Soon after Harvard’s Henry Louis Gates was arrested after mouthing off to the police, charges of disorderly conduct against the feisty African-American professor were dropped like a hot potato in a firestorm of racial controversy. But consider the fate another African-American signifier who mouthed off to the police—this one, a hot-headed 20-year-old who, two weeks ago, was handed a two-year prison sentence for some rap lyrics he wrote when he was a teenager.
For all the protection afforded by the First Amendment, the Constitution doesn’t protect dangerous and offensive speech absolutely.
Antavio Johnson wrote “Kill Me a Cop,” a rap song threatening to murder two police officers he said had harassed him. The song announced: “Im'ma kill me a cop one day.” It called out two specific officers—one male, one female—by name, both of the Lakeland, Florida, Police Department, both of whom would be shot with a “Glock” in the “dome” if they ever “get my timing wrong.”
A couple of years later, Lakeland detectives researching gang life on the Internet found Johnson’s song on a MySpace page belonging to an entity called Hood Certified Entertainment. Already in jail for violating probation on a cocaine conviction, the now-20-year-old Johnson was convicted on two counts of a weirdly titled crime he had probably never heard of: “corruption by threat of public servant.”
Section 838.021of the Florida statutes makes it a third-degree felony to harm or threaten to harm public servants, their families, or the people they care about. The statute, which is designed to deter corruption and punish extortion, requires that threats be made "with the intent or purpose" to influence public servants' performance of their official responsibilities. In a 2007 case, a disorderly man was prosecuted under the statute for repeatedly asking to see the badges of undercover officers, but acquitted. In a 2008 case, another disorderly Florida man was prosecuted and acquitted under the statute, this one a DUI arrestee in handcuffs who threatened to slit the arresting officer's throat and beat his "ass" if the officer were to free him. The court concluded that the man's threats lacked the requisite intent to influence the officer. Merely threatening the life of an officer, even to his face, is not enough for conviction.
So did Johnson deserve a two-year sentence for some ill-conceived lyrics he wrote as a teenager? No. It’s outrageous. He is young and caught up in a culture that glorifies both violence and freedom of expression. The art of signifying by rhyme, the rapper’s medium of expression, incorporates the profane and transgressive vocabularies of violence, rebellion, racism, sexism, homophobia, and irreligiosity.
But the people arguing that all words set to song are protected by freedom of speech are wrong. The Florida chapter of the ACLU came out in Johnson’s defense: “We don’t punish for bad thoughts in America.” An op-ed in the Palm Beach Post warned: “Thought police, anyone?…Criminalizing Johnson's early, crude attempts at expression seems borderline unconstitutional and counterproductive.”
But these weren’t just “thoughts,” they were statements, and American law takes verbal injury seriously. For all the protection afforded by the First Amendment, the Constitution doesn’t protect dangerous and offensive speech absolutely. There is no unqualified freedom of speech to lie about a person—that constitutes “defamation.” There is no unqualified freedom of speech to publish private facts about people who aren’t newsworthy—that would be “invasion of privacy.” And there is no unqualified freedom of speech to make threats to do a person bodily harm—that amounts to what the common law calls “assault.”
If you can’t verbally assault, why should you be able to get away with threatening to kill? The answer is that you shouldn’t. The question is, what should the legal consequences be? Is civil liability enough? Should there be criminal liability as well? And if there is criminal liability, what should be the punishment? Should the punishment be more severe if the verbal threats target police officers? Should the punishment be less severe if the threats are made in a song published on the Internet rather than face-to-face?
If death threats are to be crimes as well as the civil wrongs we lawyers call torts, the punishments should be tailored to fit culpability. Perpetrators of verbal threats who have never lifted a finger against anyone do not deserve to be thrown into jail for two years. A $400 fine and a tongue lashing would be fairer—that’s the punishment a judge imposed on a wealthy white businessman in my neighborhood who took a dislike to my 12-year-old son, and threatened, to his face as he walked home from the school bus one day, to “fuck” him up if he ever went near his children.
As truly awful as it is, disrespecting police officers is not a wrong that it takes two years in jail to right. Nor is it clear that police officers deserve more protection from verbal assault than ordinary citizens. If the conditional threat Johnson made against the police had been made against the life of a 16-year-old girlfriend or a rival teen peer, he would not have been charged with a crime or sentenced to two years in jail. The old girlfriend or rival wouldn’t even have had strong civil assault cases. The kind of verbal threats the civil law considers wrongful are those that unconditionally threaten immediate bodily harm. “Someday, I’ll get you if you cross my path” isn’t an actionable threat at all.
We should be able to bring personal injury lawsuits against others who have intentionally defamed, invaded privacy, or verbally threatened us. We have to be able to deter and punish threats of young adults who show signs of being Columbine-style school shooters or terrorists. But it’s excessive to treat violent song lyrics in the context of youthful rapping as criminal offenses punishable by jail time.
Antavio Johnson warned the law not to get his “timing wrong.” It looks like they did anyway.
Anita L. Allen is the Henry R. Silverman professor of law and professor of philosophy at the University of Pennsylvania. She writes about everyday ethics, health, and the right to privacy for scholarly journals and the popular press.