Wednesday, August 22, 2018
In its opinion in Commonwealth v. Knox, a majority of the Pennsylvania Supreme Court upheld a conviction for "terroristic threat" and of witness intimidation based on a video of a rap song performance that he wrote and performed and which was uploaded to YouTube by a third party.
In the opening of its opinion, authored by CJ Saylor, the court stated it would address the issue of "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." But as the opinion makes clear, this involves a determination of whether the lyrics could be understood to constitute a "true threat" under the First Amendment. The court extensively discussed Watts v. United States (1969) and Virginia v. Black (2003), as well as the circuit court applications, in an attempt to reconsider its own precedent decided pre-Black in 2002. The court stated that as it read Black, "an objective, reasonable-listener standard" such as it had used in the 2002 case "is no longer viable for purposes of a criminal prosecution pursuant to a general anti-threat enactment." The court also cited Elonis v. United States (2015), adding a parenthetical explanation: "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." The court summarized the state of First Amendment law after Black:
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.
For the court, an essential issue of the necessary specific intent was the personalization of the lyrics to two named police officers: "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.”
A concurring (and partially dissenting) opinion by Justice Wecht, joined by Donahue, faults the majority for not Majority considering "the more important question of whether the First Amendment requires proof of specific intent, or whether the Amendment would tolerate punishment of speech based upon proof of only a lesser mens rea such as recklessness or knowledge." The concurring opinion focuses more directly on the First Amendment: "It is crucial that we not forget that punishing a person for communicating a true threat, however reasonable it seems, is a content-based regulation of speech. As a general rule, the First Amendment prohibits content-based restraints." Justice Wecht's opinion also has an interesting and insightful discussion of various lyrics, although in the case of Knox's rap song, the words were
not general or vague as to the targets, a circumstance that would have militated against a finding of a true threat. Had the lyrics been directed at police officers generally, or had they complained about perceived abuses by unnamed police officers, those lyrics objectively could have been understood as political commentary or as a musical ventilation of frustration about the rappers’ real-life experiences. That is not what occurred in this case.
Given this conclusion in the concurring opinion, it would seem that the court did not need to reach the recklessness issue.
The Pennsylvania Supreme Court's opinion clearly rests on its interpretation of the First Amendment, so its amenable to a petition for certiorari. But that would seem to be a stretch.