The Supreme Court holds that the content of the disputed song lyrics should be considered acceptable with regards to freedom of expression, reversing the court of appeal’s verdict.
In August 2018, Swedish hip-hop artist Frej Larsson was prosecuted for threatening a public official, after having released a song titled “Then she’ll be shot”. The song contained the name of a Swedish police officer, and the phrase “Then you’ll be shot” in the chorus (alluding to a well-known Swedish birthday song).
The police officer in question had previously been involved in an intervention that took place on a concert where Frej Larsson was performing. The officer later delivered a statement in the media, questioning the appropriateness of the concert. In response, Frej Larsson wrote the disputed song and published it on Spotify. According to the prosecutor, the song comprised a threat against the officer on account of the officer’s exercise of public authority.
Frej Larsson was acquitted by the first instance court but sentenced to a conditional sentence and 70 day fines by the court of appeal. In September 2020, the Supreme Court decided to grant a leave of appeal in the case.
In its ruling, the Supreme Court observes that the offence “threat against a public official” is intended to prevent undue pressure from being exerted against individuals tasked with exercising public authority. As opposed to the offence “unlawful threat”, “threat against a public official” does not require that the threat in question be liable to arouse serious fear for threatened. It is nonetheless required that the threat appears meant to be taken seriously.
Further, and as is the case with other offences involving threats, the Supreme Court notes that the penal provision must not be applied in a way that is contrary to freedom of expression, as put forth in the Swedish Instrument of Government and the European Convention on Human Rights. According to the Supreme Court, this applies in particular for statements made within a political or cultural context:
When balancing the interest of free speech with the interest of preventing attacks against public officials, the interest of free speech should be given a wide margin. A democratic and pluralistic society must allow for provocation and questioning in texts and music performed within a cultural context.
The Supreme Court notes that the song lyrics – which, apart from the name of the police officer, repeatedly mentions the phrase “Then you’ll be shot” – could be deemed to contain threats of violence according to the wording of the penal provision. At the same time, the court observes that the phrases included in the lyrics are vague and could be regarded as metaphorical, and that they form part of a provocative polemic within “a music genre where the tone may generally be rough”.
In light of the circumstances of the case, the Supreme Court therefore finds that the content of the song – “although coarse and surely discomforting” for the police officer in question – shall be deemed acceptable with regards to the interest of freedom of expression – and not punishable.
The Supreme Court’s judgement was not unanimous. Three Supreme Court justices decided on the acquittal, while two justices delivered a dissenting opinion, affirming the court of appeal’s conviction.
The Supreme Court’s judgement of the 31st March 2021, case no. B 6101-19, is available here (in Swedish).