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A rap video posted to Facebook crossed the line from artistic to threatening when its lyrics described violent acts, named two Pittsburgh police officers and suggested the rappers knew where those officers lived, the Pennsylvania Supreme Court said in holding it was not protected by the First Amendment.

The Supreme Court last week ruled 5-2 in Commonwealth v. Knox, which delved into the question of whether the video constituted protected free speech, or a punishable threat. The ruling affirmed the state Superior Court, which had determined that the video provided sufficient basis for Jamal Knox and a co-defendant to be convicted of witness intimidation and making terroristic threats.

The defendants had been facing criminal charges when the rap song was posted online, and the officers mentioned in the song had been expected to testify at their trials.

In his 25-page opinion issued Aug. 21, Chief Justice Thomas G. Saylor said the court recognized rap music “often contains violent imagery” that is not meant as a threat, but the lyrics at issue were very specific and seemed to blur the line between the defendants' artistic personas and real threats.

“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, stands in conflict with the contention that the song was meant to be understood as fiction,” Saylor said. “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 genuine intent to inflict harm, we would in effect be interpreting the constitution to provide blanket protections for threats, however severe, so long as they are expressed within that musical style.”

Justice David N. Wecht issued a concurring and dissenting opinion, saying he disagreed with the majority's decision to leave open the question of whether the First Amendment requires proof of a specific intent, or whether a defendant can be punished based on recklessness.

“Because it is imperative that we reconsider and modify our true threats test, we should construct a complete and final test, not a partial one that leaves uncertainty that will serve only to complicate and protract litigation in future cases,” Wecht said, noting that the state's precedent predates guidance from the U.S. Supreme Court's 2015 decision in Elonis v. United States and 2003 decision in Virginia v. Black.

Pittsburgh attorney Patrick Nightingale, who is representing Knox, said the ruling should provide some guidance about where the line lies when it comes to “edgy” art forms and terroristic threats.

“We always knew our biggest weakness with Mr. Knox's case was the fact that the two Pittsburgh police officers were individually named in the song, and that essentially is what it came down to in the Supreme Court,” Nightingale said.

According to Saylor, the defendants had been facing several charges in connection with a 2012 arrest, after they were found with a drugs and a gun following a police chase. While the case was pending, the two defendants wrote and recorded a song that threatened two police officers involved in the arrest. The video was uploaded to the video-sharing website, YouTube, and was found by police on the Facebook page of Beaz Mooga, the purported alter-ego of Knox's co-defendant.

Saylor said that one of the officers mentioned in the song said he was shocked by the content and it was one of the reasons that officer decided to leave the police force and relocate. The other officer, according to Saylor, was given time off and a security detail.

Saylor said that, under Black, courts should not use a reasonable-listener standard, but instead there needs to be an inquiry into the speaker's mental state.

The fact that the defendants had a history of making their songs public and that the video was linked to Beaz Mooga's Facebook page indicated they intended the song to be published, Saylor said. He also noted that one of the defendants had initially been charged with possession of a loaded firearm.

However, in a footnote, Saylor said that, because Knox was found by the trial court to have acted intentionally regarding both the threats and witness intimidation, the court did not need to resolve whether knowledge or recklessness is sufficient to overcome First Amendment protections.

“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,” Saylor said.

Michael Manko, a spokesman with the Allegheny County District Attorney's Office, did not return a call seeking comment.

(Copies of the 49-page opinion in Commonwealth v. Knox, PICS No. 18-1055, are available at http://at.law.com/PICS.)