Even in a digital era where the Internet has arguably advanced the freedom of expression on a global scale, the boundaries of what is and isn’t acceptable aren’t always clear.
Take Orcutt rapper Anthony Murillo, for example, who—after more than two years of appeals—may end up facing a criminal trial for a rap song he posted online to social media in 2013. An appeal to the California Supreme Court was denied review in October.
Murillo faced trial when he originally posted the song, but the charges were thrown out at the preliminary hearing due to lack of evidence, according to Jennifer Karapetian, the Santa Barbara County deputy district attorney in Santa Maria currently assigned to the case.
Prosecutors filed an appeal, which was granted last July, setting the stage for a future trial. Murillo then appealed to the California Supreme Court, but that was denied review in October. Karapetian wouldn’t discuss legal strategy with the Sun, but said she’s in the process of getting the case put back on the docket.
Going by the moniker of Lil A, Murillo posted the song “Moment for Life Remix” on his Reverbnation.com profile while former St. Joseph High School student and friend, Shane Villalpando, was serving a year in jail for a conviction of having unlawful sex with underage schoolmates.
In the song, Murillo praises his “homie Shane” while taking digs at the two alleged victims for snitching on his friend and sending him to jail.
The two girls went to the police, accusing Murillo of making threats in the song. The Santa Barbara County District Attorney’s Office charged him with two counts of Penal Code section 140, which includes intimidating or threatening a witness after they’ve spoken to law enforcement.
The song, which was removed a month after it went online, contains such lyrics as, “I’ll have your head just like a deer / It will be hanging on my wall / …’Cause you’re gonna end up dead …/ ’Cause I’m coming for your head, bitch.”
The American Civil Liberties Union (ACLU) in Los Angeles and San Francisco’s Electronic Frontier Foundation (EFF) both sided with Murillo on the amicus brief to the California appellate court.
Even in this day and age, ACLU attorney Catherine Wagner said sometimes a song, or even poetry, is interpreted as having threats, although it gets a bit more complicated with rap.
“Gangster rap is an area that’s interesting,” Wagner told the Sun. “It’s a little bit more muddled because the lyrics are more explicit.”
Indeed, three rappers this year (including Murillo) have faced, or are facing, charges because of their work.
In March, a San Diego judge threw out charges of gang conspiracy against Brandon Duncan, aka Tiny Doo, for a song he produced that prosecutors say was connected to a string of shootings that occurred in 2013 and 2014.
And last month, 35-year-old rapper Alex Izquierdo with the group Brownside was arrested and is facing charges of having a concealed firearm inside of a vehicle after a video surfaced that allegedly shows him holding a revolver while tailing a Los Angeles Police Department squad car, the Los Angeles Times reported.
As similar as these cases may sound, UCLA law professor Eugene Volokh was quick to point out crucial differences.
According to Volokh, the case of Duncan—who the San Diego Police Department say is a documented gang member, according to the LA Times—is different because he was seen by prosecutors as benefitting from a gang’s illegal exploits and promoting violence.
In the case of Izquierdo, Volokh says, prosecutors are not alleging that the video itself is illegal speech like a threat might be. Instead, he said they’re using the video as evidence that he committed a crime, specifically, the carrying of a concealed weapon inside a vehicle.
Volokh said the threat needs to be relatively specific, adding that using first and last names in the song doesn’t help Murillo’s case. Volokh believes the court of appeals made a “pretty good argument,” but by no means is the case open and shut.
What is considered a true threat? While California’s appellate court focused on how a “reasonable listener” could understand that Murillo’s lyrics could “constitute a true threat,” the U.S. Supreme Court recently considered the state of mind aspect when it reversed the conviction of a Pennsylvania man, Anthony Elonis, with an 8-1 decision in June.
Elonis was convicted of posting Facebook threats to his wife, a kindergarten class, and police despite including a written disclaimer of free speech rights with his lyrics.
At the original trial, Elonis testified that he was merely emulating the lyrics of rap artist Eminem. Chief Justice John Roberts recognized this, saying that Elonis hadn’t said anything “that hasn’t been said already.”
A case like Murillo’s gets complicated, said Cal Poly journalism professor Bill Loving, a lawyer who teaches a class on media law.
“There’s this thing we call the First Amendment that will have to be weighed against the California statute,” Loving said, adding that prosecutors will have to establish that Murillo’s lyrics met the statute.
Loving used the example of how a poet’s use of metaphors can be construed to mean one thing, yet the poet means something else entirely. He pointed to the use of music experts who offered testimony in the trial that ultimately helped acquit members of the Miami-based rap group 2 Live Crew on obscenity charges in 1990.
Failing to consider the artistic aspect of the lyrics is where the appeals court decision went wrong, Electronic Frontier Foundation attorney David Greene said.
“One of the things missing from the court of appeals is anything regarding the artistic context,” Greene said. “You don’t have to stop there but it does have to be considered.”
Music aside, Loving drew a parallel to that of New Jersey shock jock and FBI informant Hal Turner, who was convicted in 2010 and spent more than two years in prison for making threats against three Chicago judges who upheld a gun ban, writing on his website that they “deserve to be killed” and he knows who can “get it done,” New Jersey’s Star-Ledger reported.
The fact that Murillo posted the song online must also be considered, Greene added.
“Since it has a much different life online, it’s really easy for it to be received in a different context than what it was intended to be received,” Greene said.
Loving said prosecutors can always try to prove Murillo’s guilt using the law of general applicability, a concept that courts have used in the past to get around First Amendment religious issues like polygamy and human sacrifice.
Even if Murillo is convicted, he can still appeal through the federal court system.
“If the prosecutor is smart, they’ll have to create a record that addresses the constitutional issues,” Loving told the Sun. “If the rapper is going to challenge this, he will have to prove that this is not a law of general applicability.”
For ACLU attorney Wagner, the greater issue is whether Murillo’s prosecution will have an effect on other artists. Both she and Greene agree that the appellate court’s decision left an inadequate framework for lower courts in deciding whether or not Murillo’s lyrics are threatening.
Wagner wouldn’t comment on whether Murillo’s case should be prosecuted except to say that it could produce a chilling effect on free speech.
“We were concerned that this was a precedent for more prosecution of aspiring rap artists and the people who might produce music with lyrics that could be perceived as a threat,” Wagner said.
Murillo didn’t respond to the Sun’s interview request, but it appears that he isn’t fazed by the latest round of legal troubles. In fact, they seem to have inspired his latest work he released on SoundCloud seven months ago under the new name of Anthony Ray.
In the song “Fast Lane,” Murillo lyricizes about being on the “front page” news and contemplates himself “going back to court” and “getting 25 to life.”
He was recently invited to tour with other artists, according to his Facebook profile.
“Got blessed today with another offer and opportunity to go back on tour,” Murillo wrote in a Facebook post dated Sept. 30, “this time with Lil Twist and Slim Jesus!!! I am very blessed!”
Staff Writer David Minsky can be reached at dminsky@santamariasun.com.
This article appears in Nov 12-19, 2015.