While the Supreme Court in Watts v. United States1 placed “true threats” outside of the First Amendment’s protection,2 the Court has never clearly defined what constitutes a true threat.3 In seeking to explain the term, commentators have focused on the level of intent the First Amendment requires to establish a “true threat.”4 Recently, in Commonwealth v. Knox,5 the Pennsylvania Supreme Court sustained Jamal Knox’s conviction for terroristic threats and witness intimidation by concluding that he had a specific intent to threaten two police officers with his rap lyrics.6 While searching for specific intent is a step in the right direction, Knox demonstrates that a heightened mens rea requirement is insufficient to protect innocent speech if courts do not contextualize the allegedly threatening speech. Knox joins a growing series of cases in which rap, stripped of its artistic and political meaning, is put on trial. If the true threat exeception fails to treat rap music as art or to reconsider the emphasis on objective factors, the exception risks misapplication and disparate impact in First Amendment protection.
In April 2012, Jamal Knox was charged with multiple offenses after a routine traffic stop.7 While charges against Knox were pending, he “wrote and recorded a rap song entitled[] ‘F[uc]k the Police.’”8 The song was uploaded to YouTube, and the link was posted on a public Facebook page entitled “Beaz Mooga.”9 The lyrics described killing Pittsburgh police officers and informants and specifically referred to “Officer Zeltner” and “Mr. Kosko,” two members of the Pittsburgh police force who had participated in Knox’s arrest and were scheduled to testify against him.10 An officer monitoring the Facebook page found the post and alerted Officer Kosko and Detective Zeltner.11 Knox was arrested and charged with two counts of terroristic threats and witness intimidation pursuant to sections 2706(a)(1) and 4952(a) of the Pennsylvania Crimes Code.12
Following a bench trial, the trial court found that the song constituted a true threat, rejecting Knox’s argument that the song was protected under the First Amendment.13 The trial court also rejected Knox’s argument that he lacked the requisite mens rea because he was unaware the video would be posted online.14 The Superior Court affirmed in a memorandum opinion, but did not evaluate whether the song was protected speech.15 Knox appealed.16
The Pennsylvania Supreme Court granted review to address whether the rap video “constitute[d] protected free speech or a true threat.”17 Writing for the majority, Chief Justice Saylor18 held that the song was a true threat,19 rejecting Knox’s contention that the song was “merely artistic in nature” and “never meant to be interpreted literally.”20
First, the court reviewed the doctrinal status of true threats, which the court noted had “its genesis” in Watts v. United States.21 After Watts, most courts used a variation of an objective test to determine whether a statement constituted a true threat (that is, would a reasonable listener or speaker interpret the statement as a true threat?), rather than examining the speaker’s subjective intent.22 The Supreme Court, addressing true threats again in Virginia v. Black,23 rejected Virginia’s statutory presumption that cross burning implied an intent to intimidate, but failed to clarify whether subjective intent was required.24 Even so, the Pennsylvania Supreme Court read Black to mean that “an objective, reasonable-listener standard . . . is no longer viable.”25 The court drew two general principles from its review of true threat doctrine: first, that “the Constitution allows states to criminalize threatening speech which is specifically intended to terrorize or intimidate,” and second, that “whether the speaker acted with an intent to terrorize or intimidate” requires courts to consider “contextual circumstances such as those referenced in Watts.”26
Having found that true threat doctrine requires the speaker to have “acted with an intent to terrorize or intimidate,” the court then examined the “contextual circumstances” of Knox’s song.27 The court reviewed the content of the lyrics, finding that the song “d[id] not merely address grievances about police-community relations” or “include political, social, or academic commentary.”28 Rather, the court held that the song “portray[ed] violence toward the police” and included personalized, “unambiguous threats.”29 The court highlighted that Knox not only mentioned Detective Zeltner and Officer Kosko by name, but also referenced when the officers’ shifts ended.30 Additionally, the court determined that Knox was motivated by his recent arrest and Officer Kosko’s confiscation of Knox’s cash.31 Finally, the court noted that the soundtrack included “bull horns, police sirens, and machine-gun fire ringing out over the words, ‘bustin’ heavy metal,’” elements designed to make the song more threatening.32
The court next addressed other contextual factors used in Watts and in Pennsylvania’s precedent, J.S. ex rel. H.S. v. Bethlehem Area School District,33 to determine whether “the speech convey[ed] a serious expression of an intent to inflict harm.”34 The court found that the threats were mostly unconditional and that the officers had developed “substantial concern for their safety” as a result of the song.35 The court also held that the officers had reason to believe that Knox might engage in violence because a loaded firearm had been found in Knox’s car.36 Although Knox did not send the video to the officers, the court concluded that there was no intention that the song “should not be conveyed to the police” once it had been uploaded.37
