Last August, the Pennsylvania Supreme Court upheld the conviction of Jamal Knox, a rap artist, for multiple charges stemming from what the trial court found were terroristic threats based on the contents of his rap song “F**ck the Police.”  Knox petitions for Supreme Court review and if granted, the Court could not only clarify the “true threats” standard – a muddledarea of First Amendment jurisprudence – but weigh in on the culturally-sensitive and complicated relationship between rap music and free speech.

It is well-established law that true threats of violence fall outside of First Amendment protection.  What constitutes a “true threat,” however, remains far from settled.  In Watts v. United States, 304 U.S. 705 (1969), the Supreme Court held the First Amendment does not protect statements a reasonable person would regard as threatening.  In Virginia v. Black, 538 U.S. 343 (2003), the Supreme Court added a discussion of speaker intent to “true threat” jurisprudence, but fell short of establishing a subjective intent requirement.

Since Black, courts have employed divergent standards when evaluating whether a statement rises to the level of a true threat.  Some follow more of an objective standard, asking whether a reasonable person would find the statement threatening.  Others, however, follow more of a subjective standard, focusing on whether the speaker intended to communicate a threat by their statement. In fact, the law is so muddled that in some states, like Massachusetts, the federal and state courts within the same state do not apply the same standard.

Petitioner in Knox v. Pennsylvania argues his case is ripe for Supreme Court review and provides the perfect opportunity for the Court to weigh-in and clarify the “true threats” standard.  Petitioner was convicted of, among other charges, terroristic threats based on the lyrics of his song “F**k the Police.”  The song includes violent rhetoric towards Pittsburgh enforcement officers involved in his case, and names them directly.  The trial judge rejected Knox’s First Amendment claims, finding unpersuasive Knox’s argument that the lyrics reflect artistic expression and style common in rap music, and was not meant to be read literally.   The court concluded Knox intended to threaten the police officers through the content of his song and was therefore unprotected speech.  Knox was convicted and sentenced to 12 to 36 months in prison.  The Pennsylvania intermediate appellate court affirmed.  A divided Pennsylvania Supreme Court affirmed the convictions as well, butacknowledged the confusion over the “true threats” standard after Black.

The Supreme Court is likely to grant certiorari in this case to clarify the law and ensure uniformity of application.  The scope of First Amendment protections should depend on the content of the speech at issue, not the location of the speaker.  Furthermore, First Amendment jurisprudence focuses on balancing the risk of chilling speech unnecessarily with the government’s interests in ensuring public safety and order.  An objective element – i.e., assessing the harm faced by a reasonable listener – is crucial to the analysis of other unprotected categories of speech including libel, obscenity, and fighting words.  Including an objective element helps contextualize speech and prevent criminalizing objectively nonthreatening speech.

The strength of our democracy rests on the free exchange of ideas.  That right is recognized under the First Amendment and safeguarded by our courts.  The right is not absolute, however.  Speech that is intended and likely to produce imminent lawless action, for example, falls outside the purview of the First Amendment and can be restricted to ensure public safety and order.  But courts are careful to keep restrictions on speech as limited as possible. Because of the significant implications of this case on artistic expression and potential overcriminalization of speech, particularly for subversive and context-specific material, amici including artists, First Amendment scholars, and criminal defense attorneys filed briefs in support of certiorari. Those briefs, as well as the petition and response can be found at the Scotus Blog.  There is also an interesting discussion of the case by the Harvard Law Review.

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