When Do a Rap Artist’s Lyrics Become a “True Threat”? SCOTUS Has an Opportunity to Answer

By Tyler Votel, Senior Editor

“You Never Thought That Hip Hop Would Take It This Far”[1]

One might reasonably believe that, over 225 years after its ratification, First Amendment law would be settled by now. However, courts adjudicating First Amendment cases are often met with unique challenges. This is especially true as our country’s culture continues to evolve and things that were once considered unacceptable make their way into the mainstream.[2] What is firmly established is that certain types of speech, including true threats, do not receive First Amendment protections.[3] However, what is not so firmly established is what exactly constitutes a true threat.[4]

The Supreme Court recently had an opportunity to answer the true threat question in Elonis v. United States.[5] In Elonis, the defendant, Mr. Elonis, was convicted under 18 U.S.C. § 875(c), which makes it illegal to transmit threatening communication to injure the person of another.[6] Mr. Elonis posted graphically violent language and imagery, mainly in the form of self-written rap lyrics, directed towards his estranged wife and others on Facebook.[7] Mr. Elonis argued that the government should have to prove that he intended to communicate a true threat.[8] The government argued that it only needed to prove that a reasonable person would regard Mr. Elonis’s communication as a threat, which is essentially a negligence standard.[9] Ultimately, the Court held that negligence alone is not enough to convict a defendant under 18 U.S.C. § 875(c).[10] However, the Court declined to define exactly what level of intent is necessary to sustain a conviction under such a statute.[11]

Because the Supreme Court declined to review the potential First Amendment issue in Elonis, the Court’s decision has done little to help the confusion regarding the true threat doctrine.[12] Fast-forward to today and the Supreme Court has an excellent opportunity to resolve this issue. In 2012, Jamal Knox, a Pittsburgh rapper who raps under the name Mayhem Mal, was arrested on gun and drug charges.[13] While these charges were pending, Mr. Knox wrote and recorded a rap song entitled “F--k the Police.”[14] As the name might suggest, Mr. Knox’s song included descriptions of killing police officers and other graphic depictions of violence.[15] Additionally, Mr. Knox’s song specifically named two of the officers involved in his earlier arrest.[16] Based solely on his song, Mr. Knox was charged with making terroristic threats and with witness intimidation.[17] Mr. Knox was convicted on these charges and his conviction was affirmed by the Supreme Court of Pennsylvania.[18] The Supreme Court of Pennsylvania held that a statement can constitute a true threat based solely on the speaker’s subjective intent regardless of the context in which the speech was made.[19] Mr. Knox filed his petition for a writ of certiorari on January 18, 2019.

Mr. Knox’s main argument is that his song did not constitute a true threat and was therefore constitutionally protected under the First Amendment.[20] Mr. Knox argues that the Supreme Court of Pennsylvania erred when it did not consider how a reasonable person would view his song in the context of rap music.[21] Essentially, Mr. Knox would have courts, at the very least, apply an objective test that would prevent the government from censoring speech based solely on the speaker’s subjective intent.[22] Mr. Knox is not alone in holding this view and a coalition of legal scholars and famous rap artists, such as Chance the Rapper, Meek Mill, and Killer Mike, have come to Mr. Knox’s aid.[23] Along with the filing of their amicus brief, the rap artists have also offered the Supreme Court “a primer on rap music and hip-hop.”[24] This is, of course, being offered in the hopes that the Supreme Court will adopt an objective true threat test that will take rap’s history and tone into consideration.

As of today, the Supreme Court has yet to determine whether it will grant certiorari to Mr. Knox, but it is likely that the Court will want to put this First Amendment issue to rest. In Elonis, both Justice Alito and Justice Thomas wanted the Court to more clearly define the true threat doctrine.[25] Justice Sotomayor has also shown interest in resolving the true threat issue once and for all.[26] If the Court grants certiorari, how it will decide is somewhat of a toss-up. Two justices have been replaced since the Court’s decision in Elonis and it is unclear how they and the justices who were part of the majority in Elonis will decide given the unique facts of Mr. Knox’s case. No matter how the Court would ultimately decide, hopefully it will take this fantastic opportunity to settle the true threat doctrine for good.

[1] Notorious B.I.G., Juicy, on Ready to Die (Bad Boy & Arista Records 1994).

[2] See Jon Christopher Wolfe, Sex, Violence, and Profanity: Rap Music and the First Amendment, 44 Mercer L. Rev. 667, 679-80 (1993).

[3] See Elonis v. United States, 135 S. Ct. 2001, 2016 (2015) (Alito, J., concurring and dissenting) (citing Virginia v. Black, 538 U.S. 343, 359-60 (2003); R.A.V. v. St. Paul, 505 U.S. 377, 388 (1992); Watts v. United States, 394 U.S. 705, 707-08 (1969)).

[4] Id. at 2012-13.

[5] Id.

[6] Id. at 2004.

[7] Id. at 2004-07.

[8] Id. at 2007.

[9] Elonis, 135 S. Ct. at 2008.

[10] Id. at 2012.

[11] Id. at 2012-13.

[12] See Clay Calvert & Matthew D. Bunker, Fissures, Fractures & Doctrinal Drifts: Paying the Price in First Amendment Jurisprudence for a Half Decade of Avoidance, Minimalism & Partisanship, 24 Wm. & Mary Bill of Rts. J. 943, 957 (2016).

[13] Commonwealth v. Knox, 190 A.3d 1146, 1148-49 (Pa. 2018), petition for cert. filed, 87 U.S.L.W. 3313 (U.S. Jan. 18, 2019) (No. 18-949).

[14] Id.

[15] Id. at 1149.

[16] Id.

[17] Id. at 1150.

[18] Id. at 1161.

[19] Knox, 190 A.3d at 1161, petition for cert. filed, 87 U.S.L.W. 3313 (U.S. Jan. 18, 2019) (No. 18-949).

[20] Petition for Writ of Certiorari at 14-15, Knox, 190 A.3d 1148 (No. 18-949).

[21] Id. at 17-20.

[22] Id.

[23] See generally Brief of Amici Curiae Michael Render (“Killer Mike”), Erik Nielson, and Other Artists and Scholars in Support of Petitioner, Knox, 190 A.3d 1148 (No. 18-949).

[24] Adam Liptak, Hip-Hop Artists Give the Supreme Court a Primer on Rap Music, N.Y. Times, March 6, 2019.

[25] See Elonis v. United States, 135 S. Ct. 2001, 2013-14 (2015) (Alito, J., concurring and dissenting); see also Elonis, 135 S. Ct. at 2018 (Thomas, J., dissenting).

[26] See Perez v. Florida, 137 S. Ct. 853, 855 (2017) (Sotomayor, J., concurring in the denial of certiorari).