@4 hours ago with 154 notes
#law #SCOTUS #first amendment #rap music #Elonis v United States
"Ruth Bader Ginsburg had to have her new moniker, Notorious R.B.G., explained to her by her clerks. But you can’t always count on clerks to really understand rap. So a new amicus brief filed by Clay Calvert on behalf of Nielson and Kubrin, together with the Marion B. Brechner First Amendment Project at the University of Florida in Gainesville, presents the history and essence of rap music."
Dahlia Lithwick, Schooling the Supreme Court on Rap Music, Slate (Sept. 17, 2014).
I’m going to have to find some time to read that amicus brief (which I believe is linked in the above article).
On a more serious note, I don’t know how to feel about this case. There’s really a lot going on here— it seems to involve so many complicated issues:
- free speech vs. “true threats”,
- posts to social media that can really easily be read as threats of extreme violence,
- the right of artistic expression,
- societal biases that cause a lot of people (especially white people) to see rap music as inherently criminal,
- whether a third party’s objectively reasonable fear or the author’s actual intent should be the deciding factor, etc.
My gut instinct is to say the lower court’s instruction on the “reasonable person” standard was correct. I see some danger down the road, especially in cases where a person leaves their abuser, who then posts threatening language about the person who left but with the disclaimer that they don’t mean what they’re saying literally.
At the same time, this is a criminal case, and I do admit that a specific form of intent is a required element that must be proved to convict for most crimes.
That’s not even getting into some of the other complicating factors about this case, but I really don’t know. I’d definitely be willing to debate/ hear arguments for both sides on this one.
Any other law nerds have thoughts on this?