Rob Burgess

Author’s note: As per usual for this time of year, the Supreme Court issued a slew of consequential rulings recently on a bevy of hot-button issues. This is the second in my third annual three-part series exploring a few of them.

Having only seen some of his lyrics written out, I’m guessing Anthony Douglas Elonis (or “Tone Dougie” as he’s known) will never crack my top five favorite rappers. But like most First Amendment fights that make it to the Supreme Court, Elonis v. United States tests detestable speech. The 7-2 opinion in the case, which was argued Dec. 1, 2014 and decided June 1, was written by Chief Justice John Roberts.

“After his wife left him, [Elonis used] Facebook to post self-styled rap lyrics containing graphically violent language and imagery concerning his wife, co-workers, a kindergarten class, and state and federal law enforcement,” the decision read. “These posts were often interspersed with disclaimers that the lyrics were ‘fictitious’ and not intended to depict real persons, and with statements that Elonis was exercising his First Amendment rights. Many who knew him saw his posts as threatening, however, including his boss, who fired him for threatening co-workers, and his wife, who sought and was granted a state court protection-from-abuse order against him.”

Elonis eventually was arrested by the FBI for violating U.S. Code Title 18, Section 875, which makes it a federal crime to transmit in interstate commerce “any communication containing any threat … to injure the person of another.”

“At trial, Elonis requested a jury instruction that the government was required to prove that he intended to communicate a ‘true threat,’” Roberts wrote. “Instead, the district court told the jury that Elonis could be found guilty if a reasonable person would foresee that his statements would be interpreted as a threat.”

Elonis was convicted and appealed. Roberts overturned the ruling, but focused more on the mental-state question.

“Elonis’s conviction cannot stand,” Roberts wrote. “Federal criminal liability generally does not turn solely on the results of an act without considering the defendant’s mental state.”

Justice Samuel Alito wrote a concurrence/dissent in which he dismissed Elonis’ claims.

“Elonis claims his threats were constitutionally protected works of art,” Alito wrote. “Statements on social media that are pointedly directed at their victims, by contrast, are much more likely to be taken seriously.”

In his dissent, Justice Clarence Thomas was unconvinced.

“There is nothing absurd about punishing an individual who, with knowledge of the words he uses and their ordinary meaning in context, makes a threat,” he wrote.

I’m a fan of all good music, so I’m a musical omnivore. How many, say, country artists are being taken to task for their violent lyrics in court? In his 1955 country chart-topping single “Folsom Prison Blues,” Johnny Cash sang in character as a repentant prisoner. (In 1968, he performed the song for actual Folsom prisoners.)

“I shot a man in Reno just to watch him die,” he intones. No one thought to bring Cash up on charges for this fictional death. (How Marty Robbins escaped prosecution for his blood-soaked 1959 album “Gunfighter Ballads and Trail Songs,” I’ll never know.)

And I’m not remembering the arrest warrants issued for songwriter Dennis Linde or any Dixie Chicks for their 1999 song “Goodbye Earl.” Lead singer Natalie Maines tells us the tale of childhood best friends Mary Anne and Wanda, who “worked out a plan” to rid the world of the latter’s abusive husband. “And it didn’t take them long to decide that Earl had to die,” Maines sings. “Ain’t it dark, wrapped up in that tarp, Earl?”

I’m glad the court decided the way it did, but I would have appreciated a broader ruling that addressed the First Amendment issues. Unlike musicians who sing every other genre of music, the long list of rappers I could name who have their lyrics used by prosecutors for convictions and in extended, enhanced sentencing are too numerous to name.

Rob Burgess, Tribune night editor, may be reached by calling 765-454-8577, via email at rob.burgess@kokomotribune.com or on Twitter at twitter.com/robaburg.

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