Rap Lyrics and the Evolution of First Amendment Protections

By Rafael Santa Maria (PO ’20)

Most petitions to the Supreme Court never receive a writ of certiorari, and thus are never adjudicated by the nation’s highest legal authority. With thousands of cases to consider, the Court must exercise extreme selectivity. However, when a petition is backed by amicus briefs from critically-acclaimed rappers and think tanks alike, the Court may just take notice.

Such is the case for Knox v. Pennsylvania, a pending petition that seeks to determine the future of First Amendment protections for speech that pushes the boundaries of free expression. This petition comes after the Pennsylvania Supreme Court ruled that Jamal Knox, a Pittsburgh rapper, would not be protected by the First Amendment since violent lyrics in one of his songs allegedly conveyed a “true threat” to two law enforcement officers.

Although Knox mentioned two officers by name in a song he uploaded to Youtube, titled “F**k the Police,” Knox’s lawyers point out that most courts require an “objective standard test” to determine whether an article of speech counts as a prosecutable “true threat.” In their petition, Knox’s lawyers state that the Pennsylvania court did not conduct an “objective inquiry into whether a reasonable person would regard the statement as genuinely threatening,” and instead used an alternative “subjective standard” to evaluate Knox’s song.

Unlike the objective standard, which has been widely used to determine culpability, the subjective standard utilized by the Pennsylvania court seeks to determine the subjective intent of the speaker and has not seen as widespread use. To clarify, the commonly used objective standard seeks to determine whether most reasonable people would consider someone’s speech a legitimate threat, while the subjective standard seeks to prove whether the speaker personally meant to threaten someone with their speech. Because of the inconsistent application of either standard, Knox’s lawyers argue that the Supreme Court should adjudicate the case and finally establish which standard should be used to determine what qualifies as unprotected, “true threat” speech.

Seeking to oppose Knox’s petition, the Commonwealth of Pennsylvania filed a brief to the Supreme Court as well. In the brief, Pennsylvania points out that prior to his convictions, Knox was arrested by the same two officers who were later mentioned in his song. Additionally, the brief states that following the discovery of Knox’s song, one of the officers felt threatened enough to relocate to a different department, and the other was provided with an extra security detail.

Furthermore, Pennsylvania’s brief argues that deciding which standard to use for determining guilt was not even in question. The respondents dismiss the objective standard test, stating that, “Knox at no time in these proceedings even attempted to argue that his song did not constitute an objective threat.” Continuing on, they maintain that the statute used to incriminate Knox had the subjective intent standard built in already, since it specifically withholds free speech protections from speech that threatens to “commit any crime of violence with intent to terrorize.”

Altogether, Pennsylvania reasons that since the objective vs. subjective standard issue was not relevant to the case, the Supreme Court should not grant Knox’s petition. Still, the brief does not downplay the uncertainty regarding which standard should be used, and the Supreme Court likely knows that the question must be addressed eventually. Unfortunately for Pennsylvania, the Knox case seemingly presents the best opportunity for deciding upon a universal “true threat” standard.

The potential importance of the Knox petition has led to widespread support in the form of amicus briefs from lawyers, professors, civil liberties advocates, and rappers, with each group contributing reasons to grant Knox’s petition. In the first amicus brief, the National Association of Criminal Defense Lawyers argues that a clear standard is needed to prevent law enforcement from exploiting speech laws and suppressing controversial free speech. In their joint brief, the Cato Institute, a libertarian think tank, and the Rutherford Institute, a civil liberties organization, support the combined use of both the objective and subjective standards for “preserving the widest possible space for free speech and expression.”

Perhaps the most interesting amicus brief was filed on behalf of rappers and industry representatives such as Killer Mike, Chance the Rapper, Meek Mill, 21 Savage, and others. The artists’ brief reminds readers that rap emerged as an urban counterculture music that draws upon anti-establishment sentiment to engage in often-exaggerated social commentary. The brief emphasizes that despite the prevalence of similarly explicit themes in other genres such as country or rock music, “rap is routinely introduced as evidence in criminal trials, where prosecutors will argue that lyrics should be interpreted literally.”

With such broad support and attention, the Knox petition may lead to the reshaping of First Amendment protections. Should the Supreme Court decide to adjudicate Knox for their session next October, then the boundaries of free speech and artistic expression could be expanded, retracted, or remain largely unchanged. Whatever the outcome, the significance of the case goes beyond the world of rap music presenting widespread implications for American public discourse in general.

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