Rapper Jamal Knox and the First Amendment

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Earlier this year, Pennsylvania prisoner Jamal Knox had turned to his last resort: the U.S. Supreme Court. He wanted his 2014 Pennsylvania conviction overturned on grounds that in convicting him the Commonwealth had violated his First Amendment Rights. His transgression? Song lyrics.

Knox, who performs under the pseudonym Mayhem Mal, wrote a song entitled “F*** The Police.” Released in 2012 while drug charges from a traffic stop and weapons confiscation were pending, the single was not distributed by any label nor published by any known publishing house or streaming service. Rather, a friend posted the song to YouTube and Facebook. After naming police officers with which Knox took issue, the offending lyrics read, in part, as follows:

“So now they gonna chase me through these streets / And I’ma jam this rusty knife all in his guts and chop his feet…

Well your shift over at three and I’m gonna f*** you up where you sleep. “[L]et’s kill these cops ’cause they don’t do us no good.”

I keep a forty on my waist, that’ll wet you like a mop… / Clip filled to the tippy top wit some cop killas…

F*** the police, they bring us no peace / That’s why I keep my heat when I’m roamin’ through these streets.

Cause if you jump out it’s gonna be a dump out / I got my Glock and best believe that dog gonna pull that pump out / And I’m hittin’ ya chest, don’t tell me stop cuz I’m resisting arrest.

Based on the content of the song, Knox was further charged on counts of terroristic threats and witness intimidation. At trial, prosecutors presented the lyrics, and officers testified about their reactions thereto – sayingthey felt threatened, targeted, and they feared the song was retribution for the arrest.

At close of trial, it was clear the song was the sole basis for the charges.Knox argued that the song was protected speech, and any conviction would be a violation of his First Amendment rights. He asserted that the song was art, and the lyrics were constitutionally protected speech. The court rejected these claims; he was found guilty on both charges.

The court found that Knox had “intended to intimidate the officers so as to obstruct the administration of criminal justice...” As for the First Amendment, the court held the song amounted to a “true threat directed to the victims”; and was therefore not protected. Later, a higher court explained that the Commonwealth had established that Knox acted at least knowingly with respect to each element of each offense. This, they said, was sufficient to show that Knox intended the “threats” to be communicated and heard by the other parties. Because trial evidence presented a prior course of conduct in which Knox made rap videos which would then be published online, the Superior Court concluded there was sufficient evidence to support a finding that Knox was aware that the video in question would be posted to a publicly-viewable Internet site and seen by the police.

“A majority of courts have held that the standard is objective and requires a showing that a ‘reasonable person’ would regard the statement as a sincere threat of violence. Other courts have held that the standard is subjective and assess only whether the speaker intended to communicate such a threat.

“[The] Court granted certiorari to address this issue in Elonis v. United States[…] but did not resolve the split, prompting concern that ‘the Court has compounded—not clarified—the confusion’.”

Previously, a divided Pennsylvania Supreme Court acknowledged this split before deciding a statement can be a true threat based solely on the speaker’s subjectiveintent. In doing so, the court affirmed convictions for both witness intimidation and terroristic threats based on lyrics to a song that Elonis, a self-proclaimed aspiring rap artist, published online. The court found it irrelevant whether a reasonable person would find the song threatening in context. Rather, the question decided was whether, to establish that a statement is a true threat unprotected by the First Amendment, the government must show that a “reasonable person” would regard the statement as a sincere threat of violence, or whether it is enough to show only the speaker’s subjective intent to threaten. 

His conviction twice upheld, Knox asked the United States Supreme Court to determine

“whether, to establish that a statement is a true threat unprotected by the First Amendment, the government must show that a ‘reasonable person’ would regard the statement as a sincere threat of violence, or whether it is enough to show only the speaker’s subjective intent to threaten.”

Art, and rap in particular, is no stranger to the elasticity of the First Amendment. In a 1990 case that captured national headlines, Broward County sheriff Nick Navarro sought to arrest and prosecute store owners that sold 2 Live Crew’s 1989 release, As Nasty As They Wanna Be, saying he considered the album obscene. It featured tracks laced with profanity and sexually charged lyrics. Skyywalker Record, the label that released the album, and members of the group filed suit in federal court, seeking declaratory judgment that the album was not obscene and that the arrests were “an unconstitutional prior restraint on expression.” Using what was called the Miller Test, the court declared the record obscene. Skyywalker, et al, then appealed and the 11th Circuit reversed the underlying decision. That court explained the plaintiffs demonstrated that the album contained “serious artistic value” while the Sherriff failed to offer any evidence to the contrary, save for playing the song aloud in court. 

