Free Speech

Rap Song = Punishable True Threat, Says Pennsylvania Supreme Court

The court stressed that the song threated particular police officers by name.

|The Volokh Conspiracy |


The opinion (Commonwealth v. Knox) is long, and so are the underlying lyrics; you can read it in full [link fixed]. But here is a quick summary of the facts:

In April 2012, Pittsburgh Police Officer Michael Kosko initiated a routine traffic stop of a vehicle driven by Appellant. Appellant's co-defendant, Rashee Beasley, was in the front passenger seat. While Officer Kosko was questioning Appellant, the latter sped away, ultimately crashing his vehicle. He and Beasley fled on foot, but were quickly apprehended and placed under arrest. The police found fifteen stamp bags containing heroin and a large sum of cash on Appellant's person, as well as a loaded, stolen firearm on the driver's-side floor of the vehicle. At the scene of the arrest, Appellant gave the police a false name. When Detective Daniel Zeltner, who was familiar with both Appellant and Beasley, arrived, he informed the officers that Appellant's real name was Jamal Knox.

Based on these events, Appellant and Beasley were charged with a number of offenses. Officer Kosko and Detective Zeltner, both of Zone 5 of the Pittsburgh Police Department, were scheduled to testify against them in connection with the charges.

While the charges were pending, Appellant and Beasley wrote and recorded a rap song entitled, "F–k the Police," which was put on video with still photos of Appellant and Beasley displayed in a montage. In the photos, the two are looking into the camera and motioning as if firing weapons. The video was uploaded to YouTube by a third party, and the YouTube link was placed on a publicly-viewable Facebook page entitled "Beaz Mooga," which the trial evidence strongly suggested belonged to Beasley.

The song's lyrics express hatred toward the Pittsburgh police. As well, they contain descriptions of killing police informants and police officers. In this latter regard, the lyrics refer to Officer Kosko and Detective Zeltner by name. They suggest Appellant and Beasley know when those officers' shifts end and that the crimes depicted in the song may occur in the officers' homes ("where you sleep"). The lyrics also contain a reference to Richard Poplawski, who several years earlier had strapped himself with weapons and murdered three Pittsburgh police officers. Finally, the song includes background sounds of gunfire and police sirens….

The court concluded that, under the Supreme Court's Virginia v. Black decision, statements are constitutionally unprotected "true threats" if they are "specifically intended to terrorize or intimidate," in light of their content and the context in which they were made. (The court concluded that "[I]t remains an open question whether a statute which criminalizes threatening statements spoken with a lower scienter threshold, such as knowledge or reckless disregard of their threatening nature, can survive First Amendment scrutiny"; a two-Justice partial concurrence and partial dissent would have resolved that question in favor of finding that specific intent to threaten was indeed required.) The trial court below found that Knox's statements were indeed so intended, and the Pennsylvania Supreme Court agreed that this made sense in light of their content and context. Here is an excerpt of what I think is the key legal analysis:

We first review the content of the speech itself, beginning with the lyrics. They 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.

Rather, they primarily portray violence toward the police, ostensibly due to the officers' interference with Appellants' activities. In this regard, they include unambiguous threats with statements such as, "Let's kill these cops cuz they don't do us no good" and "that whole department can get it." They reference "soldiers" that will "f–k over" the police, a plan to make false emergency calls and "bust[ ] heavy metal" toward the officers who respond to the call, and a desire to "jam this rusty knife all in [the officer's] guts."

The lyrics also appear to express a consciousness that they step beyond the realm of fantasy or fiction in that they indicate Appellant was advised by one of his elders "not to put this on CD," but he is ignoring such advice so that the whole city will "believe" him. Similarly, Appellant vows that the activities described will be "real" once a certain named individual returns from military service.

These aspects of the song tend to detract from any claim that Appellant's words were only meant to be understood as an artistic expression of frustration. Most notably along these lines, Appellant mentions Detective Zeltner and Officer Kosko by name, stating that the lyrics are "for" them. Appellant proceeds to describe in graphic terms how he intends to kill those officers. In this way, the lyrics are both threatening and highly personalized to the victims.

Such personalization occurs, not only through use the officers' names, but via other facets of the lyrics. They reference Appellant's purported knowledge of when the officers' shifts end and, in light of such knowledge, that Appellant will "f–k up where you sleep."

