Online Threats and the First Amendment: When I Have to Say I Hate You in a Song

Online Threats and the First Amendment

Two recent cases have come before the Supreme Court on the issue of whether threats in song lyrics including posting them online were protected by the First Amendment.  In each of these cases, the Court avoided the issue, meaning that it may have to be resolved in the future.  Would that create music censorship?  What about free speech?

Social Media and Song Lyrics

In a previous blog, we discussed the case of Anthony Elonis.  Mr. Elonis posted Eminem song lyrics about his wife including “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.”  After getting a visit from a female FBI agent, he posted, “Little agent lady stood so close, took all the strength I had not to turn the [expletive] ghost.  Pull my knife, flock my wrist and slit her throat.”

Although the parties argued the First Amendment issue, the Supreme Court decided the case on a narrower statutory basis.   The Supreme Court found that under the Federal criminal statute at issue “the prosecution needed to show that Elonis intended the posts to be threats, and therefore that there was a subjective intent to threaten.”

Naming Names

In the more recent case, a rapper from Pittsburgh, Jamal Knox, was convicted of threatening police in a rap song.  Knox’s song, “[Expletive] the Police,” named two police officers that had previously arrested him.  In addition, he wrote, “Let’s kill these cops they don’t do us no good.”  The song was posted online on various platforms including Facebook and perceived as threats against the officers.   Mr. Knox’s attorney argued that the song was art and that his client didn’t intend to kill any police.  Knox was convicted of making threats and appealed his conviction to the Supreme Court.

Despite the fact that Knox’s conviction did not involve proof that Knox specifically intended the threat, the Supreme Court declined to hear the case.  Accordingly, it is still unclear whether a showing of subjective intent is required by the First Amendment.

In Summation

The Courts have consistently recognized that if a person intends to threaten another and does so, that speech is not protected by the First Amendment.  What is less clear is whether the First Amendment allows a person to be prosecuted for words that are “objectively” threatening without proof of specific intent to threaten.

For more information, check out our podcast on free speech.

 Sam Ventola has a wide variety of experience in litigation, legal education, and mediation.  When he is not protecting our free speech rights, he enjoys volunteering in his community and spending time with his family, especially his grandson, Jack. 

Ventola Law serves the Denver Metro area including Arvada, Aurora, Boulder, Brighton, Commerce City, Castle Rock, Golden, Lakewood, Littleton and Arapahoe, Adams, Douglas and Jefferson Counties.