MySpace Posting Lands Rapper In Criminal Court

A Virginia appeals court this week upheld the criminal conviction of John Andrew Collins Holcomb. His crime? He posted rap lyrics on his MySpace page. Now, if you feel like I do about most rap music, you may be saying to yourself “good” or “about time.” But let’s put those feelings aside for just a minute.

Virginia Code Section 18.2-60(A)(1) provides:

Any person who knowingly communicates, in a writing, including an electronically transmitted communication producing a visual or electronic message, a threat to kill or do bodily injury to a person, regarding that person or any member of his family, and the threat places such person in reasonable apprehension of death or bodily injury to himself or his family member, is guilty of a Class 6 felony

Holcomb posted the lyrics while in the middle of a custody dispute with his then girlfriend. He referred to the girlfriend by her maiden name. The lyrics included such charming phrases as “Slit your neck into a fountain drink.” The post ended with this reminder” “Still labeled psychotic just in case you’re not worried; murder makes me happy so don’t believe I’m nervous.”

No doubt the words are threatening. But that’s only part of the equation. According to the statute, the threat needs to place the person in reasonable apprehension of death or bodily injury to himself or his family member. Now, if I’m all up in your grill (rap talk) when I talk about “slitting your neck” your apprehension would be reasonable. That is the power of immediacy. But if I post those sentiments on a social media site, not even knowing when or if you’ll see them, it seems to me the threats lose a little something. In Holcomb’s case, the girlfriend didn’t even own a computer. Like it or not, the First Amendment does apply here. And the Supreme Court has consistently protected speech – even speech that advocates violence – unless the speech not only calls for violent action, but the violence is “imminent.” It’s hard to see how Holcomb’s violent talk would spur “imminent” violence given that he didn’t think his girlfriend would even see the post. In a 1982 case called NAACP v. Claiborne Hardware, the Supreme Court reversed a judgment against Charles Evers, who said in a speech in Claiborne County Mississippi that residents who didn’t honor an NAACP boycott of certain merchants would have their “damn necks broken.” The Court found that the First Amendment protected Evers’ speech. Holcomb’s lawyers may want to take a look at that case.