Why Did the Chief Justice Hold Up Eminem as a Paragon?

When it comes to free speech, all hip-hoppers are created equal.
Photograph by Redferns via Getty Images

Few today would dispute that Ruth Bader Ginsburg, at 81, tops the Supreme Court in a measure of cool factor. Just take a look at D.C. gym rats on ellipticals in Notorious R.B.G. attire, or check out the ‘Ruth Baby Ginsburg’ costume that BuzzFeed declared “Officially” the winner of Halloween, at 11:30 in the morning. But this Monday, Chief Justice John Roberts, to draw a parallel—and to win a part of the crown—quoted Eminem in the Supreme Court’s consecrated chambers.

The case of Anthony Elonis, a Pennsylvania man who, using the rap persona Tone Dougie, posted lyrics on Facebook that made his estranged wife feel “extremely afraid for mine and my children’s and my family’s lives,” hinges on the difference between free speech and “true threats,” which the First Amendment does not protect. Elonis is in court for threatening his estranged wife in Facebook comments such as “There’s one way to love you but a thousand ways to kill you” and “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.”

Justice Samuel Alito asserted that leaning on rules protecting artistic expression “sounds like a road map for threatening a spouse and getting away with it. You put it in rhyme and you put some stuff about the Internet on it and you say, ‘I’m an aspiring rap artist.’ And so then you are free from prosecution.”

But Roberts argued that it was a thin but important line. Elonis’s comments, for him, echo Eminem’s lyrics on “’97 Bonnie and Clyde.” In that track, from “The Slim Shady LP,” Eminem (Marshall Mathers) details drowning his wife, with their daughter in tow:

We're gonna take mama for a wittle walk along the pier

Baby, don't cry honey, don't get the wrong idea 

Mama's too sleepy to hear you screaming in her ear (ma-maa!)

That's why you can't get her to wake, but don't worry

Da-da made a nice bed for mommy at the bottom of the lake

Deputy Solicitor General Michael Dreeben said that this was a separate instance, because Eminem rapped these words in performance, “at a concert where people are going to be entertained.” But, the chief justice pointed, not every rapper is famous enough to perform live. “How do you start out if you’re a rap artist?” How else but through rhymes dropped online?

This is not the first time Roberts has employed pop culture: Adam Liptak of the New York Times wrote earlier in the chief justice's tenure about his citation of Bob Dylan. In one dissent, Roberts parroted Raymond Chandler: “Devlin spotted him: a lone man on the corner. Another approached. Quick exchange of words. Cash handed over; small objects handed back. Each man then quickly on his own way.” And in 2011, in a ruling on Anna Nicole Smith's heirs, Roberts began his majority opinion with a quote from Charles Dickens's Bleak House. It’s all about the high/low for Roberts. His meme, be sure, will come.

Hip-hop made it to the highest court in 1994, when the Supremes ruled in favor of 2 Live Crew, a Miami hip-hop group known for their album “As Nasty As They Wanna Be,” featuring the immortal “Me So Horny,” as well as “Dick Almighty,” “Dirty Nursery Rhymes,” and “If You Believe in Having Sex.” 2 Live Crew wrote a song called “Pretty Woman,” based on Roy Orbison’s famous ballad “Oh, Pretty Woman.” The manager of the rap group asked the Nashville publishing firm Acuff-Rose for a license to use Orbison’s song, but Acuff-Rose refused. The group released the track anyway, and Acuff-Rose filed suit against them for copyright infringement. The case rose through the courts, until it reached the Supreme Court. While the two parties eventually wound up settling, the Supreme Court ruled, in Campbell v. Acuff-Rose Music, that a commercial parody can qualify as fair use.

Justice Souter delivered the opinion for a unanimous court, while Justice Kennedy filed a concurring opinion. As an appendix, Souter quoted the entirety of the lyrics of 2 Live Crew’s song. This means that law libraries throughout the United States include the words:

Big hairy woman, you need to shave that stuff

Big hairy woman, you know, I bet it's tough

Big hairy woman, all that hair, it ain't legi-i-it

'Cause you look like Cousin I-I-I-I-It.

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