Op-Ed: Two-Year Sentence For Rapper 'Excessive'
LYNN NEARY, host:
Now, the TALK OF THE NATION opinion page. As an angry teenager, Antavio Johnson wrote a song fantasizing about getting even with the police after he felt he'd been harassed by them.
(Soundbite of song, "Kill Me A Cop")
ANTAVIO JOHNSON (Rapper): I'm-a kill me a cop one day, hey. 'Cause I'm tired of 'em playin' with my life, my life. Lord, I know it ain't right. It ain't right, no. I'm-a kill me a cop one day, hey.
NEARY: Songs threatening to kill cops are not new. Back in 1990, Ice-T's metal group, Body Count, released the song "Cop Killer" to much controversy. But Antavio Johnson's song specifically threatened two officers by name, one male and one female. Years after he actually wrote the song, the now 20-year-old ran into a little known Florida statute, which put him in jail for two years.
Anita Allen writes about ethics, health and privacy rights for The Daily Beast. She explained what happened in her most recent article and questioned whether violent song lyrics should be punishable by jail time. She joins us from the studios of AudioPost in Philadelphia. Good to have you with us.
Professor ANITA ALLEN (Writer, The Daily Beast): Thanks, Lynn.
NEARY: So, can you explain how he got the jail time? What was the statute that he was convicted on?
Prof. ALLEN: Okay. This is a statute in Florida which makes it a punishable crime to try to corrupt a public servant by threat. And so, Johnson allegedly threatened the two police officers who were named in his song. And he was sent to jail for two years. Now, this was a plea deal. He was already facing some cocaine charges and probation violations, and so it may well be that he got a better deal by going to jail for two years for his song rather than five years for breaking probation.
NEARY: Oh, so he did face other charges in addition.
Prof. ALLEN: He faced other unrelated, completely unrelated charges.
NEARY: But in terms of what he was finally convicted on, why doesn't the First Amendment apply here if this was a verbal threat?
Prof. ALLEN: Good. So, it seems to me there are two questions: One, was he really guilty of the crime that he pled no contest to two counts of? And, secondly, if he was guilty, did the punishment fit the crime?
And I think that - putting aside for a second the First Amendment issues - there's a real question of whether the guy was guilty at all. This is a statute which is supposed to prevent us from extorting or corrupting public servants by forcing them to do something against their will. And in this case, he didn't force the police officers to do anything against their will. He threatened to kill them, that's for sure, and that's a horrible thing to have done. But he didn't, by making that threat, actually attempt to get them to do something they wouldn't or shouldn't do. And that's why, in my belief, he didn't even break the law.
And then, secondly, if he were guilty of the crime, which again, I'm thinking he's not, two years in jail seems completely unfair, especially in light of the fact that this was a song. And now the First Amendment comes into play.
(Soundbite of laughter)
NEARY: We want to hear what you think about this. Should Antavio Johnson have gotten jail time for threatening specific police officers in his rap lyrics - naming them specifically? Why or why not? 800-989-8255. Our e-mail address is firstname.lastname@example.org. Or join the conversation at our Web site, go to npr.org and click on TALK OF THE NATION.
Now, I want to be clear about this, Anita. If he had made a threat against a private citizen, that would not have lead to any prison time, correct?
Prof. ALLEN: That is correct. This statute only applies to public servants. And as you know, the First Amendment, it's an absolute so you can't lie about people, you can't publish their private facts and you can't assault them, threaten them with imminent bodily harm. But in this instance, Johnson did not threaten the police with imminent bodily harm, or if he did, he did so so long ago that there's no reason to think that today, he still threatening them. So there's real a question, again, about whether he actually committed the crime and if so, would the punishment that's in light of the fact that he wrote this in a context of an artistic expression.
NEARY: He wrote this in the context of an artistic expression, but he did name these two police officers. They could easily have felt that they were threatened by this young man. What would be an adequate measured response to that?
Prof. ALLEN: Well, you know, you could understand that if days after the police in question had allegedly been unfair toward him - treated him badly, harassed him - he had made these threats and published them, the police officers would've had justification for feeling threatened, even though he was just a teenager. But three or four years later, do you still feel threatened because someone, several years before, made a threat against you which they never carried out? And the law of assault is very clear, that assault is only a crime or a tort when the - there's a show of a force for imminent harm, imminent harm. Three years later is no longer imminent. So I'm just puzzled by why the police were even successful at getting those charges to stick.
NEARY: Is there a difference between verbal assault and threat? Did we talk about that? I mean, is there a distinction there?
Prof. ALLEN: Well, not really. Because when you - what verbal assault means, essentially, is to threaten someone with imminent bodily harm. That's what assault means in personal injury law. That's what assault means in the criminal law. It means to use words or deeds to threaten someone with imminent bodily harm. So if you take a baseball bat and say to somebody, say, to a meter maid, if you give me a ticket, I'm going to bash you in the face. That would be a corruption by threat of public servant. That would be a verbal assault - that's an assault for both criminal and civil purposes.
