Fault Lines
17 October 2017
snoop dogg threats

Dogged Ignorance About Criminal Threats

March 15, 2017 (Fault Lines) — For the last few years, the media has bombarded us with stories about threats. There are several causes. An unusually contentious presidential race yielded many intemperate public outbursts. The Supreme Court took up, but did not completely resolve, the intent required to make a threat criminal. People continued to act badly on the internet, and online threats were a prominent subject of discussion.

In a perfect world, this barrage of stories would have yielded improved public knowledge about the First Amendment and the line between protected hyperbole and unlawful threats of violence. This is not that world. If anything, our collective understanding has grown dimmer, because promoting inaccurate information about the law of threats can be politically useful.

This week’s profoundly silly eruption over a Snoop Dogg music video is the perfect example. Snoop Dogg has been extremely mildly transgressive for as long as I can remember, like wearing a polo shirt on business casual day. Now Snoop – no fan of President Trump – has participated in a music video of a remix of a song called “Lavender,” which I will not attempt to characterize musically or culturally because it would be excruciating for everyone. The video features Snoop firing a toy gun, yielding a sign saying “bang,” at a Trump-like figure in clown makeup.

And with that, we were off to the races:

Everywhere, nominal guardians of the Constitution rushed not only to condemn Snoop as a matter of prudence or good taste, but as a matter of law. On social media, people who normally spend their time decrying political correctness and over-sensitivity called for Snoop’s arrest and prosecution. Folks gloated at news that the Secret Service is “aware” of the video, suggesting that’s proof that it’s criminal.

This is all nonsense, just like excited outbursts about some of Donald Trump’s fatuities have been nonsense.

First Amendment analysis isn’t mathematics, but it’s not philosophy, either. The rules, and how they have generally been applied, are knowable. The rules for whether a statement can be taken as a criminal threat against the President have been clear for 47 years, since Vernon Watts talked about putting LBJ in the sights of a hypothetical rifle. The rules governing claims of “incitement” are even clearer.

Unless Snoop Dogg’s video was intended to produce, and likely to produce, imminent lawless action, or was intended as and objectively understandable as a sincere expression of intent to do Trump harm, it’s not criminal. Period. This is not a close or ambiguous call. This isn’t rocket science. It’s not even very complicated law. It’s straightforward analysis that reasonably civically literate Americans should know, because political hyperbole has always been part of the American character, and its boundaries are important.

So why do the relatively straightforward rules governing political rhetoric continue to elude so many Americans? It’s probably because the loudest and most prominent people deliberately obscure those rules. The President of the United States – who, after all, swore an oath to uphold the Constitution – just suggested that Snoop Dogg’s video was a crime, when it very clearly was not. Networks favoring the President will grab any loudmouth who agrees and thrust him or her upon the airwaves. Somewhere, even now, some law professor is being groomed to hem and haw about the true threats doctrine. America’s political and media cultures are all about taking sides, not about accurate analysis of important civic issues.

We can’t look to our leaders – political or cultural – to promote accurate understanding of the rule of law. We have to look to ourselves and our colleagues. Do your part – be an advocate for the Constitution, not for any party.

Ken White is a criminal defense attorney and First Amendment litigator at Brown White & Osborn LLP in Los Angeles. He writes about free speech and criminal justice at Popehat.com.

15 Comments on this post.

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  • I Wrote About Snoop Dogg But Don’t Worry It’s Not As Bad As You Think | Popehat
    15 March 2017 at 12:22 pm - Reply

    […] have a piece up over at Fault Lines. By the way, Fault Lines is a definitive criminal justice blog, and you should definitely follow it […]

  • Sunnybutt
    15 March 2017 at 12:32 pm - Reply

    Ken, I respectfully submit an alternative theory. DJT, I don’t think, is suggesting that the video is criminal. He’s highlighting a double-standard in our mainstream media world. Actually imagine, for a moment, the scenario he describes: a white artist making a similar video about Obama. It wouldn’t result in jail time, but the hue and cry from BHO’s media lapdogs would be deafening.

    Ken, you’re continuing to take him literally but not seriously, and because you do so, he can make you dance to whatever time he likes.

    • ertdfg
      15 March 2017 at 6:36 pm - Reply

      The problem is he’s such a buffoon that I literally cannot take him seriously.

      I also seriously cannot take him literally.

      I can however laugh as he dances around and gets everything wrong time after time.
      I’m sorry, but those are my limitations.

    • Sane Nobles
      16 March 2017 at 6:51 pm - Reply
  • DaveL
    15 March 2017 at 1:28 pm - Reply

    So why do the relatively straightforward rules governing political rhetoric continue to elude so many Americans?

    To be fair, we ought to consider this in context. The rules for using turn signals, or indeed for using public bathrooms, seem to elude many Americans, even without public figures sowing confusion about them.

  • SocraticGadfly
    15 March 2017 at 2:40 pm - Reply

    Actually, that’s not the scenario he describes. His Tweet specifically names Snoop Dogg, not a white person, making the same video about Obama. Nice try on “going there.”

