Is Hate Speech by Rappers a Protected Right?

In one song, a rapper details how he envisions killing his wife, shooting up a kindergarten class, bombing a local law enforcement agency and killing a FBI agent who visited his house.

Is that free speech? Or is that assault?

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A small contingent of rappers who are poised to petition the United States Supreme Court contend “threats to safety” should be protected under the First Amendment as long as they are couched in lyrical terms. Atlanta rappers Killer Mike, Big Boi and T.I. spearheaded the petition that will be reviewed by the nation’s highest court. If the case rules in their favor, the implications are enormous and potentially devastating.

At a time when law enforcement is already having trouble deciphering which social media posts constitute terrorist threats, versus peer intimidation or simply a strong opinion, the outcome of this case could make it even more difficult.

Threatening speech can be even more dangerous when it’s disguised as artful expression because it is more likely to fly under the radar.

Comedy duo Key and Peele touched on this concept in a hilarious skit called “Rap Album Confessions.” A detective confronts a fictional rapper with a murder accusation, as evidenced by incriminating lyrics he recorded. The rapper sticks to his professed alibi, denying the lyrical confession: “It’s just words, detective: nouns, adjectives. They just happen to be in a dope order, but we ain’t got no proof.” When faced with the gun in question and a picture of himself in front of the murdered body, the rapper says: “It’s a concept album.”

Concept is key, as is context. The First Amendment is and always has been conditional. It’s long been established that yelling “fire” in a crowded theater is illegal. When free speech represents a threat to an individual or group, one man’s right to safety (life) must be weighed against another man’s right to free speech (liberty, pursuit of happiness).

The rise of the Internet and social media only serves to exacerbate the problem, and even the concept of “speech” is blurred. Recently, a man was arrested for simply posting a photo of himself holding a gun as a symbolic threat to another Facebook user who spoiled the story line to “Star Wars: The Force Awakens.”

Constitutional scholars agree that unprotected speech includes threats to children (e.g. child pornography) and threats to safety, also known as “fighting words” (speech that draws people into a fight). Yelling a racial epithet during a heated argument is considered “hate speech” and is not protected by the First Amendment. A rap lyric that spells out a specific threat to the safety of a person or group should be similarly categorized as hate speech.

But it will be up to the Supreme Court to decide judiciously against the protection of such speech. If they do not, the door is wide open for terrorist threats of all types.

Terrorism — whether in an urban environment or cross-cultural — thrives on the concept of fear, and fear-based rhetoric is protected free speech. One the one hand, it’s not illegal to label America “The Great Satan” and it’s not illegal to incite the downfall of the government. On the other, specific threats against an individual — whether it’s the president of the United states or a Facebook friend, for instance — trumps an individual’s right to free speech and merits a visit from the feds.

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Historians claim that rap music helps reduce violence in gang neighborhoods by allowing for freedom to vent frustration, but it is misguided to attempt to protect violent, hateful speech in the process of achieving this goal.

This isn’t the first time a musician has published threatening lyrics. Johnny Cash famously sang about shooting a man “just to watch him die,” rap group NWA was known for making threats against the police, and white rapper Eminem has written numerous physical threats toward his on-again, off-again girlfriend.

What sets this petition apart is the possibility that all rappers may finally have a special right to make specific, violent threats.

If the Supreme Court exempts one group, they should be prepared to exempt more. The slippery slope of aggressive language that constitutes an actual threat may be slicker than we thought.