PA Supreme Court Rejects First Amendment Challenge to Witness Intimidation Conviction Based on Rap Lyrics
The Pennsylvania Supreme Court has decided the case of Commonwealth v. Knox, holding that rap lyrics can support convictions for witness intimidation and terroristic threats even where there is no evidence that the defendants actually sent the video of the rap to the complainants. The court rejected the idea that the First Amendment right to free speech shielded the authors of the lyrics from criminal liability because the song communicated a true threat to the complainants.
The Facts of Commonwealth v. Knox
In April 2012, a Pittsburgh police officer initiated a routine traffic stop of a vehicle driven by the defendant. While the officer was questioning the defendant, the co-defendant got into the driver’s seat and then sped away and crashed the vehicle. The police caught up, searched the vehicle, and recovered fifteen bags of heroin, money, and a stolen firearm on the driver’s-side floor of the car. When they arrested the defendant, he gave the police a fake name. A detective eventually arrived on scene, recognized the defendant, and provided the arresting officers with his real name. Based on these facts, the defendant and his co-defendant were subsequently charged with several offenses, including weapons charges.
While the charges were pending, the defendants wrote and recorded a song titled “F—k the Police,” which was put on video with still photos of the defendants displayed in a montage. In the photos, the two looked into the camera and motioned as if firing weapons. The video was uploaded to YouTube and also publicized on Facebook. Prosecutors did not establish who uploaded the video to the internet.
The song’s lyrics expressed hatred towards the Pittsburgh police. The lyrics of “F—k the Police” contain descriptions of killing police informants and police officers. The song specifically mentioned the officers involved in the defendant's case and that the defendants knew when those officers’ shifts end. It suggested that the officers may be attacked in their homes. Further, the lyrics also contained a reference to an individual who previously murdered three Pittsburgh police officers.
The Pittsburgh police discovered this song and then arrested and charged the defendant with terroristic threats and witness intimidation. At the trial, one of the officers testified about the “street slang” for some of the lyrics mentioned in the song. Examples include “cop killa” as a type of bullet that can pierce armored vests; “strapped nasty” means carrying multiple weapons; and “busting heavy” means to shoot many rounds.
One of the officers involved in the defendant's first case testified at trial. He testified that when he heard the song he was “shocked” and it made him “nervous.” He further stated that it was one of the reasons why he left the Pittsburgh police force. A detective involved in the defendant's first case also testified and said he found the song to be very upsetting and that it made him concerned for his safety.
At the conclusion of the trial, it was clear that the song was the sole basis on which the Commonwealth sought convictions for witness intimidation and terroristic threats. The defendant argued that the song was protected speech and that any conviction would violate his First Amendment rights. The trial court rejected the argument and found him guilty of witness intimidation and terroristic threats. He then filed a timely appeal. The Superior Court affirmed the conviction, and the Pennsylvania Supreme Court granted allocatur and heard the appeal.
What is the First Amendment?
The First Amendment to the United States Constitution provides:
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. ”
First Amendment protections apply broadly to different types of expression including art, poetry, film, and music. The bedrock principle of the First Amendment is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.
However, not all speech is protected. In Schenck v. United States, Oliver Wendell Holmes was famously quoted as saying that the First Amendment does not protect against someone falsely shouting “fire” in a theater and causing a panic. Further, threats of violence fall outside the First Amendment’s protective scope. In response to threats of violence, the United States Supreme Court adopted the “true-threat doctrine.”
What is the “True-Threat Doctrine?”
The “true-threat doctrine” originated from the United States Supreme Court case Watts v. United States. In that case, the defendant was convicted of a federal statute making it a crime to threaten the President. In Watts, the defendant stated that, in essence, he would not report to the draft and “if they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” Though the Supreme Court upheld the statute as constitutional, the Court went on to say that the defendant’s conviction could only be upheld if his words conveyed an actual threat, as opposed to political hyperbole. In Watts, the Court held that, given the circumstances in Watts (it was uttered during a political debate, the audience reacted with laughter, and that it was a conditional threat) that the statement was merely just an expression of political dissent and not a true threat.
In subsequent years, courts across the country have struggled to define the “true-threat doctrine.” Some jurisdictions utilize an objective standard, while other jurisdictions put great emphasis on the speaker’s subjective intent when making a statement. In Knox, the Pennsylvania Supreme Court held that there should be an inquiry into the speaker’s mental state and thus evidentiary weight should be given to contextual circumstances of the utterance.
Pennsylvania Supreme Court Affirms Defendant's Conviction
In its decision, the Pennsylvania Supreme Court affirmed the defendant's convictions for terroristic threats and witness intimidation. Specifically, the justices did not find persuasive the argument that the defendant's song was an “artistic expression of frustration.” The Court rejected the First Amendment argument because of the fact that some of the officers involved in his first case were mentioned by name and the lyrics described in graphic terms how he intended to kill them.
To the Pennsylvania Supreme Court, “the lyrics are both threatening and highly personalized to the victims.” Its conclusion is further bolstered by the fact that the song references the officers’ shifts. Additionally, because the lyrics were directly related to the defendant's first case (i.e. the one officer confiscating cash from Appellant to which he says that said officer “knockin’ my riches”) was further support that the defendant's song was personalized to the officers. The Pennsylvania Supreme Court also did not find persuasive the fact that the song was not directly sent to the officers. The fact that the song was published on YouTube and Facebook, despite no direct evidence that the defendant posted it on these mediums so that the police would see it, was sufficient to convict the defendant of these crimes.
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