  • Tom Z
    15 March 2017 at 2:51 pm - Reply

    “The President of the United States … just suggested that Snoop Dogg’s video was a crime, when it very clearly was not.”

    Actually Pres. Trump did no such thing. He asked the public if the outcry would be different if the victim in the video was Obama and not Trump. And then he suggested that any vague threat to Obama would result in jail time. That’s not saying that Snoop’s conduct is a crime. That’s saying that the Obama regime would gladly investigate and jail people for political reasons.

    If you think that’s outrageous, just ask Nakoula Basseley Nakoula, or the victims of the IRS Tea Party witchhunt if Obama’s admin would ever engage in malicious investigations and jailing.

    • Tim!
      15 March 2017 at 4:08 pm - Reply

      We know what would have happened: pretty much nothing. He might have even gone on to perform at perform and speak at rallies.

      “IRS Tea Party witchhunt”
      Still banging that drum huh? I do not think it means what you think it means.

  • marcos
    15 March 2017 at 4:53 pm - Reply

    Who can forget the time that the Tea Partiers carried assault weapons to an Obama rally?

  • Paul
    15 March 2017 at 5:42 pm - Reply

    I see an AR style rifle, but not an “assault rifle”

    as·sault ri·fle
    noun
    a rapid-fire, magazine-fed automatic rifle designed for infantry use.

  • James Pollock
    15 March 2017 at 6:08 pm - Reply

    Paul, Two quick questions:
    First, what exactly is the visible difference between a rifle that fires off one round per trigger pull, and one that fires off continuously as long as the trigger is pulled until the magazine is empty?

    Unless things have changed since I was in the service, the difference is INSIDE the weapon, not OUTSIDE the weapon.

    Second, assuming your comment is a reply to the one directly above it (as I write) by Marcos, you’re defining “assault rifle”, a term not used by Marcos. Rather, he used the term “assault weapon” a category legally defined as including some semi-automatic weapons. (and, for that matter, using ordinary English, any weapon that can be used to assault someone could be called an “assault weapon”.

  • James Pollock
    15 March 2017 at 6:14 pm - Reply

    I agree that Mr. Trump was trying to claim that, had Mr. Broadus featured the same content but placed Mr. Obama in the “head clown” role, the reaction would have been different.

    However, it’s still nonsense. Hey, remember how much jail time those guys got for making a movie whose major plot revolved around the assassination of GW Bush? Nobody who is even remotely informed believes that Mr. Broadus would have faced jail time, regardless of who the “head clown” might have parodied. Mr. Trump, however, chose to close with “jail time”. Hmmm. Is Mr. Trump uninformed, or does he just believe his followers are?

  • Paul
    15 March 2017 at 8:00 pm - Reply

    James,
    First, the selector switch is different. The rifle he is holding was originally designed for the civilian market as semi automatic. It was later redesigned for the military as the M16,M4 and a ton of variations that had semi automatic function, 3 round burst function and/or full automatic.

    Secondly, the definition I provided fits his intended use of “assault weapon”. If not, I have a ton of assault spoons in my kitchen drawer for you. Not to mention the sticks of assault gum I keep in my vehicle.

  • Paul
    15 March 2017 at 8:13 pm - Reply

    James, another thought popped into my head. What does the appearance have to do with it? There are weapons far more devastating and don’t look like the “evil black rifle”. What if he was carrying a stock Mini-14 or Mini-30, or a an M1 Garand? They all do the same thing as the AR platform.

  • James Pollock
    16 March 2017 at 1:42 am - Reply

    “James, another thought popped into my head. What does the appearance have to do with it?”

    Nothing whatsoever. A semi-automatic weapon can be modified to fully-automatic operation without changing the outside appearance at all. I mean, except you your expert eye, which can see inside the weapon, of course. Or am I to believe that you were unaware how easily (if not exactly in full compliance with legal restrictions) it is to convert an AR-15 rifle to operate fully automatically? Because those are the options I’m presented with… either I believe that you actually don’t know anything about AR-15 rifles, or you can tell just by looking at it that a particular rifle remains fully stock and contains no internal modification.

    “What if he was carrying a stock Mini-14 or Mini-30, or a an M1 Garand? They all do the same thing as the AR platform.”
    My guess is, the Fox News ground would still have their panties all bunched? I mean, they have this fantasy where the “libruls” are all afraid of guns, but they know for a fact that the black folks ain’t.
    But that’s just a guess.

    “Secondly, the definition I provided fits his intended use of ‘assault weapon'”
    Perhaps. Only he can speak to that. But in the U.S. Code, “assault weapon” is defined as including some semi-automatic weapons. Admittedly, not ones that pop out a flag that say “bang!” on them. Was that your point?

    “I have a ton of assault spoons in my kitchen drawer for you.”
    There’s a joke here about “the sharpest spoon in the drawer”, but I’ll let it go this time.

    “There are weapons far more devastating and don’t look like the ‘evil black rifle’”
    You seem to be confusing an argument you’re having with someone else with the discussion you’re having with me. What’s this about an “evil black rifle”, now?