11:44, August 23 58 0 abajournal.com

2018-08-23 11:44:05
Rap song that threatened police officers is not protected speech, Pennsylvania’s top court rules

The Pennsylvania Supreme Court has rejected a free speech claim by a rapper who threatened to kill two Pittsburgh police officers he identified by name in a video titled “F— the Police.”

The court upheld the conviction of Jamal Knox on charges of witness intimidation and terroristic threats, report the Washington Post, the Pittsburgh Post-Gazette, Pennlive.com and the Associated Press. How Appealing notes news coverage and links to the Aug. 21 opinion.

Using the name Mayhem Mal, Knox and another rapper threatened the officers who were scheduled to testify against them after arresting the pair on drug charges. The other rapper’s case was not before the court.

One of the officers said the video was one of the reasons he left the force and relocated.

Knox’s lawyer had maintained the song was artistic and there was no proof that Knox wanted the officers to hear it because someone else posted the video to YouTube. Knox was supported by several groups that filed amicus briefs, including the American Civil Liberties Union of Pennsylvania and the Defender Association of Philadelphia.

The state supreme court said the conviction was not barred by the First Amendment because it was specifically intended to terrorize or intimidate.

Some courts have disagreed on whether the speaker’s subjective intent to intimidate is relevant, according to the majority opinion by Chief Justice Thomas Saylor. Some courts judge intent using a reasonable man standard, while others require a specific intent to terrorize. Still others suggest there may be a need for a middle ground requiring a statement objectively be a threat and subjectively intended to be a threat.

Saylor said the intent requirement was satisfied because Knox had a specific intent to threaten. The lyrics expressed more than “generalized animosity toward the police,” his opinion said. They don’t include political, social or academic commentary, and they are not satirical or ironic. Rather, the lyrics “are both threatening and highly personalized to the victims,” he said.

Both officers are named, and Knox states in the song that the lyrics are for them. In one part of the rap song, Knox said, “I’ma jam this rusty knife all in his guts and chop his feet,” and, “Well your shift over at 3 and I’m gonna f— up where you sleep.” The song also suggests the rappers know the identity of a confidential informant and a have a plan to murder an informant with a Glock handgun.

If the court found First Amendment protection for the video, Saylor said, “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.”

A concurring and dissenting opinion agreed that Knox intended to communicate a true threat. But the opinion said the majority should have specifically ruled whether proof of specific intent is the only way to satisfy the First Amendment.

The U.S. Supreme Court had ruled in a 2015 case, Elonis v. United States, that a mens rea above negligence is required for conviction under a federal law barring interstate transmission of threats.

The concurrence in the Knox case said the Pennsylvania Supreme Court majority should have considered whether speech could be punished based on proof of only a lesser mens rea such as recklessness or knowledge. The opinion said that lower standard was not sufficient.

The concurrence would have required a two-part test. First, there must be a finding that a reasonable person would find the threatening statements to be a serious expression of intent to inflict harm. Second, there must be a finding of a specific intent to threaten or intimidate, the opinion said.

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