Additionally, the threats are directed at the officers based on the complaint, tied to interactions which had recently taken place between them and Appellant, that the police had been "knockin' my riches"—as Officer Kosko did by confiscating cash from Appellant upon his arrest—and vowing that the police "won't keep" doing so. See [trial transcri[t] (reflecting Officer Spangler's testimony that "knocking riches" is a slang phrase which refers to a police officer confiscating cash during an arrest where drugs are involved). Along these same lines, they refer to the police having "tak[en] money away from" Beasley "and all my s–t away from me." Such harm to Appellant's personal wealth, and the officers' interference with his drug-selling activities, together with the upcoming criminal proceedings at which the latter were scheduled to testify against Appellant, are stated in the lyrics to provide the primary motivation for Appellant's desire to exact violent retribution.

Finally, the lyrics suggest a knowledge of the identity of the officers' confidential informants and a plan to murder at least one such informant with a Glock.

The words themselves are not the only component of Appellant's expressive conduct which tends to make the song threatening. The sound track includes bull horns, police sirens, and machine-gun fire ringing out over the words, "bustin' heavy metal." …

[W]e also consider contextual factors in assessing whether the speech conveys a serious expression of an intent to inflict harm. These factors include such items as whether the threat was conditional, whether it was communicated directly to the victim, whether the victim had reason to believe the speaker had a propensity to engage in violence, and how the listeners reacted to the speech.

Here, unlike in Watts v. United States, the threats are mostly unconditional. As noted, moreover, Officer Spangler immediately notified other police personnel, reflecting that he did not see it as mere satire or social commentary. The victims developed substantial concern for their safety and took measures—such as separating from the police force earlier than planned, moving to a new residence, or obtaining a security detail—to avoid becoming victims of violence. Also, the police department allocated additional resources to Zone 5 to prevent the threatened violence from occurring.

Separately, 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. As the Superior Court observed, Appellant's and Beasley's prior course of conduct suggested they either intended for the song to be published or knew publication was inevitable. Further, after the song was uploaded to YouTube, it was linked to the "Beaz Mooga" Facebook page. Unlike in J.S. [a Pennsylvania Supreme Court] precedent, there was no suggestion the song was merely in jest or that it should not be conveyed to the police. For its part, the trial court, which heard all the testimony first-hand, found that Appellant intended for it eventually to reach the officers.

As for whether the officers had reason to believe Appellant might engage in violence, it is relevant that they were aware a loaded firearm had been found near Appellant's feet in the automobile he was driving. Although Appellant was ultimately acquitted of the firearm charges stemming from the weapon's presence in the car, the video was posted to the Internet and seen by the officers well before the trial occurred.

We acknowledge that, as Appellant and his amici argue, rap music often contains violent imagery that is not necessarily meant to represent an intention on the singer's part to carry through with the actions described. This follows from the fact that music is a form of art and "[a]rtists frequently adopt mythical or real-life characters as alter egos or fictional personas."

We do not overlook the unique history and social environment from which rap arose, the fact that rap artists (like many other artists) may adopt a stage persona that is distinct from who they are as an individual, or the fact that musical works of various types may include violent references, fictitious or fanciful descriptions of criminal conduct, boasting, exaggeration, and expressions of hatred, bitterness, or a desire for revenge. [Footnote: Nor do we discount that First Amendment freedoms need "breathing space to survive," as amici forcefully argue.] In many instances, lyrics along such lines cannot reasonably be understood as a sincere expression of the singer's intent to engage in real-world violence.

With that said, the rap song here is of a different nature and quality, as detailed above. Even if we accept, arguendo, that most "gangsta rap" works solely constitute "art, poetry, and fantasy," the content and surrounding circumstances of the song in issue do not demonstrate an adherence to the distinction between singer and stage persona sufficient to ameliorate its threatening nature. Although some attributes of the song arguably reflect the difference—such as the use of Appellant's stage name "Mayhem Mal," references to an apparently fanciful "ghetto superstar committee," and sophisticated production effects—these features are contradicted by the many factors already discussed tending to suggest the singers are in earnest.

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, stand in conflict with the contention that the song was meant to be understood as fiction.

All of this leads us to conclude that the trial court's finding as to Appellant's intent was supported by competent evidence.

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 a genuine intent to inflict harm, we would in effect be interpreting the Constitution to provide blanket protection for threats, however severe, so long as they are expressed within that musical style. We are not aware of any First Amendment doctrine that insulates an entire genre of communication from a legislative determination that certain types of harms should be regulated in the interest of public safety, health, and welfare….

Thanks to Benjamin Picker for the pointer.