Finally, the court addressed Knox’s contention that rap songs frequently “include violent references” and “fictitious or fanciful descriptions of criminal conduct.”38 Accepting that as true, the court found Knox’s song to be “of a different nature and quality,”39 as Knox specifically called out two of the officers involved in his pending criminal case.40 Further, the court refused to insulate “an entire genre of communication” from legislative regulation under the First Amendment.41
Justice Wecht, concurring in part and dissenting in part,42 wrote to criticize the majority for failing to address “whether the First Amendment requires proof of specific intent.”43 He saw the majority as having crafted only a “partial [test] that leaves uncertainty that will serve only to complicate and protract litigation in future cases.”44 Justice Wecht, therefore, proposed a two-pronged approach that would require courts to examine first whether “reasonable recipients would consider the statement to be ‘a serious expression of intent to inflict harm’”45 and second whether the speaker “specifically intended to intimidate” or threaten the recipients.46 Justice Wecht maintained that only specific intent would suffice, finding that “[p]unishing statements that can be construed only as knowingly or recklessly uttered casts a net too wide.”47 Applying his own test, Justice Wecht nevertheless found that “Knox’s lyrics constitute true threats,” largely due to the personalization of the lyrics.48
Much of the academic and judicial debate regarding the scope of true threats has turned on the requisite mens rea to separate protected speech from true threats. The Knox court, therefore, took a significant defendant-friendly step in claiming to require a finding of specific intent. However, the Knox court’s contribution in this regard was offset by its participation in a rising trend: Knox joins a series of cases in which rap — typically gangsta rap — is put on trial, stripped of its artistic and political meaning. Although it claimed to examine Knox’s subjective intent, the court ignored the artistic and political dimensions of his song and effectively applied an objective standard by giving undue weight to the listeners’ reactions. The court also relied on the personalization of the lyrics, allowing that factor to play an inappropriately determinative role. Knox demonstrates the need for courts to reconsider the factors weighed in determining subjective intent in order for “true threats” to proscribe only speech that conveys a serious intent to threaten.49
Knox joins a growing number of cases in which rap music is assessed by judges and juries who fail to treat it as art and instead regard the lyrics as literal and autobiographical. In their article Rap on Trial, Professors Charis Kubrin and Erik Nielson argue that the phenomenon is on the rise. They point to several cases in which the defendant’s rap music was used as evidence of violent intent.50 Most significantly, they note that prosecution training manuals recommend use of rap lyrics as potentially inculpatory evidence.51 Kubrin and Nielson suggest that the trend of using music lyrics at trial appears limited to rap alone.52 Separately, Professor Andrea Dennis has observed that she has identified only one instance in which defendant-authored lyrics at issue in a case were not rap lyrics.53
Exacerbating the concern that prosecutors are singling out rap music is demonstrated bias in the perception of rap music — bias that may infect the judges and juries listening. In a recent study evaluating the effect of stereotypes of rap music on the perception of lyrics as “violent,” participants were asked to read violent lyrics from real country and folk songs.54 Some participants were told the lyrics were part of a rap song; others were told the lyrics were from a country song.55 Participants who were told the lyrics were rap rated the lyrics as more offensive, literal, and in need of regulation compared with participants who were given identical lyrics categorized as country.56 Consistent with this data, Dennis has argued that rap alone among musical genres is treated as literal expression, explaining: “courts assume that defendant-lyricists . . . do not use poetic devices or [that] the devices play a minimal role in understanding the lyrics. [Rarely] do judicial decisions explicitly acknowledge that [the] lyrics may employ metaphor, exaggeration, and other artistic devices.”57
Knox fits within this trend. Although it purported to examine Knox’s subjective intent, the Knox court’s two-step analysis — first examining the “content of the speech”58 and then the “contextual factors”59 — failed to properly situate the song. As to the “content,” the court treated Knox’s lyrics as literal, as Dennis argues courts are apt to do, and ignored factors that belied its conclusion about the apolitical and nonartistic nature of Knox’s lyrics. The court concluded that the lyrics did not “address grievances about police-community relations or generalized animosity toward the police” or “include political, social, or academic commentary.”60 And yet the title of Knox’s song was a reference to N.W.A.’s “Fuck tha Police,” which famously (or notoriously) challenged racist policing.61 The court also ignored the imagery in the music video, featuring victims of police brutality and lynching.62 Additionally, the court construed “bull horns, police sirens, and machine-gun fire” as elements designed to make the song threatening without any acknowledgement of the regular use of such sound effects in music.63 In short, the court either ignored or misconstrued the artistic and political dimensions of the song to Knox’s detriment.
