Jerod Gunsberg, Los Angeles Criminal Defense Lawyer
Last week, the California Court of Appeal ruled that rap lyrics may not be protected speech under the First Amendment if a trial court determines that the lyrics contain threats to a victim under California Penal Code Section 140(a). The case stems from a rapper who posted two tracks which mentioned two rape victims by name and in the opinion of the court, contained threats.
The court went through great pains to make clear that these cases must be taken on a case by case basis, but that the lyrics in this case constituted a direct threat to the victims. I’m not going to post the lyrics here, but there’s a link at the bottom of this post where you can read them if you want.
On one hand, this ruling is not all that surprising. For over 20 years, California courts have permitted the use of rap lyrics as evidence that a defendant committed a crime in the furtherance or in association with street gang activities (People v. Olguin (1994) 31 Cal.App,.4th 1355). Although Olguin is not mentioned in the Murillo opinion, the justices are obviously aware of the precedent. It’s worth nothing though that in the gang case context, rap lyrics along aren’t enough for a conviction. We just saw that with the dismissal of the Tiny Doo case in San Diego.
In June of this year (2015), the United States Supreme Court reversed a federal criminal threats conviction against Anthony Elonis. Elonis posted violent rap lyrics on Facebook regarding his ex-wife, an FBI agent, and a local kindergarten class. The Supreme Court overturned the conviction, but they avoided the First Amendment issue and overturned it on other grounds. See Elonis v. United States (2015) 135 S.Ct. 2001
So now we have the Murillo case. It’s not a gang case like Olguin or the Tiny Doo situation, it’s more along the lines of Elonis. But Elonis didn’t provide any guidance and the statute at issue isn’t a federal criminal threat statute, but a very specific California statute dealing with threats against crime victims. And of course, the California Court of Appeal came down on the side of protecting crime victims. Again, no surprise.
If this ruling withstands review by the California Supreme Court (and possibly the Ninth Circuit or US Supreme Court…but that’s a longshot), then it could greatly expand the scope of California Penal Code 140, which makes it a crime to threaten victims in a criminal case (in addition to a standard criminal threats charge under Penal Code 422). The Murillo court upheld previous case law which held that Penal Code 140(a) “does not require that a threat to harm a crime witness or victim be immediate or that the defendant has the apparent ability to carry out the threat.”
If this ruling stands, prosecutors could have wide latitude to comb through social media sites not just for hip hop tracks, but for videos, gifs, or exchanges in any public or semi-public form. In the Murillo case one of the victims testified that she heard the track and felt afraid, but under the is ruling, the DA could prosecute even if the victim does not see the posting or hear the track. It could give prosecutors wide leeway to prosecute online comments made by people who may not even have any geographic proximity to the victim of a crime, who may not know a victim of a crime, and could just be going off an internet rant.
At this point, my feeling is that the California Supreme Court will deny review on this and the appellate court ruling will stand. Stay tuned to see how this develops.
Here’s the court opinion (with they lyrics at issue): People v. Murillo, California Court of Appeal (2nd District, Div 6. B257429). Full Cite not available yet.