Commonwealth of Pennsylvania v. Knox: Hate Song about the Police

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In this appeal by allowance, we address whether the First Amendment to the United States Constitution permits the imposition of criminal liability based on the publication of a rap-music video containing threatening lyrics directed to named law enforcement ofﬁcers.

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 (see Commonwealth v. Poplawski, 634 Pa. 517, 130 A.3d 697 (2015)).

Finally, the song includes background sounds of gunﬁre and police sirens.

In light of the present issue – whether the song communicated a “true threat” falling outside First Amendment protections – we reproduce the lyrics in full without alteration, although they include violent imagery and numerous expletives:

Chorus:

If y’all want beef we can beef
l got artillery to shake the mother fuckin’ streets
If y’all want beef we can beef
l got artillery to shake the mother fuckin’ streets
You dirty bitches won’t keep knockin’ my riches
This ghetto superstar my committee riches
This ain’t ghetto wit it
Fuck superstar the Police
You committee dirty ain’t bitches won’t keep knockin’ wit it
Fuck the Police

Ofﬁcer Aaron Spangler, also of Zone 5, discovered the video while monitoring the “Beaz Mooga” Facebook page. He alerted other police personnel, including Ofﬁcer Kosko and Detective Zeltner, who watched the video. Thereafter, Appellant was again arrested and charged with, inter alia, two counts each of terroristic threats, and witness intimidation.

A consolidated bench trial on both sets of charges (as well as a third set of charges which is not presently relevant) ensued at which the Commonwealth introduced the video into evidence without objection and played it for the court.

Ofﬁcer Spangler testiﬁed that he had spent time interacting with individuals in the relevant neighborhood and had learned some of their street slang. He indicated that “busting heavy” means to shoot many rounds; a “tec” is a TEC-9, a semiautomatic pistol which holds a large-capacity magazine; to “spit with a tec” means to shoot with a TEC-9; a “cop killa” is a type of bullet that can pierce armored vests; and “strapped nasty” means carrying multiple weapons.

With regard to the lyric, “Hello Breezos got you watching my moves,” Ofﬁcer Spangler explained that Hello Breezos was the title of an earlier rap song by Appellant and Beasley, and that a “breezo” is a “brick” of heroin consisting of 50 stamp bags.

In terms of the song’s effects, Ofﬁcer Kosko testiﬁed that when he heard it, he was “shocked” and it made him “nervous.” He cited it as one of the reasons he decided to leave the Pittsburgh police force and relocate.

For his part, Detective Zeltner stated he found the video “very upsetting,” and that it made him concerned for his safety as well as that of his family and fellow ofﬁcers. He explained that extra personnel had to be assigned to Zone 5 to deal with “the threat.” As well, the detective was given time off and a security detail.

By the conclusion of the trial, it became clear that the rap song was the sole basis on which the Commonwealth sought convictions for witness intimidation and terroristic threats. In his summation, therefore, Appellant argued that the song was protected speech, and hence, any conviction based on it would violate his First Amendment rights.

The trial court rejected this argument and found him guilty on both counts of witness intimidation and terroristic threats. In reaching its verdict on the witness intimidation counts, the court found beyond a reasonable doubt that Appellant and Beasley speciﬁcally intended to intimidate the ofﬁcers so as to obstruct the administration of criminal justice, and that they did so in collaboration with one another. The court also found Appellant guilty of, inter alia, possessing with intent to deliver a controlled substance.

In his Rule 1925(b) statement, Appellant renewed his contention that the video was constitutionally protected speech, and also claimed there was insufﬁcient evidence that he had the requisite mens rea to commit terroristic threats and witness intimidation, as he was allegedly unaware the video would be posted online. The trial court rejected these claims. As to the First Amendment issue, the court held the song amounted to a “true threat directed to the victims”; as such, the court concluded it was not protected speech.

The Superior Court afﬁrmed in a memorandum opinion. Addressing the mens rea claim ﬁrst, the court explained that the Commonwealth was required to establish that Appellant acted at least knowingly with respect to each element of each offense.

Based on trial evidence suggesting a prior course of conduct in which Appellant and Beasley made rap videos which Beasley would then publish online, the Superior Court concluded there was sufﬁcient evidence to support a ﬁnding that Appellant was aware that the video in question would be posted to a publicly viewable Internet site and seen by the police.

The Superior Court next rejected Appellant’s First Amendment claim, albeit on different grounds than the trial court. The intermediate court characterized Appellant’s argument solely as a contention that the video was inadmissible at trial due to its purportedly protected status under the First Amendment. Any such argument was waived, the court explained, as Appellant had not lodged a contemporaneous objection when the video was admitted. Notably, the Superior Court did not evaluate whether the song comprised protected speech. Appellant petitioned for further review, raising the same two issues. We denied the petition in relation to the sufﬁciency challenge, but granted review limited to the issue of whether the rap video “constitutes protected free speech or a true threat punishable by criminal sanction.” As the question of whether a statement constitutes a true threat is circumstance-dependent, Appellant raises a mixed question of fact and law. Thus, we defer to the trial court’s fact ﬁndings which are supported by competent evidence and resolve any legal questions, such as the scope of the true-threat doctrine, de novo. In conducting our review, we independently examine the whole record.

