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.