Photo by Zachary Nelson on Unsplash
By Britteny Leyva
“You never thought that hip-hop would take it this far[.]”[1]
On August 21, 2018, the Pennsylvania Supreme Court affirmed Jamal Knox’s two count conviction—one for terroristic threats and the other for witness intimidation—for his creation and participation in a song titled “F—k the Police.”[2] Looking to Supreme Court First Amendment precedent, Pennsylvania’s highest court reasoned that this song was vastly different from other hip-hop songs, pointing to the specific threats to police officers arresting Knox for a drug-related incident as justification for affirming the convictions.[3] Not only are the constitutional implications of this decision troubling, but the Pennsylvania Supreme Court improperly applied Supreme Court precedent when it found specific intent to threaten the officers in Knox’s rap lyrics.[4]The lyrics include:
“This first verse is for Officer Zeltner and all you fed force bitches/And Mr. Kosko, you can suck my dick you keep on knocking my riches/You want beef, well cracker I’m wit it, that whole department can get it/All these soldiers in my committee gonna fuck over you bitches/Fuck the, fuck the police, bitch, I said it loud.
The fuckin’ city can’t stop me/Y’all gonna need Jesus to bring me down/ And he ain’t fuckin’ wit you dirty devils/We makin’ prank calls, as soon as you bitches come we bustin’ heavy metal.
So now they gonna chase me through these streets/And I’ma jam this rusty knife all in his guts and chop his feet/You taking money away from Beaz and all my shit away from me/Well your shift over at three and I’m gonna fuck up where you sleep.
Hello Breezos got you watching my moves and talkin’ ‘bout me to your partner/I’m watchin’ you too, bitch I see better when it’s darker/Highland Park gone be Jurassic Park, keep fuckin’ wit me/Hey yo Beaz call Dre and Sweet and get them two 23’s/It’s Mayhem. (Chorus repeats)”[5]
The Supreme Court’s First Amendment exception jurisprudence encompasses obscenity, fighting words, defamation, and child pornography.[6] The theory behind these exceptions is that they are of little social value and benefit, and protecting order and morality, a social interest, clearly outweighs protection under the First Amendment.[7] The “true threats” doctrine, falling under the fighting words exception, includes statements in which the speaker means to communicate a serious expression of intent to commit acts of unlawful violence against a particular individual or group of individuals.[8]
The Supreme Court further explained the “true threat” doctrine in Virginia v. Black, in which the Court considered whether Virginia could ban cross burning carried out with the intent to intimidate.[9] The Court first looked at the history of cross burning, noting its use by the Klu Klux Klan to intimidate African Americans throughout history, and concluded that, regardless of its intended message, cross burning is a symbol of hate.[10] Similarly, prior to Black, in R.A.V. v. City of St. Paul, teenagers were arrested and charged for burning a cross on a home owned by a black family.[11] The Supreme Court found the statute regulating speech—in this case, when an individual knows, or has reason to know, that the burning of a cross arouses anger about race, gender, and other topics—unconstitutional because it targeted the content of the speech.[12] More specifically, the Court noted that the government can proscribe an action, but it cannot express hostility or favoritism toward the content of the conveyed message.[13] That means that if the government decides to proscribe libel, it cannot proscribe the content of the libel (i.e. only libel directed at the government, for example).[14]
The distinction between Blackand R.A.V., both cross burning cases yielding different outcomes, is that the Virginia legislature in R.A.V.proscribed cross-burning if an individual knew it would arouse anger, alarm or resentment in others on the basis of race, color, creed, religion or gender, whereas the legislature in Blackproscribed cross-burning with the intent to intimidate.[15] Additionally, the Court in Blackclarified that R.A.V did not hold that the First Amendment prohibits all forms of content-based discrimination within a proscribable area of speech, and is permissible when the basis for it consists entirely of the reason why an entire class of speech is proscribable in the first place.[16] The Court then reasoned that the Virginia statute did not just target cross-burning on the basis of race, color, creed, religion, or gender but only had a scienter requirement (i.e., an individual had to have an intent to intimidate).[17] The Supreme Court further explained this scienter requirement in Elonis v. United States, in which Anthony Douglas Elonis was arrested after using Facebook to post violent lyrics about his wife, co-workers, kindergarten students, and law enforcement.[18] The Court, while avoiding the broader First Amendment question, found that if a statute is silent on a mental state, one will be read into the statute because criminals must be blameworthy in mind before they can be found guilty.[19]
The Pennsylvania Supreme Court flew in the face of Supreme Court precedent when it convicted Knox of terroristic threats and witness intimidation based upon the content of his hip-hop song. Particularly, Pennsylvania’s highest court misconstrued Supreme Court case law when it defended the conviction, citing precedent specifically tailored to the special need to protect individuals from fear for the U.S. president’s safety.[20] The supposed threats of violence in Knox’s case were not directed toward the president at all and therefore did not require any of the special force[21] or scrutiny emphasized in Watts.[22] Additionally, the Court in Watts v. United States expressly held that political hyperboles, as the song clearly was in Knox, are not always true threats.[23] One political hyperbole considered by the Supreme Court, cross burning, was considered a true threat because of its violent history against African Americans.[24] The “true threat” doctrine applies to serious specific threats on individuals; however, Knox’s hip-hop lyrics refer to his “committee” when conveying his frustration on the officers.[25] In fact, several hip-hop songs refer to “committees” on city streets, indicating a common use in hip-hop lyrics.[26] Looking at N.W.A’s “F—k tha Police,” a song that came out almost twenty years ago, one of the several artists on the record asserts similar threats in the song, conveying in the song that the artist will “[b]eat a Police out of shape” and that “Ice Cube will swarm on any . . . in a blue uniform,” but the Pennsylvania Supreme Court seemed to have ignored this notable song.[27]
The Supreme Court granted certiorari to hear the case, and several hip-hop artists, notably Chance the Rapper and Killer Mike, filed an amicus brief arguing against Knox’s conviction.[28] The brief argues that, should the Court hold that these lyrics constitute threats, rap lyrics that artists use in songs could be taken out of context and subject to prosecution.[29] The brief further argues that the Pennsylvania Court found Knox’s song “of a different nature,” yet N.W.A wrote very similar songs targeting similar individuals twenty years prior.[30] Killer Mike, Chance the Rapper, and others writing the brief argue that the Court should clarify that the “true threat” standard should require more than mere intent; specifically, it argues that the Court should consider hip-hop’s history, especially how prosecutors often use rap lyrics in evidence to prove true threats.[31]
The ramifications of this case are insurmountable, not only because the case could affect how artists in the industry form lyrics, but songs might also soon be the target of litigation.[32] Hip-hop has a deep cultural history, especially in the context of exposing racial inequality and social injustice.[33] Hip-hop often serves as a lesson to the masses, often informing the general public about crime, punishment, imprisonment, and inequitable prison sentences in the black community.[34] The Court not only needs to clarify the true threat standard in First Amendment cases, but it must also be cognizant of hip-hop’s history when clarifying whether the government has the ability to limit speech when dealing with true threats in online activity.
[1]Brief for Render, et al. as Amici Curiae Supporting Petitioners, Knox v. Pennsylvania, (No. 18–949) (citing NOTORIOUS B.I.G.,Juicy, on READY TO DIE (Bad Boy & Arista Records 1994)).
[2] Id.at 1147 (finding the lyrics threating two police officers as intimidating).
[3] Id.at 1158 (finding that the threats in the song were unambiguous, referencing the detectives by name).
[4] Id.
[5] Commonwealth v. Knox, 190 A.3d 1146, 1147 (Pa. 2018).
[6] See Virginia v. Black, 538 U.S. 343 (2002); R.A.V. v. City of St. Paul, 505 U.S. 377 (1992); New York Times Co. v. Sullivan, 376 U.S. 254 (1964); Roth v. United States, 354 U.S. 476 (1957); Chaplinsky v. New Hampshire, 315 U.S. 571 (1942).
[7] Chaplinsky, 315 U.S. at 572.
[8] Black, 538 U.S. at 359.
[9] Black, 538 U.S. at 343.
[10] Id.at 357.
[11] 505 U.S. 377, 379 (1992)
[12] See id.at 381.
[13] See id.at 386.
[14] Id.at 384.
[15]R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 380 (1992); Virginia v. Black, 538 U.S. 343, 344 (2003).
[16] Black, 538 U.S. at 345 (giving an example of why obscenity that is most offensive is proscribable, which often involves “the most lascivious displays of sexual activity”).
[17] Id.at 352 (reasoning that, as per the statute, it does not matter whether an individual burns a cross with an intent to intimidate because of the victim’s race, gender, or religion).
[18]135 S. Ct. 2001, 2002 (2015).
[19] Id.at 2010. Elonis’ conviction was reversed because of the jury instructions, which prompted jurors to discern whether a reasonable person would feel threatened by the lyrics. Id. at 2012; see alsoMorisette v. United States, 342 U.S. 246, 252 (1952) (holding that the Court will not regard an omission of criminal intent as completely dispensing the statute it entirely).
[20] See Commonwealth v. Knox, 190 A.3d 1146, 1155 (Pa. 2018) (citing Watts v. United States, 394 U.S. 705, 707 (1969)).
[21]Watts, 394 U.S. at 707 (noting that a statute making it a crime to threaten the president was facially valid in light of the overwhelming interest in protecting the president).
[22]Commonwealth v. Knox, 190 A.3d 1146, 1147 (Pa. 2018) (threatening the officers, but referring to a committee while doing so).
[23]See Watts v. United States, 394 U.S. 705, 708 (1969).
[24]See Virginia v. Black, 538 U.S. 343, 352 (2003).
[25]Commonwealth v. Knox, 190 A.3d 1146, 1149 (Pa. 2018) (“You want beef, well cracker I’m wit it, that whole department can get it/All these soldiers in my committee gonna f—k over you b—s”).
[26]See De La Soul, Cee Lo Green, Held down, on AOI: Bionix (2001).
[27]N.W.A.,F—k tha Police, on Straigt outta Compton (Priority & Ruthless 1988).
[28] See Brief for Render, et al. as Amici Curiae Supporting Petitioners, Knox v. Pennsylvania 190 A.3d 1146 (Pa. 2018), cert. granted, 87 U.S.L.W. 3313 (U.S. Feb. 14, 2019) (No. 18–949).
[29] Id.at 16.
[30] Id.at 18.
[31]Brief for Render, et al. as Amici Curiae Supporting Petitioners, Knox v. Pennsylvania, at 20 (No. 18–949).
[32] Travis M. Andrews, Killer Mike, Chance the Rapper and Others File Supreme Court Brief to Educate Justices about Rap Music, Wash. Post (Mar. 4, 2019), https://www.washingtonpost.com/arts-entertainment/2019/03/06/killer-mike-chance-rapper-others-file-supreme-court-brief-educate-justices-about-rap-music/?utm_term=.b063bb258010.
[33]Andre Douglas Pond Cummings, Thug Life: Hip-Hop’s Curious Relationship with Criminal Justice, 50 Santa Clara L. Rev. 515, 516 (2010).
[34] Id.at 529.