Who Gets to Talk About Killing Cops?

"Let's kill the cops tonight." So sung John Maus in his 2011 synthpop masterpiece, "Cop Killer." Back in 1992, Ice-T roared "Cop killer, I know your family's grieving… but tonight we're gonna get even" in Body Count's notorious classic, also titled "Cop Killer." Political hysteria saw that song banned from the band's LP, but "Cop Killer" rose to cult status despite — or perhaps thanks to — the controversy.

Maus was never arrested for releasing his song, and none of Body Count's members faced charges over their lyrics. For the past 15 years, Ice-T has played a cop on TV.

Still, I would advise against posting lyrics to either song on your Facebook page. Since two NYPD officers were shot dead last month by a gunman who had vowed online to "put wings on pigs," several arrests have been made of people posting messages about killing cops on social media. At least three arrests over such threats were made in New York in the days immediately following the ambush police killing. A Pennsylvania man was arrested for writing "The police brought this on themselves! I say kill them all! Enough is enough," among other posts expressing the same sentiments online. A Massachusetts man was arrested over an Instagram post that quoted the cop killer's phrase "put wings on pigs."

Ferguson police emails reveal life is very rough for officers. Read more here.

Of the New York arrests, authorities stated, "All threats against members of the NYPD are taken seriously and are investigated immediately to determine the credibility and origin of the information." In a similar vein, the Daily Beast's Jacob Siegel attempted to track down the "monsters" who started a chant that echoed through Manhattan avenues in mid-December: "What do we want? Dead cops! When do we want them? Now!" But that chant, or some variation of it, has been going on for years, passed from anti-police brutality march to anti-police brutality march long before this current wave of protest began. He might as well have blamed Ice-T.

The paranoid policing of anti-police language is explicable in light of the murder of two officers. Yet the string of arrests and broad investigations into social media posts poses a dangerous threat to First Amendment protected speech. If it cannot be shown that the author had actual intent to threaten the safety of a person — whether a police officer or not — then speech, even violent speech, is not illegal. Ismaaiyl Brinsley, who shot dead the NYPD officers, had posted his intent to do so online, but it does not follow that violent anti-police speech per se constitutes a genuine threat on life.

To assume otherwise is to ignore a mainstreamed culture of speech and imagery. Roman Gavrais' artful music video for Jay-Z and Kanye West's "No Church In the Wild" opens with a masked protester lobbing a Molotov cocktail at a police line. Artists from Dead Prez to Bruce Springsteen to Stephen Sondheim helped insert cop hating into the cultural imaginary long before Darren Wilson shot dead Mike Brown in Ferguson. Yes, there is a difference between rhetoric about hating the police and rhetoric about killing the police, but there are ample examples of both in mainstream culture.

There is also a difference between artistic expression and intentional threat. Authorities are erring on the side of caution when it comes to social media postings in light of Brinsley's actions, but the same caution was not deemed necessary in response to Time Warner's release of Body Count's "Cop Killer" shortly before the 1992 LA riots. Death-to-cops language, while regularly decried, is taken less seriously when produced under the imprimatur of a major studio or renowned artist. Musicians and performers can rely on the argument that they are not speaking as themselves when calling for dead cops. As Ice-T said of his band's controversial track, "If you believe that I'm a cop killer, you believe David Bowie is an astronaut."

Meanwhile, it is assumed of social media profiles that individuals are expressing their own opinions and desires.Crucially though, Ice-T also said "I ain't never killed no cop. I felt like it a lot of times." According to the Supreme Court, the Constitution protects speech that is not deemed to be a "true threat," whether in lyrics or on Facebook. In the age of social media, when public platforms are no longer the preserve of public figures, it seems unfair that the purview to express violent anti-police sentiment without risking arrest be reserved for famous artists. If 2014 showed us anything, it is that many Americans are furious at policing in the US. Fury that finds violent verbal or written expression may be deemed hateful, but it should not necessarily be criminal.

Which online speech acts get to be criminalized — understood as genuine threats of physical violence — is a matter of current judicial contention, but tends to primarily rest on what is believed to be the author's intent. The Supreme Court is considering the case of Anthony Elonis, who posted vile posts on Facebook vowing to murder his estranged wife. Elonis is claiming that his posts were rap lyrics, conveying no real intentions, and should be considered protected speech. Similarly, the so-called "cannibal cop" Gilbert Valle saw his conviction overturned on the premise that he never intended to carry out the cannibalistic acts he fantasized about on online message boards. But Elonis' case might present a precedent-setting turning point for legal deliberations over what constitutes a threat online. The Court could decide whether threat lies in authorial intention alone, or whether, as the government is arguing, it should be determined by what would be deemed genuinely threatening by that slippery character of legal fiction, a "reasonable person."

If the justices decide that threats should be judged by the objective criterion, it seems clear that the judgment of a reasonable person should not align with the determinations of the police today — especially not an NYPD that believes itself under "attack" from the city's mayor because he has expressed tepid criticism. On either reading of threat — either authorial intent to cause physical harm, or the objective reading of something as threatening — the sort of anti-police speech that is being persecuted right now does not pass muster. Brinsley's cop killing messages are anomalies that should not be taken as exemplar, especially since decades of mainstream popular culture have been peppered with (protected) expressions of desire to see cops dead.

NYPD reportedly investigating social media calls for 'Kill a Pig Night' on New Year's Eve. Read more here.

"'Cop Killer' is the perfect way of putting over the idea that any worthwhile political or artistic agenda should be seeking an undoing of the situation as it stands," John Maus told the Guardian. "Whether the status quo is a political state or a musical language, the idea should be to kill or overthrow that. The song's not about killing a human being, but about overcoming inhumanity."

This sort of expression, even if just posted online, is deserving of not only constitutional protection but also a nuanced understanding. Enraged by countless stories of police brutality and the killing of unarmed black men, many people have expressed a desire to kill the institution of policing in its current iteration. As Evan Calder Williams suggested in The New Inquiry, the police can be seen as "indirect hostile objects, inflections of the hostility they navigate and enforce." Most so-called threats on police are not threats to individual lives, which would indeed deserve strong condemnation. Rather, they are calls for death to the hostile object of policing, as is expressed and represented by the uniform.

Follow Natasha Lennard on Twitter: @natashalennard

Image via Flickr