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Pennsylvania v. Knox

Closed Mixed Outcome

Key Details

  • Mode of Expression
    Audio / Visual Broadcasting, Public Speech
  • Date of Decision
    August 21, 2018
  • Outcome
    Affirmed Lower Court
  • Case Number
    [J-83-2017]
  • Region & Country
    United States, North America
  • Judicial Body
    Appellate Court
  • Type of Law
    Constitutional Law
  • Themes
    Artistic Expression, Defamation / Reputation

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Case Analysis

Case Summary and Outcome

The Supreme Court of Pennsylvania found that Jamal Knox’s speech in a music video, which directly named and targeted individual police officers, was not protected under the First Amendment. Knox posted the video after being arrested on drug charges to express his “hatred” of the Pittsburgh Police and his wish to kill police and their informants. After the police discovered his video, Knox was charged with making terroristic threats. The Court acknowledged that art can be shocking and rap is often a form of venting on grievances, but that the First Amendment is not absolute. Taking into consideration the contextual circumstances, the Supreme Court found that the lyrics constituted “true threats” and therefore, Knox could be held criminally liable without violating the First Amendment.


Facts

In April 2012, Pittsburgh Police Officer Kosko conducted a traffic stop on Jamal Knox and Rashee Beasley. After a failed attempt to flee, Knox and Beasley (hereafter, “the Defendants”) were apprehended and placed under arrest. The police found a large amount of heroin and cash in the vehicle, as well as, a loaded firearm that had been reported stolen. Detective Zeltner arrived at the scene and identified the two men despite Knox’s attempt to provide the arresting officer with a fake name. Officer Kosko and Detective Zeltner were called to testify against the Defendants in a criminal case.

While the charges resulting from the traffic stop were pending, a Youtube account “Beaz Mooga” (alleged to belong to Beasley) posted a music video for a song called “F–k the Police” featuring both Defendants. The lyrics included “hatred” of the Pittsburgh Police and descriptions of killing police and their informants. The lyrics also called out the aforementioned officers by name, alluded to the fact that the Defendants knew the officer’s schedules and where the officers lived. For example, Mayhem Mal, i.e., Jamal Knox in Verse 1 rapped:

This first verse is for Officer Zeltner and all you fed force bitches/And Mr. Kosko, you can suck my dick you keep on knocking my riches/. . . So now they gonna chase me through these streets/And I’ma jam this rusty knife all in his guts and chop his feet/You taking money away from Beaz and all my shit away from me/Well your shift over at three and I’m gonna fuck up where you sleep. [full lyrics can be found in the attached decision]

When the police discovered the video, they charged the Defendants with making terroristic threats under Section 2706(a)(1) of the Pennsylvania Crimes Code, and witness intimidation pursuant to Section 4952(a) of the Pennsylvania Crimes Code. Officer Kosko testified that the video was shocking and was one of the reasons why he left the Pittsburgh Police. Detective Zeltner stated that the video made him fear for the safety of himself, his family, and fellow officers. Detective Zeltner was given time off and a security detail. The music video was the sole conduct in which the charges were brought. Jamal Knox asserted the defense that the lyrics were protected speech and a conviction would violate his First Amendment rights. The criminal court rejected the defense and found Knox guilty on all counts.

Jamal Knox appealed the decision arguing in part that the lyrics in the video were constitutionally protected speech. Furthermore, he argues that he never intended the video to be uploaded, he never meant to threaten anyone, and that the lyrics were solely artistic expression. The lower court found that the lyrics constituted a type of speech (“true threats directed to the victims”) that is not protected by the First Amendment. Knox ultimately appealed the decision to the Pennsylvania Supreme Court.


Decision Overview

The Pensylvania Supreme Court reviewed the appeal concerning if the music video “constitutes protected free speech or a true threat punishable by criminal sanction.”

The Court acknowledges that art has “has the power to shock.” The Court cites to an amicus brief provided by the ACLU of Pennsylvania which argues that “sometimes” rap is “saturated with outrageous boasts and violent metaphors.” Furthermore, rap  is “a means for those who disagree with the status quo to vent their frustrations, thereby lowering the likelihood they will engage in physical violence.” The Thomas Jefferson Center for the Protection of Free Expression and the Marion B. Brechner First Amendment Project add that violence is protected in movies and video games, and that, rap should be afforded those same First Amendment protections. The Court turns to determine if the “true threat doctrine” is met.

The First Amendment is not an absolute right and can be limited. A speaker can be held criminally or civilly liable for certain types of speech. When a speaker threatens unlawful violence, the speaker can be subject to criminal sanction. However, these threats must be “true threats” not hyperboles. The Court cites to Watts which stated that a criminal “conviction could only be upheld if his words conveyed an actual threat as opposed to political hyperbole.” The Court can look at the entire context of the supposed threat to determine if it a true threat.  In the cases following Watts, more objective tests over a speaker subjective test emerged. The Court acknowledges that the U.S. Constitution permits “states to criminalize threatening speech which is specifically intended to terrorize or intimidate.” The Court further acknowledges that “evidentiary weight should be given to contextual circumstances”  to determine if the speaker acted with the necessary intent.