Appellant denies he intended to threaten the police. His assertion in this regard has two conceptually distinct facets, which at times he intermixes. The ﬁrst relates to whether the evidence adequately demonstrated that Appellant intended for the video to be uploaded to the Internet and viewed by the police. The second involves a contention that the song was merely artistic in nature and was never meant to be interpreted literally. In this latter regard, Appellant states that he considers himself a poet, musician, and entertainer. Rap music serves as his vehicle for self-expression, self-realization, economic gain, inspiring pride and respect from … peers, and speaking on public issues including police violence, on behalf of himself and others.

Appellant is supported by several amici who make similar observations. The ACLU of Pennsylvania argues that artistic expression “has the power to shock,” and this is particularly true with rap, which is sometimes “saturated with outrageous boasts and violent metaphors.”

The Defender Association of Philadelphia questions whether the trial court’s interpretation of street language in the rap video as conveying a literal threat was methodologically sound. The Association advocates that the video should not have been seen as “autobiography,” but as “art, poetry, and fantasy” addressing social issues. The Association adds that Appellant’s status as a semi-professional rap artist with a distinct rap persona (“Mayhem Mal“) should have been taken into account as a contextual factor suggesting Appellant did not intend to communicate an actual threat.

The Thomas Jefferson Center for the Protection of Free Expression and the Marion B. Brechner First Amendment Project, in a joint brief, echo many of these same points. They add that violent depictions receive First Amendment protection in other media such as ﬁlms and video games and argue the same protection should extend to rap music as a medium for the expression of ideas.

With respect to Appellant’s challenge to the sufﬁciency of the evidence to show he intended to publish the video to the Internet or convey it to the police, we note that Appellant raised the same issue as a distinct basis for relief in his petition for allowance of appeal, and the issue was not selected for review. As such, it is not before this Court. Therefore, any proofs along these lines are only relevant insofar as they shed light on contextual factors tending to demonstrate whether the video amounted to a true threat under the circumstances. To answer that question, we initially review the First Amendment’s true-threat doctrine as it has developed.

The First Amendment prohibits Congress from abridging the freedom of speech. This prohibition applies to the States through the Fourteenth Amendment. The “heart” of the First Amendment “has been described as the ‘ineluctable relationship between the free ﬂow of information and a self-governing people.’

Hence, First Amendment freedoms apply broadly to different types of expression, including art, poetry, ﬁlm, and music. Such freedoms apply equally to cultured, intellectual expressions and to crude, offensive, or tawdry ones.’

In light of the above, the government generally lacks the authority to restrict expression based on its message, topic, ideas, or content. This means the state may not proscribe speech due to its own disagreement with the ideas expressed, or because those ideas are unpopular in society. (“If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society ﬁnds the idea itself offensive or disagreeable.”).

Nevertheless, expressive rights are “not absolute.” The Constitution tolerates content-based speech restrictions in certain limited areas when that speech is “of such slight social value as a step to truth that any beneﬁt that may be derived from [it] is clearly outweighed by the social interest in order and morality.”

Accordingly, J.S. recognized that “certain types of speech can be regulated if they are likely to inﬂict unacceptable harm,” and listed several examples.

Of particular relevance to this case, speech which threatens unlawful violence can subject the speaker to criminal sanction (the government may criminalize “true threats” but not mere political hyperbole. Threats of violence fall outside the First Amendment’s protective scope because of the need to “protect individuals from the fear of violence, from the disruption that fear engenders, and from the possibility that the threatened violence will occur.”

The true-threat doctrine has its genesis in the Watts case. In that matter, Watts was attending a discussion group in Washington, D.C., during the Vietnam War when the military draft was in effect. After someone suggested young people become more educated before expressing their views, Watts responded:

They always holler at us to get an education. And now I have already received my draft classiﬁcation as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a riﬂe the ﬁrst man, I want to get in my sights is L.B.J.

Watts was convicted under a federal statute making it a crime to threaten the President. The Supreme Court found the statute facially valid in light of the “overwhelming” interest in protecting the President’s safety and allowing him to perform his duties unhampered by threats of violence. Nevertheless, the Court concluded that Watts’ conviction could only be upheld if his words conveyed an actual threat as opposed to political hyperbole. Considering the full context of the statement – it was uttered during a political debate which often involves inexact and abusive language, the alleged threat was conditioned on an event Watts vowed would never occur (his induction into the military), and the audience reacted by laughing – the Court determined that the statement could only reasonably be interpreted as an expression of political dissent and not a true threat. Thus, the Court overturned Watts’ conviction.

In the years following Watts, a number of courts assessed whether a speaker’s words constituted a true threat by looking to similar contextual circumstances. courts used an objective standard rather than evaluating the speaker’s subjective intent. Various objective tests emerged, some focusing on how a reasonable listener would construe the speech in context, and others asking what kind of reaction a reasonable speaker would foresee on the part of the actual listener or a hypothetical reasonable listener.