Second, the court applied “contextual factors” imported from Watts and J.S. that transformed its inquiry from a purportedly subjective one into an objective one and potentially allowed for perceptions of rap as “violent” to control. In using the listeners’ reactions to Knox’s speech to discern Knox’s subjective intent,64 the court rendered its insistence on finding specific intent meaningless. In Fourth Amendment and self-defense contexts, academics have highlighted that objective tests leave room for racial bias (that is, the notion of “black-as-criminal”) to influence judicial analysis or jurors’ perceptions.65 The emphasis in Knox on the listeners’ fearful reactions to a rap song failed to cabin potential bias and vitiated the subjective prong of the inquiry.
Knox’s presumption that rap is inherently threatening was perhaps most evident in both the majority and Justice Wecht’s reliance on the personalization of the lyrics, which both opinions found set these particular rap lyrics apart. The Knox court found it significant — maybe even determinative — that the song singled out the police officers by name, indicated knowledge of when their shifts ended, and evinced a desire to kill them at home.66 However, personalization is a necessary but not a sufficient quality of a true threat.67 In other cases, courts have analyzed the detail and accuracy of the personalization to determine whether a true threat was made.68 Here, the court found it irrelevant that Knox’s reference to when the officers’ shifts ended might not even have been accurate.69 The majority and Justice Wecht’s emphasis on personalization allows it to do more work than in other true threat cases, in which personalization is merely an analytical starting point.
The Knox court’s failure to contextualize Knox’s lyrics and distinguish his intent is especially disappointing given that it initially took significant defendant-friendly steps. The court claimed to require a finding of Knox’s specific intent to threaten, a threshold few courts require.70 The court also acknowledged the importance of contextualizing the lyrics and even cited Dennis’s article critiquing courts’ analyses of rap lyrics.71 However, the court merely acknowledged Dennis’s concerns and nonetheless conducted a literal analysis. Furthermore, the contextual factors placed a substantial emphasis on the listeners’ reactions — in this case, the fear felt by the named officers. Considering listeners’ perceptions allowed the court to condone biases toward rap despite its apparent awareness that bias could be introduced in this manner.
In order to give rap lyrics their political and artistic due and limit opportunities for bias, courts should actually apply a standard of specific intent by using “contextual factors” that emphasize the artistic process. For example: Was the song performed professionally? Was there a drafting process? Is there a larger body of work? How does this song fit into that work? How personal was the alleged threat? Was such personalization accurate and detailed? Who was the intended audience? Was the work intended to be shared at all?72 The answers to inquiries such as these could be used to create a rebuttable presumption that the song was created as art and reduce the influence of a listener’s propensity to find rap threatening.
The Pennsylvania Supreme Court’s purported reluctance to grant a categorical exemption for rap73 misses the point. Knox and others whose lyrics are put on trial are merely asking for their work to be treated as art rather than literal autobiography. Of course, giving rap music its artistic and political due would still bring some songs within the true threat ambit, but it would greatly limit the scope of what constitutes a true threat. True threats are meant to be only a narrow exception to First Amendment protection. To prevent the doctrine from chilling legitimate and valuable art forms, courts must not only require a showing of intent, but also be mindful to carefully contextualize subversive or unfamiliar mediums.