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Litigation Journal

Winter 2024 | Litigation Road

“Run for Your Life”

John Greiner

Summary

  • The song is a John Lennon composition that essentially tells a significant other: If you cheat on me, I will kill you.
  • Whether a nearly 60-year-old song can constitute a true threat is essentially hypothetical, the underlying issue is real.
  • Determining whether a song constitutes a true threat is as vexing a task as deciding who is one’s favorite Beatle.
“Run for Your Life”
ferrantraite via Getty Images

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Most Beatles songs have aged well. I say that, of course, as a 65-year-old white male, so I may be a little biased. Anecdotally, however, I know that my kids are fans. But because they are substantially younger than me, they don’t fall back on nostalgia when “She Loves You” comes on.

And while the tracks from Meet the Beatles! may now seem like cotton candy—tasty with no lasting nutritional value—the more sophisticated songs from albums like Rubber Soul, Revolver, and Abbey Road live on and stack up against anything produced today. But a discussion of Rubber Soul leads to a song that hasn’t aged well at all. I am talking about “Run For Your Life.”

“Run For Your Life” is a John Lennon composition that essentially tells his significant other: If you cheat on me, I will kill you. Actually, this description may be too limiting. The lyrics suggest that murder may be in the offing even after a breakup when fidelity is no longer even in play.

Interestingly, the opening line in the song—“I’d rather see you dead, little girl, than to be with another man”—comes from an Elvis Presley song called “Baby Let’s Play House.” In that song, the line is used to show the singer’s devotion to his girlfriend. Lennon took that line and gave it a much more sinister tone.

For those not familiar with the song, or who think I’m being overly judgmental, let’s consider the lyrics. Bear in mind, the song has a bouncy, almost country rock feel to it, and George Harrison’s guitar work is phenomenal. So maybe it’s easy to let the words slide. Nonetheless, the song makes matters clear from the outset:

Well, I’d rather see you dead, little girl
Than to be with another man
You better keep your head, little girl
Or I won’t know where I am

Lennon seems to be saying not only is there mortal risk to his lover in seeing someone else, but he also intends to be stealthy about what that risk would entail. Disquieting to say the least. And the lyrics continue:

You better run for your life if you can, little girl
Hide your head in the sand, little girl
Catch you with another man
That’s the end, little girl

This isn’t the end of the song, so is it the “end” for the girl? Perhaps we can discern a more benign intent if we get to know the speaker a little better:

Well, you know that I’m a wicked guy
And I was born with a jealous mind
And I can’t spend my whole life trying
Just to make you toe the line

Well, so much for that theory. Given that the speaker was “born” with a jealous mind, one can only wonder what his juvenile record looks like. But maybe this is all a joke and he’s not serious:

Let this be a sermon
I mean everything I’ve said
Baby, I’m determined
And I’d rather see you dead

No LOLs or smiley face emojis here. Lennon sounds like a determined sociopath.

The First Amendment and Threats

What does all this mean? Well, as a First Amendment lawyer, I can’t help but wonder if this misogynistic anthem could give rise to liability as a true threat. I don’t know if Lennon wrote the song with some malicious purpose or not. But what if he did? Or what if a Beatles fan repeatedly posted the song on social media with a “tag” to a significant other? Could there be any consequences? Would the First Amendment permit it? The Supreme Court’s 2023 decision in Counterman v. Colorado provides an answer, which is a hard-and-fast “maybe.”

In Counterman, a Colorado resident named Billy Counterman sent hundreds of Facebook messages to C.W., a local singer and musician. The two had never met, and C.W. never responded. In fact, she repeatedly blocked Counterman. But each time, he created a new Facebook account and resumed his contacts. Some of his messages were pleasant (“Good morning sweetheart”; “I am going to the store would you like anything?”)—except, of course, for the fact that they were coming from a total stranger. Others suggested that Counterman might be surveilling C.W. He asked, “Was that you in the white Jeep?” and referenced “[a] fine display with your partner” and noted “a couple [of] physical sightings.” A number of messages expressed anger at C.W. and envisaged harm befalling her: “F*** off permanently.” “Staying in cyber life is going to kill you.” “You’re not being good for human relations. Die.”

For her part, C.W. believed that Counterman was threatening to kill her. She was very fearful that she was being followed and would be harmed. As a result, she had trouble sleeping and experienced severe anxiety. She stopped walking alone, declined social engagements, and canceled some of her performances. Eventually, C.W. contacted the authorities.

Colorado charged Counterman under its stalking statute, which makes it unlawful to “[r]epeatedly . . . make[] any form of communication with another person” in “a manner that would cause a reasonable person to suffer serious emotional distress and does cause that person . . . to suffer serious emotional distress.” The only evidence the State proposed to introduce at trial were Counterman’s Facebook messages.

Counterman moved to dismiss the charge on First Amendment grounds, arguing that his messages were not “true threats” and therefore could not form the basis of a criminal prosecution. In line with Colorado law, the trial court assessed the true-threat issue using an “objective ‘reasonable person’ standard.” Under that standard, Colorado had to show that a reasonable person would have viewed the Facebook messages as threatening. By contrast, Colorado did not need to prove that Counterman had any kind of “subjective intent to threaten.” The court sent the case to the jury, which found Counterman guilty as charged.

The Colorado Court of Appeals affirmed. The Colorado Supreme Court denied review.

