Rap lyrics and the First Amendment: Is “School Shooter” protected speech?

A man in upstate New York is in jail right now for a video titled “School Shooter.” He’s facing charges of making a terroristic threat.

He says he wrote the song months ago and paid a friend $80 to make the video the week following the school shooting in Parkland, Florida, in order to “capitalize” on the continued conversation about that event.

The video was filmed, at least in part, in front of a high school in Rochester, NY.

When interviewed by a columnist for a local newspaper, Randy Ross, 23, asked where the First Amendment has gone. He said the name for the song was inspired by a friend who suggested using “School Shooter” as his handle when playing “Call of Duty.”

The lyrics to the song don’t plot out a shooting. It’s not a methodical step-by-step “Here’s what I would do” type thing at all.

But does that make it protected speech? Remember that the First Amendment doesn’t protect someone who yells “fire” in a crowded theater to incite panic.

Echoes of Elonis

A few years ago, a Pennsylvania man took these kinds of questions all the way to the Supreme Court.

Anthony Elonis wrote a handful of songs filled with lyrics about killing his ex-wife, blowing up federal agents, shooting up his kids’ school. They were really messed up songs with really graphic, disturbed lyrics. But Elonis claimed they were artistic expression, protected under the First Amendment, and that he never actually intended to hurt anyone.

Anthony Elonis

Eventually, the Supreme Court decided not to rule on the case for its First Amendment implications but instead looked whether the words constituted an exact threat that a reasonable person would take seriously. The court overturned a lower court’s decision, saying the lyrics were not a “true threat,” sending him back to Pennsylvania for another hearing. His original conviction was reaffirmed.

There are tons of unanswered questions when it comes to rap lyrics and the First Amendment. The Supreme Court had an opportunity to draw some lines and provide some clarity but chose instead to take a much closer and guarded position. And that’s fine — frustrating, of course, but fine– for now.

Timing is everything

Anyway, back to the current case. It should be noted, by the way, that Ross has not personally or directly connected his case to Elonis.

In the video, Ross stands in front of Greece Arcadia High School, in Rochester, NY, and two other schools in the same area. The lyrics include “I lay ‘em down like a school shooter” and “I’ll show up at your lunch, here (racial slur) eat this, four clip let it rip” according to the Rochester Democrat & Chronicle.

The video was published Feb. 19, just five days after the shooting at the Florida high school in which 16 students and one teacher were killed.

Ross is charged with making a terroristic threat, a felony. New York State law says a person is guilty of making a terroristic threat when “he or she threatens to commit or cause to be committed a specified offense and thereby causes a reasonable expectation of fear or the imminent commission of such offense.”

In a post on his Facebook page, Ross, aka Randy Ross the Rappin Boss, writes “My video has officially reached the police officials. And they just came to my job and questioned me. On everything I love. Please share my video before it gets removed.”

(The video is still available and has been viewed more than 26,000 times as of this posting on March 4.)

Is this protected speech?

When interviewed a few days later by David Andreatta, a columnist for the Democrat & Chronicle, Ross questioned whether his First Amendment rights were being thrown out.

Ross, 23, said he was “scared to death” about what was happening to him.  He told Andreatta he paid a friend $80 to film the video recently for the song he wrote six months ago, releasing it now to “capitalize on the national conversation about the tragedy.”

Randy Ross

He said the name was inspired by a friend, who suggested using “School Shooter” as his player name in “Call of Duty.”

“I didn’t do anything wrong,” Ross said. “It’s a simile, you know, a comparison using the word ‘like’ or ‘as’.”

When pushed by Andreatta, Ross said he could be talking about laying “anything” down. “I’m laying down my music.”

A Go Fund Me page set up by a friend to try and raise bail money and help Ross support his young daughter has a goal of $100,000. After four days, there were zero donations.

Ross is a graduate of Greece Arcadia High School but no school is specifically named in the song.

Maybe this will blow over and the terrorism charge will be dropped. Maybe Ross’ First Amendment question is valid here. Maybe his intention, to “capitalize” on the conversation about school shootings and drive more traffic to his song and his career, really is all he’s trying to do here.

He’s certainly gotten his wish — people are talking about him and his song.

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