During last week’s BET awards, Eminem premiered a four-and-a-half minute freestyle blasting President Trump. The performance uses expletives and defiant language that is occasionally violent. But did Eminem threaten Trump, in the legal sense? The First Amendment protects free speech, but there are limits on that protection. In fact, it’s a federal crime to threaten the president with bodily harm. So, what does that mean for a rapper who wants to focus his full arsenal of verbal weaponry on the president? I don’t know if Eminem asked a constitutional expert, so I did it for him.
“That’s an awfully hot coffee pot. Should I drop it on Donald Trump? Probably not. But that’s all I got ’til I come up with a solid plot. Got a plan, and now I gotta hatch it. Like a damn Apache with a tomahawk”
First, let’s kill the suspense. Did Eminem break the law in any way? No. According to Cornell Law professor, Nelson Tebbe, there is “no chance” that Eminem’s performance is anything other than protected speech. But how is that? The rapper describes “hatching a plot,” along with some violent acts like throwing Trump against a wall. He even suggests hitting him with a pot of hot coffee, an assault that admittedly seems tame given some of Eminem’s lyrics historically, but an assault all the same. As it turns out, to prohibit threatening speech, the threat of violence must be imminent.
As the law stands, the government can’t prohibit speech unless it poses a clear and present danger, and that danger must be imminent. And so, a vague reference to a wall slam or a hypothetical coffee dousing wouldn’t satisfy the test. According to Tebbe, you have to look at Eminem’s actual intent and ask whether the threatened violence is both imminent and likely. If not, the speech is protected.
OK, it’s protected, but could Eminem have legally gone further? Could he have gotten away with describing even more violent acts? Eminem has a number of extremely violent songs. For example, in his song ’97 Bonnie & Clyde, he describes murdering his ex-wife and throwing her in a lake. Would it be any different if the song was about the president? The short answer is no. Speech doesn’t lose protection just because it’s about the president. In fact, according to Tebbe, since Trump is a public figure, Eminem’s speech about him likely merits additional protection as it can be viewed as political in nature.
Ok but there is a law that makes threatening the president a crime. Specifically, federal law criminalizes “any threat to take the life of, to kidnap, or to inflict bodily harm upon the President” (18 U.S.C. § 871 ). Notwithstanding, the federal law must still fall within constitutional limits, and the Clear and Present Danger test still applies. So, whomever Eminem may want to threaten in a song or poem, his constitutional protections remain in place. The federal law just affects the potential for punishment if the incitement test is actually meant. In that case, Eminem would face different criminal charges, and the potential jail time could be longer.
Did Eminem threaten President Trump? Perhaps in some general sense, he did, but legally and constitutionally, his speech is protected.
Special thanks to Professor Tebbe for the Constitutional advice. Any oversimplification in this article should be attributed to the author and not to him. Joel Cohen is the founder of TalksOnLaw, a legal education platform explaining law through video. He has a JD and a masters in comparative law from Duke Law School.