The Supreme Court Weighs In

The U.S. Supreme Court granted certiorari and took on the question of whether the state needed to prove that the speaker had a subjective intent to threaten. In reviewing the case, the U.S. Supreme Court conceded that “true threats” are not protected by the First Amendment. In the Court’s view, “[t]rue threats are ‘serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.’” In previous cases, the Court had indicated that “[w]hether the speaker is aware of, and intends to convey, the threatening aspect of the message is not part of what makes a statement a threat. . . .” This seems to suggest that the test for a true threat is “‘what the statement conveys’ to the person on the other end” of the threat. And that suggests an objective standard is in order. But the Court wasn’t certain that the objective standard ended the inquiry:

[T]he First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability. The reason relates to what is often called a chilling effect. Prohibitions on speech have the potential to chill, or deter, speech outside their boundaries. A speaker may be unsure about the side of a line on which his speech falls. Or he may worry that the legal system will err, and count speech that is permissible as instead not. . . . Or he may simply be concerned about the expense of becoming entangled in the legal system. The result is “self-censorship” of speech that could not be proscribed—a “cautious and restrictive exercise” of First Amendment freedoms.

In the Court’s view, one way to counter the chilling effect is to “condition liability on the State’s showing of a culpable mental state.” Adding this element “reduces the prospect of chilling fully protected expression.” The Court likened this subjective element to the “actual malice” requirement in public figure libel cases first announced in New York Times v. Sullivan. (As an aside, this analogy caused Justice Thomas to dissent in Counterman—he really hates New York Times v. Sullivan.) The actual malice standard says that a speaker is liable for a defamatory comment only if the speaker published it with knowledge of the falsity or with a reckless disregard for the truth or falsity of the comment. This standard provides speakers with “breathing room” and reduces the chance that protected speech will be punished.

As the Court noted,

[t]he same reasoning counsels in favor of requiring a subjective element in a true-threats case. This Court again must consider the prospect of chilling non-threatening expression, given the ordinary citizen’s predictable tendency to steer “wide[] of the unlawful zone.” The speaker’s fear of mistaking whether a statement is a threat; his fear of the legal system getting that judgment wrong; his fear, in any event, of incurring legal costs—all those may lead him to swallow words that are in fact not true threats.

Having determined that it needed to impose a subjective element in the true-threats cases, the Court next had to decide the nature of the subjective standard. In its view, there were three basic choices. On one end of the spectrum was a purposeful standard. This would require a showing that the speaker intended that his or her words be taken as threats. Next to purpose was a “knowing” standard—where the speaker to a practical certainty knows his or her words will be taken as a threat. Both of those standards are difficult to prove and, for this reason, would tip the balance too far in favor of expression and allow otherwise unprotected and dangerous speech to go unpunished.

In the Court’s view, the best standard for balancing the interests was a “recklessness” standard. A person acts recklessly when he or she “consciously disregard[s] a substantial [and unjustifiable] risk that the conduct will cause harm to another.” That standard involves insufficient concern with risk, rather than awareness of impending harm. Thanks to an enduring legal cliché, we know that the First Amendment doesn’t allow one to yell “Fire!” in a crowded theater. When you think about it, that is a recklessness standard. The joker who hollers “Fire!” may not intend to start a rush for the doors or to injure anyone caught in the rush, but in inducing panic with the word “fire,” that person is surely ignoring the obvious risk he or she has caused.

And so it is with threats. Thus, in the case of the songwriter, the question is not just whether a reasonable person would consider the lyrics a risk; rather, it is whether the songwriter consciously disregarded the risk that the lyrics would cause harm to another person—i.e., the woman he was singing about.

Could Lennon Have Been Found Liable?

But that brings us back to the original question: Could John Lennon be liable for making a true threat in “Run For Your Life”? And how would one make the case? I would suggest the analysis starts with the lyrics themselves. As noted above, the lyrics don’t seem to be presented in a joking fashion. And when someone says he is “determined,” it’s best to take him seriously. Another question worth asking is whether the lyrics suggest that the song is about a character, rather than an autobiographical number. That could be a convenient dodge for the songwriter, but it’s a point worth considering. If Lennon had fashioned the song about some third party, he would have a better argument that he was merely telling a story, not making a threat.

It would also be worth considering other works by Lennon to see if he had previously expressed any intent to harm. In a 1964 song entitled “I’ll Cry Instead,” Lennon wrote about a breakup, noting, “I’ve got a chip on my shoulder that’s bigger than my feet.” In that song, he also promises to “hide himself away,” but when he comes back, “you’d better hide all the girls, ’cause I’m gonna break their hearts all around the world.” Perhaps this is a precursor to the vengeance Lennon expresses more directly in “Run For Your Life.”

Beyond the lyrics, context matters. What was Lennon’s relationship status when he wrote the song? If he was involved in a relationship, was it contentious? Was there evidence of any form of verbal or physical abuse before he had written the song? Had he made similar comments in the past? Had the person with whom he had the relationship expressed concern with the comments?

And did Lennon take steps to ensure the other person heard the song? Things were different in 1965, but did Lennon take steps to share the lyrics with his partner? Did he deliver a copy of the recording? Today we would check Lennon’s social media history: Did he post the song in a fashion that his partner would hear it? Were there several instances where Lennon posted or otherwise displayed the song? As the Supreme Court noted in the Counterman case, while the content of the message matters, the sheer repetition—even of otherwise innocuous words—can be a factor in determining the existence of a threat.

While the question of whether a nearly 60-year-old song can constitute a true threat is essentially hypothetical, the underlying issue is real. In a 2019 case, a Pennsylvania court found rapper Jamal Knox criminally liable for making terroristic threats in a song entitled “F*** the Police.” The Pennsylvania Supreme Court affirmed the conviction, and the U.S. Supreme Court declined certiorari.

Determining whether a song constitutes a true threat is as vexing a task as deciding who is one’s favorite Beatle. But the Counterman case provides some “Help” with the task.

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