Putting the Rap in RAP Sheet: Pennsylvania Supreme Court Rules Threatening Lyrics Against Police Are Not Protected by First Amendment

In Commonwealth of Pennsylvania v. Jamal Knox, Pennsylvania’s highest court upheld a rapper’s criminal conviction and ruled that his rap song that identified Pittsburgh police officers by name and made direct threats of violence against them is not protected speech under the First Amendment.

This ruling highlighted that other courts, such as the Ninth Circuit, have ruled differently on what should be protected by the First Amendment, creating a split in the Circuits and potentially setting up the issue for a Supreme Court rap battle.

Background Regarding Rap Song

In 2012, Jamal Knox and Rachee Beasley were arrested on various drug and weapons charges.  While the charges were pending, Knox and Beasley wrote and recorded a rap song titled “F—the Police,” which was then uploaded to YouTube by a third party and shared on a public Facebook page.

The song contains graphic language depicting violence towards police and specifically referenced the officers who were scheduled to testify against Knox and Beasley. Under the rap song “Mayhem Mal,” Knox raps: “The first verse is for Officer Zeltner,” and in the second line he calls out Officer Kosko.  The music video, which was removed from YouTube after three days, also featured photos of the officers.

The song includes lyrics such as, “I got my Glock and best believe dog gonna’ bring the pump out and I’m hittin’ your chest,” as well as, “I’ma jam this rusty knife all in his guts and cop his feet.”  The song ends with, “Let’s kill these cops ’cause they don’t do us no good.”  The song apparently was a remake of the famous 1988 N.W.A. song “F—Tha Police.”

During trial, Officer Kosko testified that when he heard it he was shocked and it made him nervous. He cited it as one of the reasons he decided to leave the Pittsburgh police force and relocate.  Detective Zeltner stated he found the video very upsetting, and that it made him concerned for his safety as well as that of his family and fellow officers.

Knox and Beasley were convicted of making terroristic threats and witness intimidation for writing and performing the song.

Pennsylvania Supreme Court Ruling

Knox appealed his conviction, arguing that the song was “artistic,” and that he did not intend it to be a threat.  He also argued that there was no proof that he or Beasley meant for the officers to hear it because they did not post the video themselves.  Eventually, Knox’s case made its way up the Pennsylvania Supreme Court.

Knox’s appeal was supported by several amicus briefs from free speech groups such as the ACLU and the Thomas Jefferson Center for the Protection of Free Expression.  These groups argued that violent depictions receive First Amendment protection in other media such as films and video games, and that the same protection should extend to rap music as a medium for the expression of ideas.  However, the Pennsylvania Supreme Court was not convinced.

On August 21, 2018, the Court issued a lengthy opinion affirming Knox’s conviction. Going through decades of First Amendment cases, the Chief Justice Thomas G. Saylor, writing for the majority, summarized the current law as follows:

First, the Constitution allows states to criminalize threatening speech which is specifically intended to terrorize or intimidate. Second, in evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances….

Applying this framework, and looking at the specific facts of this case, the Court noted that the lyrics of the rap song at issue “do not merely address grievances about police-community relations or generalized animosity toward the police. They do not include political, social, or academic commentary, nor are they facially satirical or ironic.”  Instead, the Court found that the lyrics were “both threatening and highly personalized to the victims,” such as including what time the officers’ shifts ended.

With respect to the second prong, regarding whether the speaker acted with intent to terrorize or intimidate, the Court found that the threats were unconditional and the victims developed substantial concern for their safety and took measures such as separating from the police force and moving.

Finally, the Court acknowledged that rap music often contains violent imagery that is not necessarily meant to represent the singer’s part to carry through with the actions he described, and that many rappers have a “stage persona.”  However, the Court did not believe that the Constitution was meant to provide blanket protection for threats, however severe, just because they are expressed within the “gangsta’ rap” style.  Thus, the Court affirmed Knox’s conviction.

Conflict with Ninth Circuit Regarding “Specific Intent”

The Pennsylvania Supreme Court noted that some courts, such as the Ninth Circuit, have interpreted First Amendment cases to imply that the First Amendment only allows the government to penalize threatening speech uttered: “with the highest level of scienter, namely, a specific intent to intimidate or terrorize.”

The Pennsylvania Supreme Court noted that it was “not fully aligned with the Ninth Circuit’s view.”  The Court said that it is an open question whether a statute which criminalizes threatening statements delivered with a lower threshold than specific intent, such as knowledge or reckless disregard of their threatening nature, can survive First Amendment scrutiny.

Given the split between the circuits, the Knox decision may lead the way for Supreme Court to resolve whether the First Amendment protects speech if there is no specific intent on the part of the speaker to threaten or terrorize.

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