The Court first turns to the content of the speech. The Court argues that their primary focus is violence towards specific police officers. The Court argues that the lyrics are too specific and are not “do not merely address grievances about police-community relations or generalized animosity toward the police.” The Court quotes the lyrics which discuss making fake 9-1-1 calls to kill the police officers that respond. The Court is concerned that the Officers are called by name and that the lyrics allude to the fact that Defendants knew when they ended shifts. The Court argues that this specificity contributes to it being a true threat. The Court states the lyrics directly mention the original traffic stop by stating that “knockin’ my riches” is in direct response to Officer Kosko confiscating cash. Finally, the Court states 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.”

Turning to contextual factors such as whehter 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. ” The Court argues that the threats are mostly unconditional and that the police took protective measures in response to hearing the lyrics. While the song was not communicated directly to officers,  the Defendants’ prior conduct suggests that they knew it was uploaded or “knew publication [to a public platform] was inevitable.”  The Court also cites the fact that the Defendant was originally found in possession of a firearm as reasonable means for the Officers to believe that the Defendant might engage in violence.

The Court attempts to distinguish these lyrics from other lyrics that may also express violence. The Court notes that lyrics that express violence can be protected by the First Amendment, rather it is the real or actual threats in the lyrics in question that are not protected. The Court refuses the notion that expression of genuine intent to inflict harm is protected by the First Amendment due to how it is presented.

The Court affirms the ruling of the Superior Court. That the lyrics in the music video are not speech protected by the First Amendment and that Jamal Knox can be held criminally liable for the lyrics.


Decision Direction

Quick Info

Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.

Mixed Outcome

This case aligns with other First Amendment case law regarding criminal threats so it could be considered neutral. However, there is very well an argument that this type of speech should be protected. There is no denying that the lyrics are violent, but the conviction was based solely on the lyrics and no other conduct. The Officers are named in verse 1, subsection 1; however, it can be argued that the direct threats are not made until verse 1, subsection 3.  It could be argued that these threats are too vague, as it is unclear whose feet they are gonna cut off and whose (if any) shift actually ends at three. The fact that the speech may be violent or alarming is not enough to be considered a criminal threat. It is important to protect First Amendment rights even if the speech is unpopular or the appellant is arguably unsympathetic.

Global Perspective

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Global Perspective demonstrates how the court’s decision was influenced by standards from one or many regions.

Table of Authorities

National standards, law or jurisprudence

  • U.S., Commonwealth v. Knox, No. 1136 WDA 2014 (Pa. Super. Aug. 2, 2016).
  • U.S., Commonwealth v. Peterkin, 378 A.2d 283, 286 (1977).
  • U.S., Commonwealth v. Romberger, 474 Pa. 190, 197, 378 A.2d 283, 286 (1977).
  • U.S., Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp., 515 U.S. 557 (1995)
  • U.S., Ward v. Rock Against Racism, 491 U.S. 781 (1989)
  • U.S., Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981)
  • U.S., Commonwealth v. Bricker, 542 Pa. 234, 241, 666 A.2d 257, 261 (1995).
  • U.S., Brown v. Entm't Merchants Ass'n, 564 U.S. 786 (2011)
  • U.S., Hustler Magazine, Inc., v. Falwell, 485 U. S. 46 (1998)
  • U.S., Cohen v. California, 403 U.S. 15 (1971)
  • U.S., Texas v. Johnson, 491 U.S. 397 (1989)
  • U.S., Ashcroft v. Free Speech Coalition, 535 U.S. 234 (2002)
  • U.S., Chaplinsky v. New Hampshire, 315 U.S. 568 (1942)
  • U.S., Brandenburg v. Ohio, 395 U.S. 444 (1969)
  • U.S., Miller v. California, 413 U.S. 15 (1973)
  • U.S., N.Y. Times Co. v. Sullivan, 376 U.S. 254 (1964)
  • U.S., United States v. Alvarez, 132 S. Ct. 2537 (2012)
  • U.S., Watts v. United States, 394 U.S. 705 (1969)
  • U.S., R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)
  • U.S., State v. Perkins, 626 N.W.2d 762, 767-70 & nn.10-18 (Wis. 2001)
  • U.S., United States v. Alaboud, 347 F.3d 1293, 1297 n.3 (11th Cir. 2003)
  • U.S., United States v. Martinez-Fuerte, 428 U.S. 543 (1976)
  • U.S., Virginia v. Black, 538 U.S. 343 (2003)
  • U.S., United States v. Clemens, 738 F.3d 1 (1st Cir. 2003)
  • U.S., United States v. Jeffries, 692 F.3d 473, 479 (6th Cir. 2012)
  • U.S., United States v. Houston, 683 Fed. Appx. 434 (6th Cir. 2017)
  • U.S., United States v. White, 670 F.3d 498, 508-09 (4th Cir. 2012)
  • U.S., United States v. Cassel, 408 F.3d 622 (9th Cir. 2005).
  • U.S., Fogel v. Collins, 531 F.3d 824 (9th Cir. 2008)
  • U.S., United States v. Parr, 545 F.3d 491 (7th Cir. 2008)
  • U.S., United States v. Elonis,135 S.Ct. 2001(2015)
  • U.S., Perez v. Florida, ___ U.S. ___, 137 S. Ct. 853 (2017)
  • U.S., NAACP v. Button, 371 U.S. 415 (1963)

Case Significance

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Case significance refers to how influential the case is and how its significance changes over time.

This case did not set a binding or persuasive precedent either within or outside its jurisdiction. The significance of this case is undetermined at this point in time.

Official Case Documents

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