So that kind of thing, where you're in someone's face and you say, I'm going to do this to you right now, that's the kind of assault that I think the law is intended to address, not some sort of, you know, song lyric published now but written several years ago by someone who's never taken any concrete acts towards committing violence against a public servant or the police.
NEARY: Do you think there should have been any legal consequences for that threat that was contained in that song at all?
Prof. ALLEN: Well, clearly, the police and the prosecutors have some discretion here, and they could've decided to let this thing go. It's a song lyric. It's rap music. It happened a long time ago, not a big deal. We're not going to be hurt. But I think that because the particular officers' names were used, that was a - probably a stupid thing for this young man to have done, and, you know, a good agent would have told him don't publish a song with police officers' names in it, threatening them.
But given that the names were mentioned, it seems that police might well have had a conversation with this young man, saying to him, you know, look, you're in enough trouble as it is. You don't want to publish -continue to let appear on MySpace these lyrics that named two officers. Take that down. Stop doing that. Tell your friends and tell your colleagues to not post music that includes these violent lyrics against a certain person.
That kind of warning or conversation would have been, I think, appropriate. But actually, the whole idea of a criminal prosecution here doesn't make sense to me because I don't think he broke the statute. The statute requires you to try to get someone who's a public servant to change their behavior through a threat, and he didn't do that.
NEARY: Anita Allen is a professor of law and philosophy at the University of Pennsylvania. She writes on ethics, health and privacy rights for The Daily Beast. We are talking about a young man who was sent to prison for rap lyrics. We want to hear from you. The number is 800-989-8255.
And we're going to take a call from Patrick, who's calling from Cleveland.
PATRICK (Caller): Hello.
NEARY: Hi, go ahead.
PATRICK: I was just wondering, you know, could these song lyrics, you know, could they call somebody else to do the deed for him? You know, what if somebody else went out and killed these cops because this guy's song is telling him to?
Ms. ALLEN: That's a very interesting point. What if - although, Mr. Johnson's anger had long subsided. He'd moved on. For him, this was just a poem, just a song, but somebody else in Lakeland, Florida, heard the song or saw the lyrics and said, well, I'm going to - on behalf of Antavio Johnson - go out and get these two cops? That would be a horrible thing to happen. Which I think is the reason to perhaps have the police have a conversation with Mr. Johnson about the lyrics being up there, wherefore, the police department to do what they did, which was they actually asked YouTube to take down the video. And I believe they also may have asked the - others who had put these song lyrics up to take them down off the Internet.
That's the way you deal with the problem that the caller's very appropriately mentioning of, you know, sort of other people getting the wrong idea and doing something horrible. You deal with it by getting the offensive language out of the public sphere, not by throwing the guy who wrote it in jail.
NEARY: Yeah. But in this particular case, given that those names are out there - and they are still out there - it could be argued that that threat still exists and that somebody could pick up on it.
Ms. ALLEN: Right. And that's a problem we need to deal with. I mean, I'm not sure that means we then go back and say, well, the person who wrote those lyrics, who expressed those sentiments in a song is therefore guilty of a crime, either a past crime or a future crime. I just don't think it's fair to hold him responsible to that extent for other people's independent acts.
Plus, if you read the song or listen to the song itself, it's very vague as to why Mr. Johnson wants to get these cops. And I don't think anybody - in their right mind, anyway - would think that there was some particular act of, say, police brutality or unfairness that was going to justify going out and getting those particular people. It's not clear what they did if, you know, if anything, to Mr. Johnson.
NEARY: All right. We're going to take a call from Stan, who is calling from Newton, Massachusetts.
STAN (Caller): Hi. Yeah, look, the fact that this is - this person is advocating murder in the form of a song, it doesn't strike me as making it protected under the First Amendment. I mean, you know, al-Qaida advocates murder in the form of songs, too, and I don't think that that would be protected under the First Amendment and I don't think that this is political speech that should be protected under the First Amendment.
This is an individual who's advocating the murder of individuals. And the fact that it occurred in the past doesn't - does not necessarily, in my view, mean that he couldn't have the capability to carry it out, especially in light of his other criminal conduct. So I really think that this is off base to characterize this as a First Amendment issue. I don't think so.
Ms. ALLEN: Well, you know, the song is not, to me, fairly characterized as advocating murder. The song is, I'm going to kill a cop someday. I want to. It's a very personal expression of this young man's feelings at the time. And so it doesn't really advocate that anybody else do anything, first of all.
STAN: I'm sorry, I didn't say that.
Prof. ALLEN: Yeah.
STAN: I'm assuming that he's only talking about himself. The previous caller inquired as to whether someone might be encouraged, like, you know, being swayed by a Rush Limbaugh speech, you know, to carry out some, you know, illegal conduct. But that's not what I'm saying.
