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Why the D.C. Court of Appeals Rejected the Claim that Performing a Rap Constituted Making a Criminal Threat

Can Rapping be a Crime?

by JULIE HILDEN

Earlier this month, the D.C. Court of Appeals—the highest court in the District of Columbia, and thus D.C.’s equivalent of a state supreme court—overturned a D.C. Superior Court decision that had upheld a young man’s conviction for felony threats to damage property.

The Court of Appeals held that the evidence in the case was insufficient to establish that the alleged culprit had committed the crime with which he was charged.  In this column, I’ll comment on the Court of Appeals’ reasoning in reaching that conclusion, and cover three important Supreme Court cases regarding the “true threats” doctrine.

The U.S. Supreme Court’s “True Threats” Cases

Three key Supreme Court cases are relevant to the “true threats” doctrine:

First, in Watts v. United States, decided in 1969, the Supreme Court held that a young man who, at a draft protest, said, “If they ever make me carry a rifle, the first man I want to get in my sights is L.B.J.” had not made a true threat.

Instead, the young man’s remarks were deemed by the Court to be “political hyperbole.”  In reaching that conclusion, the Court was influenced by the conditional (if/then) nature of the statement, the context of the political rally, and the fact that the comment about L.B.J. was part of a longer and clearly political speech made by the young man.

The Court may also have been influenced by the fact that the speaker was only 18 years old, and by the fact that the remark he made evoked laughter—not, say, consternation or acts of violence—from the audience.

Then, in NAACP v. Claiborne Hardware, decided in 1982, an NAACP official in the midst of a boycott told an audience of African-Americans that “any ‘uncle toms’ who broke the boycott would ‘have their necks broken’ by their own people.’”  The Court deemed the comment to be First Amendment-protected, but its reasoning in doing so is notably unclear.

Surely, though, the context there—that of a political action—must have been important to the Court in Claiborne Hardware.  And there, too, as in the Watts case, an if/then statement was involved:  If you break the boycott, then you’ll get your neck broken.

Why should the presence of if/then statements matter? I would suggest that there are two reasons: (1) They offer a chance for a situation to cool down, as the listener thinks over the if/then choice, and possibly responds with another alternative.  (2) They offer a chance for negotiation to occur, and some compromise to ultimately be reached, and they may prevent misunderstandings.

Of course, I’m not arguing here that such if/then statements are ideal, but just that they are superior to pure calls to violent action.

Finally, in Virginia v. Black, a 2003 case regarding two instances of cross-burning, the Court upheld the law at issue insofar as it penalized intentional intimidation via cross-burning, but struck down the law’s presumption that cross-burnings were intentionally intimidating.

The Court, in my view, was right to strike down that presumption—and any presumption that sets in stone (permanently, or even as an initial matter) a conclusion as to what a particular word or symbol must mean.  Language is simply too fluid and context-dependent for that kind of approach.

To see why, consider a hypothetical re-enactment of a historic cross-burning that occurs in connection with a rally condemning the event, urging remembrance, and conveying the message “Never again.”  This hypothetical shows that even to start by presuming that that cross-burning is meant to intimidate, as opposed to convey protest, could occasionally be a serious error.

In sum, the Supreme Court’s “true threats” precedents suggest that courts facing such cases ought to focus on context (especially when the context is that of a political rally) and precise wording; should consider whether if/then statements are truly threats; and should not presume that the meaning that a statement usually carries, is necessarily the meaning it carried in the particular context at issue.

With the basics of “true threats” Supreme Court doctrine now set out, let’s move on to the D.C. Court of Appeals decision with which this column opened.

The Facts Underlying the D.C. Court of Appeals Decision

The facts of the D.C. Court of Appeals case were as follows:  Cherie Gardner was a good friend of the then 15-year-old appellant (referred to in the D.C. court’s opinion only as “S.W.” because he is a juvenile).  But then, one day, a house on Ms. Gardner’s street caught—or was set—on fire.  And the fire was especially terrifying to Ms. Gardner, as her bedridden mother was in the neighboring house, and could have been trapped inside had the fire spread further.

Ms. Gardner’s reaction to the fire was to go yell at a group of young men who were standing outside watching the fire—a group that included S.W.—telling them that whoever had set the fire would be punished.  At some point, Ms. Gardner focused on S.W. in particular, due to an unspecified comment he had made, that she later could not recall.  But there was no evidence—then, or in the court record—to suggest that S.W. or any among that group of young men, had set the fire.

The next night, while Ms. Gardner was sitting outside her house, S.W. and his friends walked by and sang parts of a song by the rapper Lil Wayne.  But they replaced some of the lyrics with others that said, “We’ll set this block on fire.”  They also added other lyrics: “fuck the police . . . we’re not scared of the police, Cherie,” and “We will set your house on fire.”

Ms. Gardner testified that S.W. was about 20 feet from her when he spoke the words.  She testified that S.W. was laughing.  She also said she wasn’t sure if he was joking or not, but that it “didn’t seem like” he was joking.

She also testified that she was “scared” and thought he was “serious,” but said that the reason she thought he was serious was that the neighboring house had burned down the day before—not that she suspected S.W. of having set that fire.

Ultimately, S.W. was charged under D.C.’s criminal threats statute.

The Three Elements of the D.C. Criminal Threats Statute

The D.C. Court of Appeals noted that the D.C. criminal threats statute, the law at issue here, has three elements: (1) the defendant uttered words to another person; (2) the words were of such a nature as to cause the ordinary hearer reasonably to believe that the threatened harm would take place; (3) the defendant intended to utter the words as a threat.

Clearly, S.W. said words to Ms. Gardner, fulfilling the first element.  As to the second element—whether the ordinary hearer would anticipate harm based on the words spoken—the D.C.  Appeals Court noted that context was key.  The Court also pointed out that just as context can render certain words malign, so to can context render words benign—and that, the court concluded, was what happened here.

In support of that conclusion, the court pointed out that S.W. and Ms. Gardner had been friends for years, prior to the incident in which he and his friends taunted her, and that he was “a familiar presence in her home.”  The court also noted that Ms. Gardner did not testify that she believed S.W. caused the fire.

The court also found S.W.’s demeanor and the reactions of S.W.’s friends to S.W.’s rap to be relevant in illuminating the context of the incident:  S.W. made his friends laugh– a factor that, as noted above, also cut in favor of the speaker in the Supreme Court’s Watts decision.

Moreover, the court also noted that S.W. was never menacing or violent during the incident. And at the end of the rap performance, the court noted, S.W. and his friends retreated to sit on a nearby wall.

In assessing the case, the court also took S.W.’s youth into account, cutting him some slack, as precedent allows, for his immaturity.

Why the Court Reached the Right Decision Here

There’s a very fine line between true threats and First Amendment-protected speech, and fortunately, S.W. was deemed to fall on the right side, thanks to a court that was willing to carefully parse the facts and illuminate the interpersonal context of the incident.

What is seems that S.W was really guilty of is gross insensitivity toward a longtime friend who had suffered a serious shock, though not one that S.W. or his friends had inflicted.  It also seems that this was a case that demanded a sincere apology to Ms. Gardner from S.W. and his friends, not a criminal charge against them.  It’s fortunate that the D.C. Court of Appeals saw it that way.

JULIE HILDEN practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. She is the author of a memoir, The Bad Daughter and a novel Three. She can be reached through her website.

This column originally appeared in Justia‘s Verdict.