A single threatening Soundcloud rap not enough for a judge to issue an anti-harassment order, court rules

The Supreme Judicial Court waded into an online rap battle today, in a ruling that clarifies just how far somebody who posts rap songs to online media can go before somebody else can seek a court order to make them stay away because of threats in the song.

The case involved an athlete at one Essex County high school who called another athlete at the school a pussy and threatened to "blow your fuckin' brains out soon" and to violently assault a second student sexually, in a rap posted to SoundCloud and then Snapchatted around. The decision does not identify either the students or the high school, except to say the rapper was captain of the school tennis team and one of the insulted students a member of the hockey team - which came into play when the hockey player's teammates threatened to beat the tennis player up if he didn't immediately get the song off Soundcloud, which he did.

The school suspended the tennis player for three days - and booted him as tennis captain - after word reached school administrators. According to the court record, the kid admitted posting the song and broke down in tears in a meeting with an administrator during which he said he was only trying to "freestyle" and admitted he messed up by posting a song threatening other students he barely knew.

The hockey player, his father and the other student went into their local district court to seek "harassment prevention orders" to keep the now failed rapper out of school and away from them.

A district-court ruled the song met the requirements of the state's 2010 civil harassment law, which requires evidence of at least three separate acts of "harassment," even though at issue was just a single song:

The judge concluded that "the individual statements within the song" constituted "separate acts" of harassment within the meaning of G. L. c. 258E, § 1 [the harassment law], and that those lyrics were directed at M.D. and F.K. In addition, she found that the defendant's posting of the song on two Internet websites and the fact that "at least six separate individuals" had heard the song each constituted separate acts of harassment.

SJC justices, however, concluded that was a mistake, that individual lyrics in a song do not each constitute a separate act of harassment, but that rather that the entire song and its posting constituted just one act of harassment.

The court carefully broke it down:

Because a song recorded in private, without more, cannot "in fact cause" intimidation, abuse, damage to property, or fear of physical harm or damage to property, G. L. c. 258E, § 1, the defendant did not perform a separate act of harassment merely by singing or recording the song. A recorded song may constitute an act of harassment, for the purposes of G. L. c. 258E, § 1, only when it is distributed to others.

Here, the defendant posted a single song to SoundCloud, then linked the same song from SoundCloud to Snapchat. He did not post different songs on the Internet.

By posting the song to SoundCloud, the defendant made it available to SoundCloud members. When he linked the song to his Snapchat account, he merely reshared it with SoundCloud members who were also members of the defendant's specific Snapchat network of "friends." He accomplished the two acts in close succession, and removed the song from the Internet within two hours of initially posting it. We are satisfied that when the defendant posted the song to Soundcloud and linked it to his Snapchat account, he engaged in one continuous act.

The fact that several people accessed the song on the Internet does not transform that single song into more than one act of harassment. Of course, the number of witnesses to an act properly may be considered in the context of determining the extent to which a defendant's actions were "aimed at a specific person" or did "in fact cause fear, intimidation, abuse or damage to property." G. L. c. 258E, § 1. In the context of G. L. c. 258E, however, a single act is not multiplied by the number of witnesses to that act.

Nor did the fact that M.D. received notice of the song from multiple people constitute additional acts of harassment perpetrated by the defendant. The record contains no indication that the defendant directed anyone to notify M.D. of the song. Rather, M.D. was informed about the song by his friends, acting of their own volition. Indeed, the defendant removed the song from the Internet two hours after posting it because M.D.'s friends were threatening "to beat him up." The actions of the individuals who notified M.D. about the song are not attributable to the defendant.

The defendant's conduct, troubling and offensive as it was, failed to satisfy the threshold requirement of G. L. c. 258E, § 1, that a defendant commit at least three acts of harassment, without which a civil harassment prevention order cannot issue under G. L. c. 258E, § 3 (a). Vacatur [setting aside] of the orders in this case therefore is required.

And because the harassment order was invalid, all records of it have to be destroyed, the court added.

Complete ruling (100k PDF).
Argument by defendant's lawyer (includes detailed description of the lyrics; 6M PDF).