First Amendment Plays Loud in Musician's Sentencing

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By Bernie Pazanowski

July 13 — The First Amendment protects a musician who has a penchant for violent lyrics from having his songs used against him in his sentencing hearing for gun crimes, the U.S. Court of Appeals for the First Circuit held July 8 ( United States v. Alvarez-Nunez, 2016 BL 219988, 1st Cir., No. 15-2127, 7/8/16 ).

Though a musician's lyrics can be considered at sentencing when extrinsic evidence makes clear that they are tied to his motive or state of mind, the opinion by Judge Bruce M. Selya said that this wasn't such a case.

Defendant Neftali Alvarez-Nunez, a musician of note in his home town in Puerto Rico, pled guilty to possession of a firearm and ammunition by an unlawful user of a controlled substance and possession of a machine gun.

His sentencing judge looked at lyrics in his songs that promote violence, drugs and use of weapons and sentenced him over his guideline sentencing range.

No Extrinsic Evidence

The appeals court decided that using the lyrics to increase the defendant's sentence violated his First Amendment rights.

It explained that conduct protected by the First Amendment may be considered in sentencing only when it's relevant to the issues in the sentencing proceeding, the court said.

Conduct “has no bearing on either the crime committed or on any of the relevant sentencing factors, consideration of that conduct infringes a defendant's First Amendment rights,” it said.

Courts can't simply assume that violent lyrics accurately reflect a performer's motive or state of mind, the court said.

Extrinsic evidence must tie the lyrics to the crime, it said.

Evidence that might support the link between the defendant's expression and his crimes “is conspicuously lacking in this case,” it said.

Judges O. Rogeriee Thompson and William J. Kayatta Jr. joined the opinion.

Rafael F. Castro Lang represented the defendant. The U.S. attorney's office represented the government.

To contact the reporter on this story: Bernie Pazanowski in Washington at

To contact the editors responsible for this story: Jessie Kokrda Kamens at and Jeffrey D. Koelemay at

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