Was anti-cop rap song 'artistic' or 'threat'? Pa. high court to decide

HARRISBURG — The lyrics talked about Glocks and bullets and knowing where two specific police officers slept.

The song referenced the Stanton Heights man convicted of killing three Pittsburgh police officers in 2009.

It included the words: "Let's kill these cops 'cause they don't do us no good."

Now, the state Supreme Court must decide if that rap song is protected free speech under the First Amendment, or if it constituted a "true threat" that properly resulted in a criminal conviction for terroristic threats and witness intimidation.

The case, brought by Jamal Knox, 23, of Pittsburgh, one of two men who wrote and performed the song, will be argued before Pennsylvania's highest court Tuesday in Harrisburg.

Knox, 23, and Rashee Beasley, 26, also of Pittsburgh, wrote and performed their song in 2012, and someone — they say it wasn't them — uploaded it to YouTube. Shortly thereafter, they were charged by Pittsburgh police who construed the song's lyrics as threats made specifically against Det. Daniel Zeltner and Officer Michael Kosko, both of whom had previously arrested the men.

Following a nonjury trial before Allegheny County Common Pleas Judge Jeffrey A. Manning, both men were found guilty, and in February 2014, Knox was ordered to serve two to six years in state prison. He was released in December 2016.

Knox appealed his conviction to the state Superior Court, which upheld it last year. But the state Supreme Court agreed to hear the case based solely on the issue of whether the song qualifies as a threat under the case law or if it is protected free speech.

Knox's attorney, Patrick Nightingale, said no evidence was presented at trial that Knox intended to communicate a threat of violence against the officers.

"The song was artistic in nature. As a gangster rap artist, Knox considered himself a poet, musician, and entertainer," he  argued. "Rap music served as his vehicle for self-expression, self-realization, economic gain, inspiring pride and respect from their peers, and speaking on public issues including police violence, on behalf of him and others who may lack the courage or ability to speak on such issues.

"Threatening police was not the intent of Knox's expression."

Under U.S. Supreme Court precedent, Mr. Nightingale contended, "true threats are 'those statements where the speaker means to communicate a serious expression of intent to commit an act of unlawful violence to a particular individual or group of individuals.'"

Even to be considered a threat, he said, the words need to be conveyed either directly or indirectly to the person in question.

That didn't happen in this case, he said. Neither Knox nor Beasley uploaded the song to YouTube, and, Mr. