Rap Video That Named Officers Not Protected Free Speech

A rap video posted to Facebook crossed the line from artistic to threatening when its lyrics described violent acts, named two Pittsburgh police officers and suggested the rappers knew where those officers lived, the Pennsylvania Supreme Court said in holding it was not protected by the First Amendment.

The state Supreme Court ruled 5-2 in Commonwealth v. Knox, No. 3 WAP 2017, which delved into the question of whether the video constituted protected free speech or a punishable threat. The ruling affirmed the state Superior Court, which determined that the video provided sufficient basis for Jamal Knox and a co-defendant to be convicted of witness intimidation and making terroristic threats.

The defendants were facing criminal charges when the rap song was posted online. The officers mentioned in the song had been expected to testify at their trials.

In his 25-page opinion, Pennsylvania Supreme Court Chief Justice Thomas G. Saylor said the court recognized rap music “often contains violent imagery” that is not meant as a threat, but that the lyrics at issue were very specific and seemed to blur the line between the defendants' artistic personas and real threats.

“Most saliently, the calling out by name of two officers involved in appellant's criminal cases who were scheduled to testify against him, and the clear expression repeated in various ways that these officers are being selectively targeted in response to prior interactions with appellant, stands in conflict with the contention that the song was meant to be understood as fiction,” Chief Justice Saylor wrote. “More generally, if this court were to rule that appellant's decision to use a stage persona and couch his threatening speech as 'gangsta rap' categorically prevented the song from being construed as an expression of genuine intent to inflict harm, we would in effect be interpreting the constitution to provide blanket protections for threats, however severe, so long as they are expressed within that musical style.”

Justice David N. Wecht issued a concurring and dissenting opinion, saying he disagreed with the majority's decision to leave open the question of whether the First Amendment requires proof of a specific intent or whether a defendant can be punished based on recklessness.

“Because it is imperative that we reconsider and modify our true threats test, we should construct a complete and final test, not a partial one that leaves uncertainty that will serve only to complicate and protract litigation in future cases,” Justice Wecht wrote, noting that the state's precedent predates guidance from the U.S. Supreme Court's decisions in Elonis v. United States, 135 S.Ct. 2001 (2015), and Virginia v. Black, 123 S.Ct. 1536 (2003).

Knox's attorney, Pittsburgh attorney Patrick Nightingale, said the ruling should provide some guidance about where the line lies when it comes to “edgy” art forms and terroristic threats. “We always knew our biggest weakness with Mr. Knox's case was the fact that the two Pittsburgh police officers were individually named in the song, and that essentially is what it came down to in the Supreme Court,” Nightingale said.

Michael Manko, a spokesman with the Allegheny County District Attorney's Office, did not return a call seeking comment.

According to Chief Justice Saylor, the defendants had been facing several charges in connection with a 2012 arrest, after they were found with drugs and a gun following a police chase. While the case was pending, the two defendants wrote and recorded a song that threatened two police officers involved in the arrest. The video was uploaded to YouTube, and was found by police on the Facebook page of Beaz Mooga, the purported alter-ego of Knox's co-defendant.

The chief justice noted that one of the officers mentioned in the song said he was shocked by the content and it was one of the reasons that officer decided to leave the police force and relocate. The other officer, according to the chief justice, was given time off and a security detail.

Chief Justice Saylor said that, under Black, courts should not use a reasonable-listener standard, but instead there needs to be an inquiry into the speaker's mental state.

The fact that the defendants had a history of making their songs public and that the video was linked to Beaz Mooga's Facebook page indicated they intended the song to be published, the chief justice wrote. He also pointed out that one of the defendants had initially been charged with possession of a loaded firearm.

However, in a footnote, Chief Justice Saylor said that, because Knox was found by the trial court to have acted intentionally regarding both the threats and witness intimidation, the court did not need to resolve whether knowledge or recklessness is sufficient to overcome First Amendment protections. “Although the song was not communicated directly to the police and a third party uploaded it to YouTube, this factor does not negate an intent on appellant's part that the song be heard by the officers,” Chief Justice Saylor concluded.

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Max Mitchell is a reporter for The Legal Intelligencer, the Philadelphia-based ALM sibling publication of Entertainment Law & Finance. He can be contacted at [email protected].