Will Top Court Challenge Prosecution of Rap?

Erik Nielson and Charis E. Kubrin, CNN, June 23, 2014

Last week, the U.S. Supreme Court agreed to hear arguments in Elonis v. U.S., a case that dates back to 2010, when 28-year-old Anthony Elonis was charged with multiple counts of communicating threats after he posted a series of violent messages to Facebook.

Although Elonis maintained that many of the posts, which included menacing statements directed at his wife and a female FBI agent, were merely rap lyrics, the jury was unconvinced. He was found guilty on all but one of the counts and was sentenced to 44 months in prison.

The Court’s primary purpose in taking on Elonis v. U.S. will be to clarify what actually constitutes a “true threat.” Today, courts across the country are using dramatically different standards: Some argue that subjective intent is important in determining whether something is a threat, while others do not, focusing instead on how a “reasonable” person would interpret a message.

Since the Supreme Court hasn’t addressed this issue directly in over a decade–a period that has seen the explosion of social media and, with it, a radical shift in the way we communicate–the time is certainly ripe for a new look.

But the timing of Elonis is crucial for another reason. Over this same decade, we have also witnessed the rapid expansion of prosecutors’ use of rap lyrics as evidence in criminal proceedings. In the last two years alone, we have served as expert witnesses or consultants in dozens of such cases, and our research suggests there have been hundreds more across the country.

Rather than acknowledge rap as a fictional form told in rhymed verse, one that privileges figurative, often hyperbolic, speech delivered by an invented character, prosecutors have become skilled at convincing judges and juries that the lyrics are autobiographical confessions of illegal behavior or evidence of a defendant’s motive or intent with respect to an alleged crime.

In effect, they have used the judiciary to re-define rap music as something other than art.

Given research demonstrating the prejudicial effect that rap, especially violent “gangsta” rap, can have on potential jurors, it’s no surprise that prosecutors misrepresent the genre in this way. Nor should it come as a surprise that the overwhelming majority of defendants in these cases are young black and Latino men.

Rap has always carried the baggage of America’s enduring fears about young men of color, even as its history is rooted in a broader hip hop culture that was conceived by many artists as an alternative to violence, a tool to educate, and a pathway to a better life. {snip}


Unlike Skinner, the Elonis case is in some ways atypical of others we’ve seen: Elonis himself is white, and unlike many defendants, he shows no sign of aspiring to be a professional rapper. (He claimed to be using rap as a “therapeutic” medium through which to vent his frustrations, while his wife said he had not regularly listened to rap music and that she had never seen him write rap lyrics during their seven-year marriage.) In one respect, though, his case is frighteningly typical.

Whereas rap is usually used to demonstrate a defendant’s involvement in some underlying offense, there is a rapidly growing strain of cases in which rap itself constitutes the crime. As with Elonis, the lyrics, often posted via social media, are treated as threats and prosecuted as such. And jurors who are perfectly “reasonable” will convict, even when the defendant is merely following the conventions of a musical genre that, like horror films or gangster novels, shouldn’t be confused with reality.

At his trial, Elonis claimed that his lyrics were heavily influenced by Eminem, the best selling rapper of all time who rose to fame by pushing the lyrical envelope–even to the point of fantasizing about killing his wife, not unlike Elonis did when he posted, “There’s one way to love you but a thousand ways to kill you. I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

Elonis maintained he never intended to act out his lyrics, again echoing Eminem, who made the critical distinction between art and reality when he said, “I do say things that I think will shock people. But I don’t do things to shock people.”


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