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ACLU's Statement in Defense of 'Bush Killa'

By Marjorie Heins, Director, ACLU Arts Censorship Project

The song "Bush, Killa," included on an album released today by the rap artist Paris, is the latest in a series of angry, highly political songs by African-American artists who dramatize scenes of racial injustice. Like Ice-T's "Cop Killer" before it, "Bush Killa" is likely to engender harsh criticism and demands for its suppression -- even, perhaps, for prosecution of the artist under civil or criminal laws.

But censoring "Bush Killa" -- or the album, Sleeping With the Enemy, on which it appears -- would be politically wrongheaded, constitutionally indefensible, and a grave injustice to the artist and the community about which he speaks. The song is part of a politically and racially charged protest message that permeates the entire album. It does not violate laws prohibiting incitement or solicitation of unlawful acts, nor does it contravene the federal law criminalizing threats against the President.

Like the vast majority of Americans, we deplore the very idea of assassinating the President of the United States. But "Bush Killa" is a political protest, not a meaningful threat against the President. As an artist and a political radical, Paris has a First-Amendment right to express his rage toward the President, and even to advocate armed revolution.

"Bush Killa" is a first-person, fantasy narrative about a man plotting to kill President Bush. Because it is obviously fictitious, and because the song deals primarily with political issues such as racism, police violence and the Persian Gulf War, it could not be considered a "true threat" against the President under the case law construing the federal statute.

Federal law states that "Whoever knowingly and willingly deposits for conveyance in the mail...any letter, paper, writing, print, missive, or document containing any threat to take the life of, to kidnap, or to inflict bodily harm upon the President of the United States...or knowingly and willfully otherwise makes any such threat against the President...shall be fined not more than $1,000 or imprisoned not more than five years, or both."

The courts have interpreted this law to apply only to meaningful, "true threats." In United States v. Howell (1983), a federal appellate court noted that "a true threat is a serious one, not uttered in jest, idle talk, or political argument," and "is willfully made if the maker voluntarily and intelligently utters the words in an apparent determination to carry out the threat." Similarly, in 1986, a federal district court ruled in United States v. Olson that an alleged violation of the law was not a true threat because the defendant "spoke his threatening words in the context of his political views primarily against the foreign policies of President Reagan." His "threats" were made for a purpose other than harming the president, and "contained no specification of time, place or date."

In 1969, the Supreme Court firmly rejected an attempt to prosecute a protester for threatening the life of the President when he used "political hyperbole" in a discussion about police brutality. The young black defendant in U.S. v. Watts had said, referring to the military draft, "If they ever make me carry a rifle, the first man I want to get in my sights is LBJ. They are not going to make me kill my black brothers."

Some states also have laws prohibiting threats against public officers. But any state law that could be interpreted to ban song lyrics would present serious constitutional problems. As the Supreme Court ruled in Brandenburg v. Ohio (1969), words advocating violence are protected by the First Amendment unless they are "directed to inciting or producing imminent lawless action," and in fact are "likely to incite or produce such action."

The narrator in "Bush Killa" attributes his actions to Reagan-Bush policies that have blocked African-Americans' civil-rights gains and encouraged racism in this country. In one section of the song, the narrator says, "So don't be tellin' me to get the nonviolent spirit/ 'Cause when I'm violent is the only time ya devils hear it" Later, he adds, "Genocide on the minds of men make/Brothas like me fill up with hate/I smell a skunk in the air/'Cause your program still ain't fair/So who ya gonna blame for the hate that hate made?"

Several other songs on Sleeping With the Enemy, including one entitled "Coffee, Donuts and Death," discuss killing police officers. Still, nothing on the album constitutes incitement to "imminent lawless action." Under our legal system, we hold criminals responsible for their acts; we do not blame songs or other forms of artistic expression.

Paris's decision to release this album on his own is a courageous one because he is stepping into a very bitter battle. Some of the people who wanted "Cop Killer" off the market evidently went so far as to phone in bomb threats and make death threats against record company employees. These were real, literal, punishable threats -- in contrast to the metaphorical fantasies on a musical recording. As music critic Jon Pareles recently noted in The New York Times, the suppression of "Cop Killer" added "a new mechanism to the repertory of censorship: If police groups don't like a song, they can make it disappear."

One unfortunate result of this controversy is that those police groups and others appear to have succeeded in intimidating the major record companies, including the two that canceled plans to release Sleeping with the Enemy. Rather than silencing the voices of rap musicians, we should be defending their First Amendment rights, and listening hard to what they are telling us about racism, violence, economic depression and political rage.

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