The Supreme Court next addressed the true-threat concept in Virginia v. Black, 538 U.S. 343, 123 S. Ct. 1536 (2003). In that matter, the Court reviewed a Virginia statute which made it unlawful to burn a cross in public or on another’s property with the intent to intimidate any person or group. Importantly, the enactment also included a statutory presumption making the burning of a cross “prima facie evidence of an intent to intimidate a person or group of persons.”

A majority of Justices found the statutory presumption constitutionally problematic. In a portion of her lead opinion representing the views of four jurists, Justice O’Connor explained that such a presumption could allow the state to criminalize constitutionally-protected cross burnings such as those intended only as statements of ideology or group solidarity, those intended to anger but not intimidate, or those undertaken in a dramatic performance. In a non-joining responsive opinion, Justice Souter, joined by two other Justices, articulated similar views, stating, “the symbolic act of burning a cross, without more, is consistent with both intent to intimidate and intent to make an ideological statement free of any aim to threaten.” His concern was that, in close cases with conﬂicting evidence as to the cross-burner’s intent, the statutory presumption might sway a factﬁnder to convict – which in turn could risk converting the statute into a means of suppressing ideas.

In the post-Black timeframe, courts have disagreed over whether the speaker’s subjective intent to intimidate is relevant in a true-threat analysis. Some have continued to use an objective, reasonable-person standard. These courts interpret Black’s intent requirement as applying to the act of transmitting the communication. In their view, an objective standard remains appropriate for judging whether the speech, taken in its full context, embodies a serious expression of an intent to commit unlawful violence. They reason from the premise that the First Amendment traditionally lifts its protections based on the injury inﬂicted rather than the speaker’s guilty mind.

Other courts have read Black as implying that the First Amendment only allows the government to penalize threatening speech uttered with the highest level of scienter, namely, a speciﬁc intent to intimidate or terrorize.

Still others have charted something of a middle course, suggesting that “an entirely objective deﬁnition [of a true threat] is no longer tenable” after Black, while reserving judgment on whether the standard should be subjective only, or a subjective objective combination pursuant to which a statement “must objectively be a threat and subjectively be intended as such.”

As we read Black, an objective, reasonable-listener standard such as that used in J.S. is no longer viable for purposes of a criminal prosecution pursuant to a general anti-threat enactment. It seems to us that the seven members of the Black Court whose views were represented by Justice O’Connor’s plurality opinion and Justice

Souter’s responsive opinion believed the First Amendment necessitates an inquiry into the speaker’s mental state (Elonis v. United States, U.S. – 135 S. Ct. 2001 (2015), holding that, under longstanding common-law principles, a federal anti-threat statute which does not contain an express scienter requirement implicitly requires proof of a mens rea level above negligence).

Our conclusion in this regard stems from the fact that these Justices viewed the Virginia statute’s presumption as raising substantial First Amendment difﬁculties. In criticizing that aspect of the law, their focus seems to have been on values and concerns associated with the First Amendment: the social undesirability of suppressing ideas, punishing points of view, or criminalizing statements of solidarity or ideology. Construing the Court’s discussion of the speaker’s intent as pertaining solely to the act of transmitting the speech appears difﬁcult to harmonize with the assertion that “[intimidation in the constitutionally prescribable sense of the word is a type of true threat, where a speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

To summarize, then, the two facets of Black which are most relevant to this dispute are as follows.

First, the Constitution allows states to criminalize threatening speech which is speciﬁcally intended to terrorize or intimidate. Second, in evaluating whether the speaker acted with an intent to terrorize or intimidate, evidentiary weight should be given to contextual circumstances such as those referenced in Watts. With these principles in mind, we apply our appellate standard of review as articulated above in light of the evidence adduced at trial and the common pleas court’s factual ﬁndings.

As recounted above, the trial court convicted Appellant of two distinct crimes, terroristic threats and witness intimidation. As to both offenses, the court found beyond a reasonable doubt that Appellant acted with a subjective intent to terrorize or intimidate the ofﬁcers in question. For purposes of terroristic threats, this follows from fact that such intent is an element of the offense.

With regard to witness intimidation, the trial court placed on the record its particularized ﬁnding that Appellant acted with such intent. Under Black, these ﬁndings, if supported by competent evidence, are sufﬁcient to place the rap song within the true-threat category. Thus, we consider the content and full context of what the song communicated.

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. Along these same lines, they refer to the police having “taken 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 soundtrack includes bull horns, police sirens, and machine-gun ﬁre ringing out over the words, “bustin’ heavy metal.”

Pursuant to Watts and J.S., we 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, 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., 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 “artists 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. 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. Pennsylvania’s legislative body has made such a policy judgment by enacting statutes which prohibit the making of terroristic threats and the intimidation of witnesses, and for the reasons given Appellant cannot prevail on his claim that his convictions under those provisions offend the First Amendment.

The order of the Superior Court is afﬁrmed.

Commonwealth of Pennsylvania, Appellee v. Jamal Knox, Appellant. J-83-2017. Supreme Court of Pennsylvania, Western District. Appeal from the Order of the Superior Court. Argued November 28, 2017. Decided August 21, 2018.