Similarly, in 1992’s Waller v. Osbourne, plaintiffs alleged that Ozzy Osbourne’s lyrics used “inciteful speech.” The appellate court ruled in Ozzy’s favor: he was liable only if his intent was to cause the ensuing injury. Plaintiff’s writ seeking review by the Supreme Court was refused.

In Davidson v. Time Warner, a case was filed by attorneys for the family of a slain Texas state trooper. The trooper was killed by a man who was listening to Tupac Shakur’s2Pacalypse Now. In their complaint, plaintiffs contended that album’s lyrics had caused the gunman to kill the trooper and, as such, its producer Time Warner was legally responsible for his death. Citing 1969’s Brandenburg v. Ohio, they argued that the music “constituted incitement to imminent lawless action.”

A Texas district court disagreed, ruling the album was protected speech. Regarding the allegation of the album inciting imminent lawless action, the court interestingly explained, they could not find intent on behalf of Shakur. 

“At worst, Shakur's intent was to cause violence some time afterthe listener considered Shakur's message. The First Amendment protects such advocacy.”

So, how will Knox’s case pan out? And what does the Supreme Court do to settle this issue? Jamal Knox is not the only one curious to know. 

In a petition seeking permission to file a brief to add context and perspective to Knox’s, rappers Killer Mike, Chance the Rapper, Fat Joe, Meek Mill, Yo Gotti and 21 Savage came to the defense of Knox and the First Amendment. In support of Jamal Knox’s cause, as by the New York Times, the famous and commercially successful artists sought to educate the Court on the history of rap and to highlight unequal applications of the First Amendment across genres. The purpose of the brief, it reads, was: 

“to put rap music…a heavily stigmatized form of expression associated with negative stereotypes and often subject to misinterpretation, in the context of the history and conventions of the genre.”

The Knox case, they say, is but another display of judicial inequality. Killer Mike cites “outlaw country” as a genre, akin to rap/hip-hop, whose itinerant theme is the proverbial thumb in the eye of the law. Most famously, Johnny Cash’s legendary hit in which he “shot a man I Reno, just to watch him die” is referenced as an outright illegality, memorialized in the lyric of a fiction: a telling of a tale that harkens to the days of the old West, the lawlessness that pervaded, and the romance and novelty modern artists, writers and listeners found, and still find, in it. This, they say, is no different than the mythical characters and legends created by modern rap, but with one color-coded difference: the artists are predominantly black. In an interview with the New York Times, Killer Mike made the parallel:

“Outlaw country music is given much more poetic license than gangster rap, and I listen to both. And I can tell you that the lyrics are dark and brutal when Johnny Cash describes shooting a man in Reno just to watch him die and when Ice Cube rapped about a drive-by shooting early in his career…It’s no different from stop and frisk…It’s another form of racial profiling."

The brief filed in support addressed Knox’s song directly, stating: 

“[T]his is a work of poetry. It is told from the perspective of two invented characters in the style of rap music, which is (in)famous for its exaggerated, sometimes violent rhetoric, and which uses language in a variety of complex ways. It is not intended to be taken literally, something that a reasonable listener with even a casual knowledge of rap would understand.” 

Further to the point, it cites Ice-T’s memoir to illustrate their point. “If you believe that I’m a cop killer,” he wrote, “you believe David Bowie is an astronaut.”

Killer Mike’s point is simple: why is rap treated any differently than any other genre? 

This inequality, they say, has led to a disparity in how the lyrics of the genres are treated: one with nostalgic fanfare for the wild west of the 19thcentury that saw the close of the Civil War and the growth of the nation come to bear with lawlessness, bloodshed, disregard for authority, seemingly random acts of violence (and romantic portrayals thereof). Meanwhile, another that saw the stories of urban decay, poverty, and the same lawlessness, bloodshed, and disregard for authority portrayed not as romanticized ideals of Freedom (capital F) or “American Exceptionalism,” but rather thuggishness, symptomatic of what was wrong in society. 

It remains to be seen what, if anything, the Supreme Court will do about to further delineate the boundaries of the First Amendment. While the Commonwealth courts are satisfied with application of Pennsylvania law as it related to criminal charges, the Supreme Court need not be concerned with that but rather if the Commonwealth’s law itself runs afoul of the First Amendment. The only thing for certain is that clarity is needed. 

On April 15th, the Supreme Court declined to grant certiori. Ultimately, the Court’s decision to pass on the opportunity to give clarity to the issue means the lower courts will be left to apply, ad hoc, the standard they deem appropriate. For the artist, the uncertainty remains. 

 

The author would like to thank Josh Scollins for assisting in proofreading and structuring this piece.