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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  • However, there have been some cases where some rappers, black of course, have been dumb enough to confess to murders in their rap lyrics, and the cops use them as clues to clear years old and years cold homicide cases. In those cases, the lyrics aren’t evidence, they’re clues that the cops use to make a suspect, and from there they gather real evidence.

    As for Mr. Elonis, I don’t see why he doesn’t like prison. After all, he’s with his adopted people.

    • Adolf Verloc

      I have little doubt that his newfound brothers will welcome him with open arms, so to speak.

      • Sick of it

        Oh no, I imagine they will be hugging him VERY tightly…

    • Oil Can Harry

      In a similar vein narcocorridos are Spanish language ballads where Mexican gangstas brag about their murders and drug deals.

  • Adolf Verloc

    In one sense, this case has nothing to do with race: a white goon inspired by a white rapper. But it is high time that this “art” be denounced as garbage that bears the same relationship to music as pornography does to literature. I wonder what black composers and musicians with real ability from Duke Ellington to Wynton Marsalis would say to this.

    • dukem1

      they would say they love it…anything to stick it to yt

      • Adolf Verloc

        They might – it would be culturally unacceptable not to. But there truly are black musical geniuses, at least in the past. Ellington in particular would be considered a major talent in any list of composers you could make.

        • ElComadreja

          It’s all in the past. I can’t think of a black that’s done anything memorable or innovative since at least the 70’s.

      • ElComadreja

        You’re absolutely right. I’ve heard black musicians that obviously know better praise (or at least refuse to say anything negative about) rap. “Solidarity of the race”, you know. It’s good for everyone but whitey.

  • Samuel_Morton

    What’s more stupid: black people claiming that violent threats on Facebook are actually rap lyrics, or white people believing them?

    • ElComadreja

      White people that “perform” rap might top the list.

  • Tywon Poe

    If you switch the races Eric Holder would have to hire more attorneys to prosecute all the hate crimes.

    • WhiteGuyInJapan

      When Jim Goad was arrested for assault, his writings were used against him in court. A la Dostoevsky.

      • Lagerstrom

        I didn’t know that, but I’m not suprised. A very naughty boy, our Jim.

  • JohnEngelman

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

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

    Rap music never was art. It is ugly and morally depraved.

    In 1971 the Temptations released “Just My Imagination.”


    “Just My Imagination” was about unrequited love. Can you imagine a rap song about unrequited love? I can’t either.

    • Lagerstrom

      No. Wouldn’t want to hear it.

    • ElComadreja

      A mere five years later rap started rearing it’s ugly head.

  • “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.”
    Sounds like a death threat to me. Guilty, your honor.
    Obviously, the idea here is to give blacks a free pass to make death threats, thus fulfilling Eric Holder’s dream of keeping blacks out of prison. The problem is that once they get away with death threats, the next logical step, all hopped up on adrenalin, is to murder.

    • Lagerstrom

      Doesn’t even rhyme.

      • Pro_Whitey

        What, you don’t like “rest” and “mess”? “Blood” and “cuts”? There’s innate poetry in Shakespeare’s plays, where the dialogue often moves along in iambic pentameter, sometimes beginning with one character’s line and ending with another’s, providing an underlying rhythm to the dialogue. That crap music doesn’t even achieve any consistent meter or rhythm.

  • Martel

    A generation of ”wiggers” entered journalism, and this is what you get.

  • MBlanc46

    I generally err on the side of protecting freedom of speech. As with many legal questions, I’m not sure the same principles apply when it’s Negroes we’re talking about.

    This does bring to mind the “rap” I got on my answering machine years ago when I lived on the South Side of Chicago. Apparently a drug deal had gone wrong and the guilty party was being threatened about what was going to happen to him. It was clearly a wrong number. It had nothing to do with me, but someone was definitely being threatened.

    If a “rapper” makes statements about some other “rapper” being killed, and a few days later “rapper” number two winds up dead, I’d think that a threat is the most likely explanation.

    • I used to get collection calls for the house sitter who stole from me. I used to jack with the bill collectors pretty mercilessly and only eventually gave them the phone number for Chris’s parents. There was one from a call center in India who I reduced to tears by ridiculing his accent. I don’t care; they thought I was Chris. I wish to dear God I’d been able to field a call for him from a drug dealer.

      Now I simply tell the bill collectors where he is: life in prison at Fremont for molesting children.

      • MBlanc46

        On the one hand, I’m glad that someone is getting back at bill collectors. On the other, I’m truly sorry for anyone is reduced to that sorry station in life.

        • TXCriollo

          Its a double edge sword with them, i used to have a credit card that was a scam i still get calls about it and i explain i paid it off and closed it. The indian ppl seem not to get it, so one they chose that job and two i do not feel bad for getting loud with them

          • MBlanc46

            I never deal with them. On the one occasion where I did have a bill payment problem, once it was called to my attention, I dealt directly with the vendor.

          • TXCriollo

            Ya i do that now i had an issue with boa called them fixed it paid off 50 bucks they reopend my account. I feel less people pay because of the indian call centers


    “In effect, they have used the judiciary to re-define rap music as something other than art.” – No, the only re-defining going on here is the attempt to re-define the noise of what is commonly known as rap. As not only being music, which it’s not, but as actually being art! Which is so wrong I’d have to say it’s down right blasphemy!

    I love how they always attempt to compare the negative culture that Rap “music” builds to Hollywood movies. As if rap “music” has no more effect upon culture than the typical movie. Sure, yeah when you see all the Homies on the corner dressed as Robocop and emulating their favorite Power Ranger, you let me know.

  • TruthBeTold

    There’s a myth (largely media driven) that the police have amazing investigative skills and can track down any criminal.

    It’s not true.

    A large number of criminals get caught because they either tell someone or they go around bragging.

    All that media forensic stuff is just icing on the cake in court. It’s the perps own hubris.

    • ElComadreja

      “Three can keep a secret if two are dead”. Most people get caught because they can’t keep their mouths shut.

  • JustAnotherWhiteGuy

    In the rap world it’s an ultimate sin to rap someone’s else’s lyrics. in the gangster rap world it’s a sin to take credit for a crime you didn’t do (“earning your stripes”)

    you can bet the vast majority of these people are guilty as he’ll.

  • ElComadreja

    Well good for him I must say. There have been others (“Prince” for instance) that denounced rap at first but later fell into line. Even B.B. King can’t bring himself to criticize it.