Supreme Court declines case about YouTube music video gone wrong

A father locked in a bitter child visitation dispute chose a highly unorthodox way to express his mounting frustration with the legal system. He produced an edgy music video and posted it on YouTube.

The father, Franklin Delano Jeffries II, considered his musical creation part personal therapy and part satire – a kind of joke on the oppression of the family court system. He called it “comedy for the courts.”

There was just one huge problem: No one was laughing – especially the judge.

At one point in his video, Mr. Jeffries sings to the judge: “I guarantee you, if you don’t stop, I’ll kill you.”

Jeffries quickly found himself in a different courtroom – this time as a criminal defendant charged and convicted of making illegal threats. He was sentenced to 18 months in prison.

In his appeal, he claimed he never intended his YouTube video to be an actual threat.

It didn’t matter. The lower courts upheld his conviction and, on Monday, the US Supreme Court refused to hear his final appeal, thus ending the case.

The case was potentially significant because it raised the issue of when threatening words exceed First Amendment protections and enter the realm of illegality.

US Solicitor General Donald Verrilli had urged the high court to deny Jeffries’s petition.  

Jeffries’s lawyers argued that the First Amendment prohibits the government from using a man’s words against him without first proving that the words were delivered with a genuine intent to cause harm.

Prosecutors replied that what Jeffries intended didn’t matter; the words in his music video were actually threatening and, thus, violated the federal threat law.

Here’s another sample of his lyrics:

And when I come to court this better be the last time.

I’m not kidding at all, I’m making this video public.

’Cause if I have to kill a judge or a lawyer or a woman I don’t care.

And this:

Take my child and I’ll take your life.

I’m not kidding, judge, you better listen to me.

I killed a man downrange in war.

I have nothing against you, but I’m tellin’ you, this better be the last court date.

Mr. Verrilli said in his brief to the court that the YouTube video clearly demonstrates that Jeffries was attempting to intimidate the judge into making a favorable ruling in his case. The harsh comments were designed to put the judge in fear for his life or in fear of bodily harm, the solicitor general said.

Verrilli also said Jeffries’s lawyers were wrong to argue that prosecutors must prove that a speaker had an intent to intimidate.

“Nothing in the text of the threat statutes ... requires the government to prove that a defendant subjectively intended his communication to be regarded as a threat,” he wrote. “A statement that a reasonable person would regard as a threat to kill creates fear and disruption, regardless of whether the speaker subjectively intended for the statement to be taken as a threat.”

There is a split among the appeals courts on that question, but it is a lopsided split. The Ninth Circuit Court of Appeals in San Francisco has held that the government must prove intent to prosecute someone in a threat case. In contrast, the First, Second, Third, Fourth, Sixth, Seventh, Eighth, Tenth, and Eleventh Circuits have ruled that evidence of specific intent is not required.

Washington lawyer Charles Rothfeld urged the high court to take up the appeal and embrace what he said was a common-sense approach to enforcement of the threat law. A listener confronted with a menacing statement directed at him will frequently respond with a question: Is that a threat?

Such a question would be nonsensical, Mr. Rothfeld said in his brief, “if, as the government maintains, a ‘threat’ is anything that a reasonable person would understand to be threatening, regardless of the speaker’s actual intent.”

Rothfeld acknowledged that his client’s YouTube music video was anything but a valentine to the judge. But without proof that Jeffries produced the lyrics with the intention of intimidating the judge, it did not amount to a true threat, he said.

“Portions of the petitioner’s video, viewed in isolation, doubtless would be taken as threatening,” Rothfeld wrote. But he said if Jeffries had been permitted to offer evidence at his trial of his subjective intent, he could have shown the jury that he made the video “as a therapeutic effort to ‘vent’ rather than to intimidate.”

A therapist had advised Jeffries to try to vent his emotions rather than bottle them up, Rothfeld said. “He was told that one good way to do this was through unscripted songs, which [Jeffries] found easier to do than writing his thoughts down with pen and paper,” the lawyer said, quoting from a trial sentencing memorandum.

It is not clear from the court record whether the advice included posting the resulting “vent” on YouTube.

The music video was live on YouTube for 25 hours before Jeffries took it down. His ex-wife’s sister saw a link to it and notified the judge.

The case was Jeffries v. US (12-1185).