I came across the rap music clip that recommends to burglarize the neighbor. It goes approximately like this: "Find the neighbor of race X, because they usually aren't too careful and more trusting. Watch when they usually aren't at home. Break in, don't hesitate, take such and such items, smash the mirrors. If they happen to be home don't hesitate, shoot them otherwise they will report you..." It goes on and on. They rented the house for this clip, and demonstrated how to do this in details.

I am wondering if this is illegal in California to recommend and encourage to commit a crime? He doesn't commit an actual crime, but he encourages others, and gives specific recommendations about the methods and details. I am sure there are a lot of dumb listeners who will follow and do what he recommends.

Addition: Based on the few comments saying that this isn't a crime and is covered by the First Amendment, I would like to test how much does the First Amendment protection stretch here.

What if the clip advocated committing a mass murder, like "buy a weapon, go and shoot people like some of the mass murderers did". If he romanticizes and encourages the mass murder, is this still not a crime?

Next level: what if the clip, hypothetically, would advocate the murder of the US president? Would this still be protected under the First Amendment?

Also, can the federal hate crime laws apply, because he advocates targeting based on the specific race that he mentioned?

I am pretty sure if some serious crime like that was advocated in the lyrics, prosecutors would have worked hard and would have found some statute to charge him.

  • 2
    There is PC 31. But I doubt it would apply here - it's artistic speech, and there are First Amendment protections. How would you distinguish this from a crime novel in which a burglar plans a crime in detail? Just because it's written in the imperative mood rather than the indicative? Is a court supposed to convict someone based on their grammar? Sep 21, 2016 at 20:13
  • 2
    @NateEldredge would that be the purview of the grammar police?
    – sharur
    Sep 21, 2016 at 20:26
  • What about "inciting to violence"? I found that in Ohio, for example, there is 2917.01 Inciting to violence (codes.ohio.gov/orc/2917.01v1). But I couldn't find the equivalent in CA law for some reason, except for "inciting a riot". Sep 21, 2016 at 20:39
  • 3
    No, "inciting" is more immediate. It basically requires a frenzied mob, and you verbally push them over the edge.
    – user6726
    Sep 21, 2016 at 20:40
  • Review the canonical answers to the freedom-of-speech tag.
    – feetwet
    Sep 22, 2016 at 15:51

1 Answer 1


Such a sog is probably protected under teh US First Admendment.

Brandenburg v. Ohio, 395 U.S. 444 (1969) the government may not punish "mere advocacy" of unlawful conduct, but only speech that is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action".

In the opinion the Court wrote:

See Dennis v. United States, 341 U. S. 494, at 341 U. S. 507 (1951). These later decisions have fashioned the principle that the constitutional guarantees of free speech and free press do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

As we said in Noto v. United States, 367 U. S. 290, 367 U. S. 297-298 (1961),

the mere abstract teaching . . . of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.

See also Herndon v. Lowry, 301 U. S. 242, 301 U. S. 259-261 (1937); Bond v. Floyd, 385 U. S. 116, 385 U. S. 134 (1966). A statute which fails to draw this distinction impermissibly intrudes upon the freedoms guaranteed by the First and Fourteenth Amendments. It sweeps within its condemnation speech which our Constitution has immunized from governmental control. (395 U. S. 448)

Accordingly, we are here confronted with a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action. [Footnote 4] Such a statute falls within the condemnation of the First and Fourteenth Amendments (*395 U. S. 449)

Thus a general statement advocating or encouraging the commission of a crime is protected unless it rises to the level of inciting imminent lawless action.

One who advises or persuades a specific other person to commit a crime may be held to be an accessory to the crime, but that would not apply in the situation describes in the question. This rule does not apply to one who is a member of an actual conspiracy, but mere advice will not usually suffice to make one a conspirator.

The serious nature of the crime involved is not relevant to the rule -- it arose in cases where the accused was alleged to have advocated the violent overthrow of the Unites States itself.

Hate crime laws do not purport to punish speech (or writing) they punish actual crimes actually committed by the accused, which are treated as more serious because of the motivation of the accused, of which the statements of the accused are evidence. This is not dissimilar to how a mental state "malice aforethought" increases the seriousness of an act of killing.

The mere lyrics of a song, even if they clearly advocate a specific criminal act, cannot be the basis of a criminal prosecution in the US unless they rise to the standard of "inciting imminent lawless action".

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