Polk Law Blog

A recent Polk County case almost raises an interesting and possibly novel legal issue. A Lakeland rapper wrote a rap called “Kill Me a Cop.” The lyrics reference our local sheriff and a local police officer by name and describe a desire to do as the title describes. He ended up with a two-year prison sentence. The Ledger did a good, informative article on the story. The interesting question is simply this: is the rap protected by the first amendment?

The Ledger story was picked up by Eugene Volokh, a prominent legal scholar who blogs at The Volokh Conspiracy, a fantastic legal blog¹. His take:

My sense is that the specific reference to the two police officers would indeed make this into a potentially punishable threat, at least if it could be shown (had the case gone to trial) that the defendant had the purpose of threatening the police officers. It’s true that in some contexts speech can be pretty clearly fictional or hyperbolic, so a reasonable person wouldn’t perceive it as a serious threat, and a reasonable jury would conclude that the speaker didn’t have the purpose of threatening the target. But this is not clearly so in this context (though the defendant would be free to make the fiction argument to the judge and then to the jury, if the case had gone to trial).

In plain English: If a reasonable person would perceive this song as a threat against the named officers, the statement is not protected by the First Amendment.

As Prof. Volokh’s post goes on to state, the legal standard involved is described in the U.S. Supreme Court case of Virginia v. Black.

“True threats” encompass those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals. See Watts v. United States, supra, at 708 (“political hyberbole” is not a true threat); R. A. V. v. City of St. Paul, 505 U.S., at 388. The speaker need not actually intend to carry out the threat. Rather, a prohibition on true threats “protect[s] individuals from the fear of violence” and “from the disruption that fear engenders,” in addition to protecting people “from the possibility that the threatened violence will occur.”

The concept of threats communicated on the internet is an interesting legal topic brought to the fore by (relatively) new statutes that have sought to prohibit cyberstalking. For the curious, brief summaries of legal cases involving the first amendment and the internet are available from the Electronic Freedom Foundation’s Internet Law Database.

A second question could be raised over the assertion that the defendant did not know the lyrics were posted online. If he was not aware, as he claims, how could he have intended it to be a threat?

The defendant pled guilty in this case, so it is unlikely (though I guess not impossible) for anything interesting to come of it. Oh well, we still have the Rigterink case to wait for.

1. One of my professors in law school, Orin Kerr, whom I served as a research assistant for, is a frequent contributor to the site. [↩]