Last week, a California Appellate Court ruled that criminal charges of threatening violence against a crime victim could be brought against an amateur rapper who posted a video on Facebook rapping about killing the rape victims of his incarcerated crewmember. While the appellate ruling was procedural in nature, the decision allows state prosecutors to try the Defendant for violating the specific provision of the California Penal Code that aims to protect crime victims.
On September 13, 2013, Defendant posted a video on a Facebook page created for his rap persona, “Lil A,” that showed him rapping his song “Moment for Life Remix.” He dedicated the song to his “homie Shane,” a friend of his whom was serving a one-year jail sentence for two counts of unlawful sex with a minor. Those counts were plead down to after a time spent bullying and sexually harassing two girls at his school, both of whom ended up leaving the school citing depression and social anxiety caused by the torment. The lyrics to Defendant’s song can be read in full in the opinion, but they accused the girls of “snitching” and threatened that Defendant would hunt the girls down, kill them, and hang their heads from the wall like a deer.
After one of the girls saw the video on Defendant’s Facebook, she informed the authorities and police officers arrested him. Following a preliminary exam, the magistrate judge found that there was no “willful threat” to use force against the victims and dismissed the complaint. On appeal, the State argued that the relevant Penal Code provision does not require specific intent, but just a general intent to intimidate a crime victim. The appellate court noted the very low threshold for charges to move past a preliminary examination, and reversed, holding that there were enough undisputed facts that a reasonable listener could find that Defendant’s words constituted a true threat.
California law regarding Penal Code § 140 defines true threat much like federal, constitutional law does. The California Supreme Court case People v. Lowery defined a true threat under § 140 as “threatening statements that a reasonable listener would understand, in light of the context and surrounding circumstances, to constitute a true threat, namely, a serious expression of an intent to commit an act of unlawful violence, rather than an expression of jest or frustration.” 52 Cal. 4th 419, 427 (Cal. 2011). The key determination is context: a jury will have to look at all of the factors in play—the Defendant’s relationship to the victims, the fact that the speech took place on social media, Defendant’s rap persona, etc.—and decide whether or not Defendant was truly threatening the girls.
If a jury does find the video constituted a true threat under California law, this case could have the potential to make its way to the Ninth Circuit on appeal, and possibly even the Supreme Court of the United States, due to its First Amendment implications. The Supreme Court has heard similar cases in the past, including in Elonis v. United States, which focused on Facebook threats made by an ex-husband to his estranged wife and featured Chief Justice John Roberts quoting the rapper Eminem in oral arguments. What was a fun Internet story at the time could have some serious meaning in Defendant’s case, as the Chief Justice of the Supreme Court of United States implied that both rap music and social media create contexts that soften threatening and malicious speech. Justice Samuel Alito disagreed, but the Court found in favor of the Defendant.
While the Elonis decision was not a substantive decision with regard to true threats, it does hint at what the Court may do in the future. In Defendant’s case, it is possible that the combination of a rap persona and the fact the speech was posted on social media will remove his vulgar language from the true threat category. But that is for a jury, and possibly an appellate court, to decide.
For now, Defendant’s case will move forward, and the role First Amendment law will play in the Internet Age will hopefully get a bit more clear.
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 The lower court had thrown out the complaint holding that the First Amendment protected Defendant’s speech. The Second Appellate District in California reversed, holding that a trier-of-fact must (i.e., a jury) must decide whether or not Defendant’s words constituted a “true threat,” which would remove the words from protected speech.
 Cal. Penal Code § 140.
 The case focused on jury instructions, and its actual holding was that a federal law criminalizing threats made over the Internet required the finding of a “true threat,” not the more lenient negligence standard imputed by the Third Circuit.