Cliff Rieders

In one of the most interesting cases the Pennsylvania Supreme Court has decided this term, Justice Thomas Saylor writing for the majority in Commonwealth v. Knox, held that lyrics of a rap song may lead to criminal charges. With criminal charges pending involving heroin and guns, the defendants wrote and recorded a rap song titled “F—k the Police.” This was put on video with still images of the police officers in question.The rappers were 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 titled “Beaz Mooga.” The trial evidence strongly suggested it belonged to one of the composers.

The lyrics of the rap video are full of crude and sexual expressions, rich with well-known Anglo-Saxon profanity. The police officers were explicitly referred to by name in the rap lyrics and suggests, at least implicitly if not explicitly, violence against the police.

The police officers testified how upset they were by the lyrics and one of the officers said it was a major reason why he quit the force. The commonwealth sought convictions for witness intimidation and terroristic threats. The court found the rappers guilty on both counts of witness intimidation and terroristic threats. The Pennsylvania Supreme Court upheld the verdict.

The rapper claimed the song was “merely artistic” and that he never intended to threaten the police. The court looked very closely as to whether expressive rights are “absolute.” Speech that threatens unlawful violence can subject the speaker to criminal sanctions. The government may criminalize “true threats” but not mere political hyperbole. Threats of violence fall outside the First Amendment's protective scope, as in Watts v. United States, 394 U.S. 705, 708, 89 S. Ct. 1399 (1969) (per curiam).

Whether this case will make it to the U.S. Supreme Court is a matter of interesting speculation. In order for First Amendment protections to be overcome, the government must prove that the speech was uttered “with the highest level of scienter, namely, a specific intent to intimidate or terrorize,” as in Knox.

Anyone who has listened to the rap that our children imitate will be shocked. However, shock is not enough to constitute a crime where the First Amendment stands in the way of a conviction. Rather, if parents or others are upset by rap lyrics, then we need to have a national conversation about what we are saying to each other, the public, our families and children.

In the Knox case the officers convinced the court that they had a legitimate reason to believe that the defendant-rapper might engage in violence. It is relevant that the police were aware that a loaded firearm had been found near the defendant's feet in an automobile he was driving. However, the rapper was ultimately acquitted of the firearms charges. The firearm charges stemmed from the weapon's presence in the car in which the drugs were found. The video was posted to the internet and seen by the officers well before the trial that resulted in the acquittal on the firearm charges.

The Pennsylvania Supreme Court acknowledged that rap music containing violent imagery is not necessarily meant to represent an intention on the singer's part to carry through the actions described. Music is a form of art. The court also noted the “unique history and social environment” from which rap arose. The stage persona of a rap artist may be different than what that rapper is really like. Perhaps the rapper is just trying to make money by extolling violence. Maybe the rapper is looking for a following of empty-headed, bored youngsters. “In many instances, lyrics along such lines cannot be reasonably understood as a sincere expression of the singer's intent to engage in real-world violence,” according to the opinion.

The court found that the rap lyrics in this case fell outside of the protections of the First Amendment. Look for this case not to be the end of this debate on the important subject of wondering where music crosses a line from “art” to criminal conduct.

Cliff Rieders, of Rieders, Travis, Humphrey, Waters, & Dorhmann, is a board-certified trial advocate in Williamsport, past president of the Pennsylvania Trial Lawyers Association and a past member of the Pennsylvania Patient Safety Authority. Contact him at [email protected].