JONATHAN TURLEY: Afroman turns court into First Amendment rap lesson on rights
When singer Joseph E. Foreman took the stand recently in Ohio, his message, like his lyrics, was hardly subtle. Indeed, counsel may have been unsure whether to examine or to hoist him. The rapper, known as "Afroman," appeared in a suit modeled after an American flag with matching flag-patterned sunglasses. He lashed out at the seven police officers who raided his home and then sued him for publicly mocking them. He insisted that he was the virtual embodiment of the First Amendment in all of its glory.
The jury agreed, at least insofar as finding him protected in his parody and public portrayal of the officers.
Almost three years ago, I wrote about the case and expressed deep skepticism about the legal viability of the case in light of free speech protections for filming and criticizing public officials.
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Foreman, 51, became famous for a humorous rap song, "Because I Got High." Later, he became even more famous after the released security camera footage of officers breaking down the door to his home with drawn weapons. While the warrant was granted to look for evidence of kidnapping, marijuana and drug paraphernalia, they found nothing.
Foreman then decided to go on the offensive with videos showing the raid and rap songs using his signature style to mock the officers (including one who seemed to stop in the midst of the raid to look at a fresh lemon pound cake on the counter). He told NPR, "I asked myself, as a powerless Black man in America, what can I do to the cops that kicked my door in, tried to kill me in front of my kids, stole my money, and disconnected my cameras? And the only thing I could come up with was make a funny rap song about them… use the money to pay for the damages they did and move on."
In "Will You Help Me Repair My Door?" he taunted the officers: "Did you find what you were looking for?/Will you help me repair my gate and door/Would you like a slice of my lemon pound cake?/You can take as much as you want to take/There must be a big mistake."
The humor highlighted what he viewed as an absurdly broad warrant: "The warrant said 'Narcotics and kidnapping'/The warrant said "Narcotics and kidnapping"/Are you kidding? I make my money, rapping/Why does the warrant say 'Narcotics?' (Well, I know narcotics)/But why kidnapping?"
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That was followed up by an even more popular video titled "Lemon Pound Cake": "The Adams County Sheriff kicked down my door/Then I heard the glass break/They found no kidnapping victims/Just some lemon pound cake... Mama's lemon pound cake/It tastes so nice/It made the sheriff wanna put down his gun/And cut him a slice (of what? Of what?)."
It became an instant hit.
Some of the images from Foreman's security cameras were also used to sell commercial products, including promotional videos. In an Instagram post, he wore a shirt with the surveillance images and thanked one of the officers for helping him get 5.4 million views on TikTok.
In a social media posting, he wrote, "Congratulations again you’re famous for all the wrong reasons."
The six officers and one detective were obviously irate at the public abuse and ridicule that followed. In their complaint, they alleged that their families were traumatized and harmed.
The mockery continued during the trial.
Foreman's appearance in his flag suit captured his style and his strategy. He was there to make an unmistakable point and the flag outfit was part of the effort to attract maximal attention.
While controversial for some, his fashion choice followed other famous free speech advocates. Hustler magazine publisher Larry Flint, in 1983, wore a flag diaper to court. (He was then charged with desecrating the flag — a charge later dropped by prosecutors.)
Likewise, in 1968, activist Abbie Hoffman wore a shirt resembling an American flag to a House Un-American Activities Committee (HUAC) hearing, protesting the Vietnam War. When he was arrested, he declared, "I regret that I have but one shirt to give for my country." (His conviction was later overturned.)
Foreman attacked Adams County Deputy Sheriff Lisa Phillips in an expletive-laden music clip posted on Instagram just hours after she gave tearful testimony in court: "Where was these tears when she was standing in my yard with a loaded AR-15 ready to Swiss cheese me?"
Foreman was equally unapologetic on the stand: "All of this is their fault. If they hadn't wrongly raided my house, there would be no lawsuit, I would not know their names, they wouldn't be on my home surveillance system and there would be no songs."
My skepticism about the lawsuit stemmed from the obvious opinion and political content of his posting. Courts have also ruled that citizens may film officers in public despite repeated efforts to criminalize such filming.
The claims of defamation, misappropriation of names or likeness, and false light all ran into the same First Amendment protections.
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Foreman is an artist expressing his criticism of the police in the raid on his home. Foreman had a right to object to the raid that he viewed as unjustified and even racially motivated.
Foreman clearly used his celebrity status to exact a measure of revenge. However, any liability for showing officers during a raid would have had a chilling effect on political speech, including when such speech is part of creative work.
Since the founding of the Republic, parody and songs have been used to criticize government officials and policies.
Foreman celebrated after the verdict, proclaiming, "It's not only for artists. It's for Americans. "We have freedom of speech. They... did me wrong and sued me because I was talking about it."
Yes, Foreman is over the top in every respect. Yet, there was a method to the madness. Strip away the flag suit, the over-the-top lyrics, he had a point. Add the suit and the rap, he had an audience.