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Terroristic Threatening or Rap Music

Terroristic Threatening: can you be incarcerated for rap lyrics? Absolutely.

On March 12, 2015, KC and Tantra from the Power 104.3 morning show here in Honolulu called me up to ask this question. Like Tantra said, “That’s his first amendment! Of course, he can say that!”

But the first amendment is limited. The classic limitation which we all know is that it is not protected to yell fire in a crowded theater (where there is no fire). Yelling fire is okay when there is a fire, you’re saving lives not threatening anybody. When there is no fire you are costing lives. Context is king. Timing is the difference between genius and criminal.

The terroristic threatening law in the state of Hawaii is very clear, any threat needs to be “unequivocal, unconditional, immediate and specific as to the person threatened, as to convey a gravity of purpose and the imminent prospect of execution”. This is a very high standard, and it is set very high specifications for the purpose to protect our freedom of speech. Remember, this is the exception that the police used to say Tom Brower did not threaten homeless people with his hammer of justice, because it was not so unconditional that he was going to attack them. This is in spite of the fact that he specifically said he felt power when people turned away as he walked with his hammer down the streets.

So when Kalani Silva says “I will kill you,” from a stage or in a freestyle surrounded by people, are the words in and of themselves enough to determine if he is guilty of terroristic threatening as a crime? The question is the context. The way I imagine the situation in my head, with no info but that in the article, I cannot imagine that it would cause him to be guilty. Rap has a long fascination with talking about crime and causing violence, Schooly D and Ice-T are some of the original rappers who had ultra-violent lyrics, but even LL Cool J would take a musclebound man and put his face in the sand. So speaking to your friends about a girl who broke your heart, using the metaphor of killing her the way she broke her heart, it may be bad poetry, but it sure doesn’t seem to be criminal terroristic Threatening.

But the longer version of the story on the Garden Island explains the backstory. He pled No Contest because in exchange the prosecutor dismissed the unrelated charges of Assault Against a Law Enforcement Officer in the First Degree. Assault on an LEO comes with a mandatory thirty-day minimum and 4 years probation. It is a felony charge. It sounds like Silva dodged a felony he might’ve lost by accepting a misdemeanor he otherwise could have escaped from. The ugly underside of criminal law is that a lot of people plead guilty to something they definitely aren’t guilty of, in order to avoid the penalty for something they might have done. The surety of the lighter punishment is often much safer than rolling the dice on a jury coming to the right conclusion. Sounds like this was a good move.

And doing a couple of weeks in jail for lyrics never hurt anyone’s freestyle game.