The real Slim Shady stood up in the nation’s highest court yesterday, at least through his lyrics.
“What about the language at pages 54 to 55 of the Petitioner’s brief?” U.S. Supreme Court Chief Justice John Roberts said, as quoted by Billboard; he was referring to Eminem‘s “’97 Bonnie and Clyde,” from 1999′s The Slim Shady LP. “You know, ‘Dada make a nice bed for mommy at the bottom of the lake,’ ‘tie a rope around a rock,’” the judge continued. “This is during the context of a domestic dispute between a husband and wife. ‘There goes mama splashing in the water, no more fighting with dad,’ you know, all that stuff.”
The high court was hearing the appeal of Anthony Elonis, a Pennsylvania man sentenced to 44 months in jail for posting violent rap lyrics about his estranged wife. Michael Dreeben, a lawyer for the government, replied that the difference was, in fact, the context: Eminem was trying to entertain, in a style consistent with his previous lyrics, while Elonis was saying it on Facebook, where he knew his wife would read it, after she received a court’s protection from abuse order against him. John Elwood, a lawyer for Elonis, called on the high court to require a jury to examine the “specific intent” of the posts, contending that the current standard could lead to five years of felony liability whenever there’s a misunderstanding.
Eminem’s rhetorical appearance before the Supreme Court goes to show how often rap lyrics tend to be come up in the legal process. Killer Mike, writing with University of Richmond professor Erik Nielson in USA Today, argued yesterday that the use of rap lyrics as evidence where other music, literature or film would not be represents a “concerning double standard” at least partly rooted in racial stereotypes. Earlier this year, the New Jersey Supreme Court took a step toward agreement, ruling that rap lyrics couldn’t be used as evidence unless they were closely linked to the crime and wouldn’t unduly bias the jurors.
The cases are among dozens in recent years where police and prosecutors cited rap lyrics to back up criminal charges. Last month, as the Los Angeles Times reports, prosecutors in California charged Brandon Duncan, who raps under the name Tiny Doo, over album cover art that shows a gun and bullets. His attorney said he could face as long as life in prison if convicted.
The issue is unlikely to go away. After Elwood, the lawyer for Elonis, told the Supreme Court that entertainment was a part of his client’s posts, Justice Samuel Alito struck a cautious stance. “This sounds like a road map for threatening a spouse and getting away with it,” Alito said, as quoted by The New York Times. “You put it in rhyme and you put some stuff about the Internet on it and you say, ‘I’m an aspiring rap artist.’ And so then you are free from prosecution.”
The Supreme Court has held that the First Amendment doesn’t protect “true threats.” As Justice Anthony Kennedy noted, that’s a tricky standard. “I’m not sure that the court did either the law or the English language much of a good service when it said ‘true threat,’ ” he said. “It could mean so many things.”
When Dreeben, the lawyer for the government, said that Eminem couldn’t be prosecuted for his “’97 Bonnie and Clyde” lyrics for context-related reasons, the chief justice interjected: “Because Eminem said it instead of somebody else?”