Takin' the Rap - Should Artists Be Held Accountable for Their Violent Speech
![handle is hein.journals/comlaw10 and id is 7 raw text is: Takin' the Rap
Should Artists Be Held Accountable
for their Violent Recorded Speech?
BY PETER D. CSATHY*
Introduction
In an unforgettable scene from the
film Do the Right Thing, Spike
Lee's character, angered by the
killing of an African-American
youth by New York police outside
Sal's Italian pizzeria, stands be-
fore an angry crowd and screams
for justice. Heeding his mes-
sage, the crowd burns down the
pizzeria. That form of incendiary
speech is punishable by law,
consistent with the First Amend-
ment, due to the imminent po-
tential for violence. See
Brandenburg v. Ohio, 395 U.S. 444,
447 (1969).
But what if similarly-focused
violent words are not shouted
live to an angry mob, but rather
to unseen millions in recorded
music-as in multiplatinum rap-
per Ice Cube's recent song, Black
Korea, in which he calls for the
torching of Korean grocery stores
in retaliation for the killing of La-
tisha Harlins by a Korean store
owner after a struggle over a $1.79
bottle of orange juice? Should that
speech likewise be punishable?
Or, should the difference in con-
text and absence of immediacy of
a live threat of mob violence al-
ter the legal result and immunize
the recorded message of violence,
even if that message is acted upon
and Korean grocery stores are
burned to the ground?
In the past few months, an un-
mistakable trend has hit the en-
tertainment industry, particularly
in the field of rap music-that
trend being violent speech. For
example, Ice Cube's recent num-
*Peter Csathy is with the law firm of
Paul, Hastings, Janofsky & Walker
in Los Angeles. Together with part-
ner Geoffrey L. Thomas, Mr. Csathy
recently successfully represented the
rap group N.W.A. in a multicount
speech-based lawsuit.
ber two album, Death Certifi-
cate, also contains lyrics which
command his former N.W.A.
rapmates to kill their Jewish man-
ager-Get rid of that devil, real
simple/Put a bullet in his temple/
cause you can't be a nigger for life
crew/with a white Jew tellin' you
what to do. And, rap supergroup
Public Enemy's video for their
song By the Time I Get to Ari-
zona, which was released for
maximum impact in conjunction
with the Martin Luther King hol-
iday, depicts the assassination of
former Arizona governor, Evan
Mecham, who voted down state
observance of the King holiday.
The public debate and outcry over
this recent phenomenon of vio-
lent speech has ranged from overt
condemnation to hearty congrat-
ulation.
Are these recent recorded mes-
sages of violence really danger-
ous to the people targeted, and
do they really cause others to
carry out the violent acts encour-
aged by the artist? And, if so,
should the artists themselves be
held legally responsible for such
violence? Or, are those recorded
messages, no matter how specific
or violent, nothing more than ex-
aggerated forms of artistic expres-
sion which should receive full
First Amendment immunity be-
cause they are not meant to be
taken literally? This issue recently
has confronted, and will continue
to confront, our courts nation-
wide as more and more lawsuits
are filed by frightened plaintiffs
who feel victimized by this recent
media trend.
Suicide Cases
There can be no doubt that artis-
tic expression of all kinds, espe-
cially in the form of music, is a
powerful influence in our lives.
That influence is magnified in the
minds of certain recipients of that
artistic expression, particularly in
youths who often view music per-
sonalities as their heroes. We have
all heard the tragic stories of emo-
tionally-troubled teens, who, suf-
fering from bouts of depression,
have taken their own lives while
listening to the recorded strains of
rock legends Ozzy Osbourne or
Judas Priest. But, should those
artists be held accountable by law
for the irrational acts of their
youthful audience who look to
them for answers?
In the cases of Ozzy Osbourne
and Judas Priest, both of whom
have been sued for allegedly
causing these teen suicides, the
answer by our legal system has
consistently and properly been
no. Those courts have held that
the artists and their disputed songs
were not accountable because
there was no evidence that the
music was intended to produce,
and likely to cause, imminent acts
of suicide. Nor could one, accord-
ing to the courts, rationally and
reasonably infer such a message
from the lyrics. See Waller v. Os-
bourne, 763 F. Supp. 1144, 1151
(MDGA 1991).
These courts, which have con-
cluded that the recorded music
before them could not incite im-
minent violence, have appar-
ently done so primarily on the
basis of context-i.e., simply be-
cause those musical messages
were recorded and were not ex-
pressed to a live audience. The
audience for that recorded mu-
sic voluntarily buys that recorded
music or turns on the television,
plays the compact discs or views
the music video on MTV, and
hears or sees the recorded mes-
sage in the privacy of their own
homes-far away from the per-
former and arguably away from
any immediately motivating stim-
uli.
But, is this the whole story? Is
Spring 1992 Dl Communications Lawyer D] 7](ViewImageLocal?handle=hein.journals/comlaw10&div=9&collection=&method=preview&ext=.png&size=3)
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Takin' the Rap - Should Artists Be Held Accountable for Their Violent Speech
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