I'm assuming that, you know, he means exactly what he says. And he - when he talks and sings in the first person about what he's going to do, you know, that's his intention to carry it out. And I don't see how this could possibly be protected under the First Amendment as political speech. This is a…
Prof. ALLEN: Well, it wouldn't be protected as political speech.
NEARY: All right. Stan, I'm going to let Anita respond to you. Thanks so much for calling in.
Prof. ALLEN: Thank you. It wouldn't be protected as political speech. The point is that it's a song written several years ago, which contains the statement that if certain people get in the way of the songwriter, he's going to get them. He's going to shoot them. So the fact that the language is very hypothetical and not promising imminent harm to these people takes it out of the usual domain of assault law and takes it, therefore, into the domain of protected speech, unfortunately.
The song does not contain an imminent threat to these officers, nor I think can it, three or four years later, now be interpreted as a continuing expression of threatening feelings or threatening intentions toward the officers in question. I definitely think that this young man should not have allowed this song to have been published because it's offensive and it's disrespectful to the police. But it doesn't warrant the response it got, which was a criminal prosecution for corruption by a threat of public servant…
NEARY: I just want to remind…
Prof. ALLEN: …and two-year jail time, too.
NEARY: …our listeners - I want to remind our audience that you are listening to TALK OF THE NATION from NPR News.
Anita, also, what about all the other songs that are out there, some of which are very offensive, some of which may be construed as threatening that people are listening to all the time, not acting on? And what about those who have created those songs, and they're not being held responsible?
Prof. ALLEN: This is such a good question, because I'm not a fan, as it turns out, of rap music. But a lot of that medium's technique involves the use of transgressive and profane vocabularies of violence and racism and sexism and rebellion and homophobia and irreligiousity(ph) things I don't approve of, and that's part of the way the music industry has allowed and encouraged these artists to express themselves.
So now, do we single out this young man because he made a stupid mistake several years ago of naming names of people he'd like to get? You know, when you're 16 years old, you hate your parents. You hate your teachers. You may even hate yourself. Well, if he made a suicide threat three years ago, we wouldn't say let's call a hotline today for something he did, you know, three years ago. We have to realize that when time passes, so do feelings of animosity and threats that - or hypothetical or contingent threats become less threatening and less serious and less even characterizable as threats.
So given the context of the music industry, given the context of what we know about teenagers, it seems inappropriate to address this problem of stuff being posted on the Internet as offensive and threatening in the way that would address by the Lakeland police and by the prosecutor…
NEARY: All right, let's get another call in here from Charles…
Prof. ALLEN: Great. Thanks.
NEARY: …from Chicago. Hi, Charles.
CHARLES (Caller): Hi. How are you?
NEARY: I'm good. Go ahead, Charles.
CHARLES: Yeah. My comment is, I don't think the young man should have been put in jail. I think he should have gotten probation. I'm wondering, did anything happen prior to the song and he got these officers' names from somebody? Were they have name on the street as being aggressive, rough cops? What happened that he picked their names? And I'll take my comment out off the air.
NEARY: Okay. Thanks very much. I appreciate it.
Prof. ALLEN: The story is that Johnson had himself some personal interaction with these two officers that he regarded as being harassment. And so he wrote the song using their names, because in his own personal experience, these two officers were offensive. The song, by the way, does contain general condemnations of the police and a general sense of ill-will toward the police and the lack of respect for the police in general. So I should make that clear.
NEARY: All right. Let's see if we can get another call in here now…
Prof. ALLEN: Yeah.
NEARY: …Michael from San Antonio.
MICHAEL (Caller): Hi. The reason why I'm calling is because I'm - in my line of work, I run into this kind of general attitude a lot. And what scares me so much about this is that it's just putting it out there to everyone, hey, you know what? We're the bad guys. The police officers are the bad guys, and if they get in our way, let's do whatever we can to stop them - i.e. kill them. And that just frightens me so bad.
Prof. ALLEN: It is frightening. It is frightening, and we all rely so much on the police to protect us, that we hate to be in the situation that we're in right now, which is - where there's a whole, you know, music industry that's encouraging of this kind of expression. But again, we can't solve that problem by putting particular individuals in jail for their songs. I think we have to address the problem in a different way, through education and through some kind of, I think, police and music industry dialogue - again, not by putting people in jail.
NEARY: Okay. Thanks so much for your call, Michael. And thanks to you, Anita.
Anita Allen writes on ethics, health and privacy rights for The Daily Beast. Thanks so much for being with us today.
Prof. ALLEN: Thank you.
NEARY: Tomorrow, after the Second Vatican Council, American nuns began to modernize their lives. Now the Vatican is taking a closer look at what nuns say and do. We'll talk about that tomorrow.
This is TALK OF THE NATION from NPR News. I'm Lynn Neary in Washington.
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