When two aspiring hip-hop artists from Massachusetts were hauled into court last month and charged with making threats against police in a rap video, everyone in the court room, from the defense attorneys to the prosecutors, agreed on one thing:
Matthew Rufino, 24, and Jason Foley, 28, do not have a bright future ahead in hip hop.
Watch 4 Me, the low-budget YouTube video that landed the pair behind bars, shows Rufino and Foley rapping inside some kind of dark tent, with blurry google images of shootouts and mangled police cruisers to illustrate their violent lyrics.
The four-minute clip, posted by 508 Productions on Nov. 1, is an unmistakeably amateur attempt at gangsta rap. But unlike the commenters on YouTube, Massachusetts State Police didn’t take the video lightly.
On Nov. 20, Rufino and Foley were arrested and charged with making threats to commit a crime, threats to use a firearm and intimidation of a witness. They were ordered held without bail at a dangerousness hearing Monday, and they’re now awaiting trial inside state prison.
The lyrics of Watch 4 Me are, to be sure, completely foul. But how did Rufino and Foley wind up on the wrong side of the first amendment, when hundreds of other rappers have recorded odes to killing police officers?
In the seminal gangsta rap hit Fuck Tha Police, released by N.W.A. in 1989, Ice Cube warned he’d “swarm on any muthafucka in a blue uniform … And when I’m finished, it’s gonna be a bloodbath of cops, dyin’ in LA.” The reaction? A strongly-worded letter from the director of the FBI.
Three years later, Ice-T followed up with the controversial song Cop Killer, where he rhymed, “Got my twelve gauge sawed off. I got my headlights turned off. I’m ’bout to bust some shots off. I’m ’bout to dust some cops off.” Today, he’s on Law & Order.
The difference, prosecutors say, is that Rufino made specific threats against his supposed targets — a parole officer, a state trooper and the New Bedford Police Department — by calling them out by name.
In his 12-bar verse, Rufino identifies the female parole officer assigned to him in 2006 after a marijuana arrest, followed by an expletive and the sound of gunfire. The lyric is accompanied by a picture of a woman with a gun to her head. Similarly, he names a state trooper who gave him a ticket for driving with a suspended license and the NBPD, both followed by expletives and gunshots. The video also contains footage of the local police station and NBPD officers working construction details.
For Bristol County prosecutors, Rufino crossed the boundary of constitutionally protected speech:
“We can’t afford to wait and see if these individuals intended to carry out these acts or not,” said assistant DA Steven E. Gagne in court. “We can’t afford to give them that chance.”
But are the words and images in the song really a “true threat” to the individuals who are named? Rufino’s defense attorney disagrees, and she just might have a case.
“It’s not wise. It’s offensive, but it’s not criminal,” said defense lawyer Erin Steadman.
*Foley, who also raps about shooting police officers in the video, didn’t name names. He’s a co-defendant because police say he edited and uploaded the video.
As with all aspects of constitutional law, the definition of a “true threat” is hazy. In 2003, the supreme court ruled that a true threat is a “serious expression of an intent to commit an act of unlawful violence to a particular individual or group individuals.” In addition, the court ruled that prosecutors don’t need to necessarily prove that Rufino intended to carry out the acts he described. Rather, the burden is to show that the parole officer, state trooper or NBPD officers felt intimidated by the threat of violence.
It might be a hard sell, though, given how little Rufino actually said in the song:
NBPD (ha ha)…fuck you, this is for you.
For my fucking probation officer, too.
(name removed), fuck you [gunshot].
Officer (name removed), fuck you [gunshot].
NBPD, fuck you [gunshot].You can suck my motherfucking gritty dick,
This is Automatic, 508, you gotta feel this shit.
You ain’t gonna tell me nothing,
Try to pull me over next time?
[gunfire] A’ight, it’s overtime.Over my dead fucking body,
Take me away, dog? Not stopping me.
You better bring the whole U.S. Army,
and the fucking Marines to try to take me in.
The Bristol County DA also seems to be blazing a trail in trying to prosecute a rapper for anti-cop lyrics. The only other case I could find was resolved in July 2009, when a 20-year-old Florida man was sentenced to two years in jail for a rap song he posted on MySpace. In that case, Antavio Johnson specifically named a police officer and described putting a “cap” in his “dome” — a far more descriptive passage than Rufino’s vague lyrics.
Florida prosecutors also didn’t have the burden of proving the case against Johnson in court — he pleaded no contest before it went to trial. The ACLU has since become involved in the case on first amendment grounds.
Note: Rufino and Foley are, of course, innocent until proven guilty, and it hasn’t been proven that they had anything to do with the video.