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Hudson Jr.: Federal appeals court rules artistic expression can’t be used to punish defendant

Every year federal and state courts issue countless free-speech decisions – some protective of free-speech values and some inimical to those values. During calendar year 2016, one of my favorite decisions came from the pen of federal appeals court jurist Bruce M. Selya.

Judge Selya is known for his distinctive writing style. He showcased his distinctive style in a case involving a defendant whose sentence ostensibly was enhanced because of his music lyrics and videos.

Neftali Alvarez-Nunez, a 34-year-old with no adult criminal history, pleaded guilty to unlawful possession of a machine gun and ammunition. The typical sentencing guideline suggested he receive a sentence of 24 to 30 months. Instead, a federal district court in Puerto Rico sentenced him to 96 months in prison.

The district court relied on the defendant’s musical performances with the group “Pacho y Cirilo.” Many of the group’s songs and music videos include references to guns, drugs, and violence. The group allegedly is popular within the Juana Matos Public Housing Project, a high-crime area.

On appeal, Alvarez-Nunez contended that his sentence violated his First Amendment right to artistic expression. A three-judge panel of the 1st U.S. Circuit Court of Appeals agreed with him in its July 8, 2016, opinion in United States v. Alvarez-Nunez.

Writing for the panel, Selya reasoned that the government needed to show a reasonable connection between the defendant’s artistic expression and his unlawful possession of a machine gun. The government showed no such connection. “Nothing in the record indicates that the lyrics or music videos had any direct application either to the defendant or to his lifestyle,” the panel wrote.

The appeals court concluded that the lyrics and videos were “akin to an actor inhabiting a role.” Just because a musical performer’s art may contain violent themes doesn’t mean that the artist lives a violent lifestyle.

The appeals court vacated the defendant’s sentence and sent the case back down to the district court for a new sentencing proceeding.

At the new sentencing proceeding, the lower court will not be able to use the defendant’s artistic expression to punish the defendant.

The 1st Circuit panel decision reflects a victory for both artistic expression and common sense. As Judge Selya wrote, “the sentencing court confused the message with the messenger.”

Many artists explore all sorts of themes in their work. They generally shouldn’t be punished for protected expression.

Kudos to Judge Selya for a beautifully-written free-speech opinion.

David L. Hudson, Jr. is the author of “First Amendment: Freedom of Speech” and co-editor of “The Encyclopedia of the First Amendment.” He is the ombudsman for the First Amendment Center in Washington D.C.

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