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This week two men from West London — Ishmael McLean, aged 22, and Rowan Simon, 18 — were found guilty of perverting the course of justice by posting a gangsta-style track with threatening lyrics on YouTube. The song was designed to “intimidate witnesses” in a murder trial, the prosecution successfully argued. The men will be sentenced in November. The judge has told them to expect to be imprisoned.

In recent years lots of young people have landed themselves in hot water at school or their workplace for publishing weird, inappropriate videos on YouTube. But should someone be sent to jail for writing and singing a song, then posting it online? As one contributor to an online rap discussion board put it, it’s “deep” to go to prison over a “YouTube vid”: “What are you in here for?” “Some YouTube video.”

This conviction sets a potentially dangerous precedent. If a video featuring a song with threatening lyrics — not even directly targeted at or sent to individual witnesses in the murder trial — can be said to create an “intimidating atmosphere” and thus “pervert the course of justice”, then any kind of loud, ranting, violent-minded rap might potentially find itself policed and censored.

McLean and Simon were found guilty of perverting the course of justice in relation to the shooting murder of Jason Johnson, aged 24, in Ealing, West London, in November last year. McLean had been arrested in relation to the murder, but he was never charged.

Perhaps as a way of letting off steam over his arrest, McLean recorded the song “Wrong Team” with Simon and others early this year. They sang about their hatred of people who give information to the police and about using violence against “snitches”.

“I can’t wait for the snitch to drop / I still show up at his wake to see him off”, they rapped over a soundtrack of music and gunfire. “My guns bang, your guns jam… You’re fucking with the wrong team”, they continued, also rapping about “snakes in the fucking grass” and singing the lyrics: “Mention my name [to the police], and I’ll aim and squeeze off.”

It doesn’t sound like the most toe-tapping of tunes. The lyrics are clearly vile. But can a video posted on YouTube really hamper the pursuit of justice? Traditionally, the criminal offence of perverting the course of justice has involved fabricating or disposing of evidence, intimidating or threatening a witness or a juror, or intimidating or threatening a judge.

The term “perverting the course of justice” normally brings to mind someone like Jeffrey Archer, who was found guilty of actively lying and cheating in a court of law, or those John Grisham-style situations where powerful individuals directly threaten witnesses and jurors by visiting their homes in the middle of the night or sending them intimidating letters or a horse’s head.

Yet in this case, McLean and Simon did not even know the identity of the individual who had spoken to the police about the murder of Jason Johnson; far less did they directly threaten or intimidate this witness.

As reports of their trial have made clear, they did not “know the person’s identity” — yet according to the prosecution they nonetheless “sent out a message to the community [with their rap song]”.

For anyone to have felt intimidated by McLean and Simon’s song, they would have had to go looking for it — either on YouTube, where it was originally posted, or on MySpace, where it was linked to and discussed. McLean and Simon did not directly threaten individuals but rather sang a threatening song. Those of us who believe in freedom of speech should surely insist that there is an important difference between these two things.

It is clearly a criminal offence to use words in a directly threatening way, for example by inciting another person to commit a crime or by directly threatening witnesses to a crime. But it should not be a criminal offence to use words in an indirectly threatening way, whether it is rappers singing silly songs about how much they hate gay people or West London youth rapping about shooting snitches. Hateful expression, yes. But criminal? No.

To uphold freedom of speech for all — including immature, gun-obsessed rappers as well as erudite academics and important writers — we must insist on the distinction between words which, as a key US Supreme Court ruling said, create a “clear and present danger”, and words which, while they might be ugly and full of threat, do not.

Otherwise we will get nearer to a situation where any speech could be treated as a potentially dangerous weapon, which the authorities will claim the right to disarm and ban.

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