Commonwealth v. Knox, J., Aplt.
190 A.3d 1146
Pa.2018Background
- In April 2012 Jamal Knox (Appellant) and Rashee Beasley were arrested after a traffic stop; police found heroin and a loaded, stolen firearm in/near the vehicle. Officers Kosko and Zeltner were to testify against them.
- Knox and Beasley recorded a rap song/video titled "Fuck the Police" that named Officers Kosko and Zeltner, described killing police and informants, referenced Richard Poplawski, and included gunfire/siren sound effects; photos showed the rappers making firing gestures.
- The video was uploaded to YouTube (by a third party) and linked on a Facebook page tied to Beasley; Officer Spangler discovered it and alerted Kosko and Zeltner, who perceived it as threatening and took security measures.
- Knox was charged and convicted at a consolidated bench trial of two counts of terroristic threats (18 Pa.C.S. §2706(a)(1)) and witness intimidation (18 Pa.C.S. §4952(a)) based solely on the video; the trial court found Knox acted with intent to intimidate/terrorize.
- The Superior Court affirmed (on waiver and sufficiency grounds); the Pennsylvania Supreme Court granted review limited to whether the rap video was protected speech or a punishable "true threat."
- The Supreme Court applied First Amendment true-threat doctrine (considering Watts, Virginia v. Black, and context-based factors) and affirmed Knox's convictions, concluding competent evidence supported the trial court's finding of subjective intent to intimidate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the rap video was protected speech under the First Amendment or a punishable true threat | Knox: the song is artistic rap expression, a persona/stage performance, and thus protected; he lacked intent to threaten and may not have known it would be posted | Commonwealth: lyrics and context show targeted, personalized threats to named officers with motive and surrounding facts supporting intent to intimidate | Held: Not protected — court affirmed convictions; the speech constituted a true threat given content and context and a finding of subjective intent to intimidate |
| Whether proof supported mens rea for terroristic threats and witness intimidation (knowledge/intent to publish and to intimidate) | Knox: insufficient evidence he intended publication or to communicate to police; thus lacked requisite mens rea | Commonwealth: prior practice, promotional links, and context support a finding Knox knew or intended dissemination and intended to intimidate | Held: Court declined to address publication-only question on review selection; as to intent to intimidate, trial court’s finding of subjective intent was supported by competent evidence |
| Proper standard for evaluating true threats post-Virginia v. Black | Knox: (and amici) urge robust protection for artistic expression; contend objective tests risk chilling art; subjective intent not established | Commonwealth: true-threat doctrine permits criminalizing threats specifically intended to intimidate; contextual (Watts-style) factors are relevant | Held: Post-Black, doctrine requires inquiry into speaker’s mental state; convictions survive because trial court found specific intent and context supported it |
| Whether use of rap persona/genre categorically protects threatening lyric content | Knox/amici: rap genre conventions, persona, and artistic hyperbole should weigh against construing lyrics as literal threats | Commonwealth: genre/persona do not provide categorical immunity where content is targeted and context indicates earnest intent | Held: Genre/persona cannot categorically shield true threats; here personalization and context overcome artistic-style defenses |
Key Cases Cited
- Watts v. United States, 394 U.S. 705 (U.S. 1969) (distinguishes political hyperbole from punishable true threats; context matters)
- Virginia v. Black, 538 U.S. 343 (U.S. 2003) (holds states may criminalize cross-burning intended to intimidate; requires inquiry into speaker's intent)
- Elonis v. United States, 135 S. Ct. 2001 (U.S. 2015) (addresses mens rea in threat prosecutions and the relevance of speaker’s state of mind)
- J.S. ex rel. H.S. v. Bethlehem Area Sch. Dist., 807 A.2d 847 (Pa. 2002) (adopts totality/context factors for distinguishing true threats from protected online speech; applied in student speech setting)