prison.

In other words, Elonis was found guilty of sending threatening communications to another person.

The tricky part about this case, however, is that it involves entirely new territory in terms of communications: Facebook and social media. Simply put, it's much clearer if a threat is being directed at someone if it's sent via an e-mail or letter.

This is a large part of the reason the case made it all the way to the Supreme Court. The debate is still ongoing, however, with a decision expected by summer.

In the meantime, it's important to understand the specifics of this case. It could potentially impact what we can say online as well as what rappers can write in their songs.

Know Your Rights... Making A Threat Is Illegal

Elonis attempted to defend himself by arguing that his posts were inspired by Eminem lyrics. His posts were often in rap lyric form and very similar to many Eminem songs.

It's no secret that Eminem has frequently rapped about killing his ex-wife, Kim. Not to mention, he's also made threatening statements towards other celebrities in his raps, particularly females. Likewise, in a recently released track, Eminem threatened to rape Iggy Azalea.

If Eminem, and other rappers, are allowed to make such threats in their songs, why couldn't Elonis do the same thing on Facebook?

This question was at the heart of Elonis' argument in defense of his actions.

Elonis argued that his posts weren't genuine, claiming he was just venting and didn't really intend to carry out any of the threats he made.

The court of appeals decided, however, that the law only required that "a reasonable person would foresee that the statement would be interpreted by those to whom the maker communicates the statement as a serious expression of an intention to inflict bodily harm."

Let's break this down.

Elonis contends that the government can't unequivocally prove that he intended to terrify others with his posts, stating they were "therapeutic." On the other hand, the Obama administration argues that a conviction for illegal threats could be obtained whenever “a reasonable person” feels endangered.

The First Amendment protects freedom of speech, but only to a certain extent. Openly criticizing the government is perfectly fine, sending an e-mail to a significant other and threatening to hurt him or her is not, even if there is no real intent. It's important to understand this distinction.

The "boy who cried wolf" is quite relevant in this regard.

Correspondingly, as Garrett Epps writes for the Atlantic:

Imagine the delinquent high-school kids who declare a holiday by phoning a bomb threat to the school. There is no bomb, and the kids wouldn’t set one off if they could. Nevertheless, school must be canceled. The building has to be evacuated. The bomb squad must don protective gear and sweep the classrooms. Students will suffer nightmares. And authorities may someday be tempted to ignore notice of a genuine planned bombing. The threat itself is the harm.

Therefore, making a threat is a crime because it can cause harm, even if it's empty.

Hip-Hop Exposes A Harsh But Important Reality

It's apparent that some are still concerned that the decision to convict and imprison Elonis sets a dangerous precedent in terms of self-expression.

Chief Justice John Roberts made the most impassioned argument in this regard. On Monday, Roberts recited the lyrics of the Eminem song "'97 Bonnie and Clyde" to his fellow Supreme Court judges. If you're not familiar with the song, it's about killing his wife.

When he was finished reading the song, Roberts asked, "Could that be prosecuted?"

As Daniel Kreps highlights for Rolling Stone:

The song parallels Eminem's own personal struggles and custody battles with his ex-wife at the time, and it perfectly illuminated the fine line between criminal threats and Freedom of Speech-protected art that is the backbone of this Supreme Court case.

Deputy Solicitor General Michael Dreeben maintained that rappers, like Eminem, are clearly expressing themselves for purposes of entertainment. Thus, their lyrics don't constitute an actual threat.

Concurrently, Roberts argued that this sets a standard in which established, or famous, entertainers are protected, yet aspiring artists are not. He asked, "What about the budding rapper who is writing his first rap song?"

This all comes back to how we define "a reasonable person" in relation to the way that threats are perceived.

It also pertains to the way that hip-hop is often characterized. In the case of Mike Brown and the events in Ferguson, Missouri, for example, a controversial New York Times article referred to the young man as "no angel" while also citing his interest in rap with violent lyrics.

Not surprisingly, this article infuriated a lot of people. Rap is often inherently violent because it is the artistic reflection of the tumultuous conditions in many of America's cities. This is a reality with which many of us are completely unfamiliar.

It's evident that many people are uncomfortable with hip-hop. Politicians have frequently criticized it for the violence it seems to condone.

Unquestionably, the stigma surrounding hip-hop is racially charged.

In truth, hip-hop tells the story of the struggles in the inner city. Yes, a lot of commercialized rap celebrates extravagance, misogyny and substance abuse, which opens it up to arguably justifiable criticism.

The most talented rappers, however, tell stories in the same way that mafia films like "The Godfather" and "Goodfellas" do. They expose listeners to a world of violence and crime that most of them will never fully understand or see.

The rapper Killer Mike recently wrote an op-ed on this in relation to Elonis' case, stating:

In choosing Elonis, the justices have stumbled into a national debate about the expanding prosecution of rap music, which raises major concerns about the role of art and free speech in the justice system, as well as the commonly-held view that hip-hop culture is a threat to society. ... Trust us on this: The kids spending hours per day writing rap songs aren't a threat to society; they are often trying to escape the threats from society.

If people want to criticize rap for being violent, then they also need to condemn television shows like "Breaking Bad," "The Walking Dead," and "The Sopranos."

There is an apparent double standard in this society surrounding rap as an art-form, and it's intrinsically linked with America's history of racism and discrimination.

At the same time, it's difficult to commend Elonis for the way in which he expressed himself. Yet, freedom of speech is built upon the notion that just because you don't like what someone has to say, doesn't mean they can't or shouldn't be allowed to say it.

This is precisely why the American Civil Liberties Union (ACLU) once defended a neo-Nazi group that wanted to march through a Chicago neighborhood where many Holocaust survivors lived.

If we don't defend everyone's right to expression, then we do a disservice to society as a whole.

As the Supreme Court continues to debate over this complicated case, let's hope that they remain cognizant of this.