PIC-parental-advisory-explicit-contentRap on, rappers, the First Amendment may say to creative artists in an often violent, suggestive genre. But federal and state courts are balancing interests and finding that fine line, sometimes a blurry one, between art and criminal threat.

The issue recently arose for a California appellate court, which ruled that such matters should be decided by a trier of fact, not a judge. The people had their case against “Lil A,” also known as Anthony Murillo, dismissed by a trial court. A state Superior Court judge found that Murillo had engaged in protected speech in a rap, in which he made violent statements against two onetime sexual assault victims, whom he identified by first and last name.

The state appellate judges considered the nature of Murillo’s lyrics and that he both named and threatened to kill the two individuals the court identified as Jane Does; both women were involved in a sexual assault case in Southern California that resulted in criminal convictions against a friend of Murillo’s. The judges said a reasonable person could find Murillo’s lyrics to be actual threats and not protected speech, and this issue should be left to the trier of fact not a judge to determine.

In ruling on prosecutors’ motion to reinstate the case, the California appellate judges asked them and defense counsel to brief on potential impacts on this matter of the U.S. Supreme Court’s ruling a few months ago in the Elonis case, which involved an estranged husband’s posting on Facebook of rapper Eminem’s violent lyrics and his wife’s contention that these threatened her.

The appellate judges in the Murillo case took note of Elonis but said their decision was governed more by the California Supreme Court interpretation of §140(a) on “willful” threats against crime victims, and especially “true threats” as discussed in People v. Lowery.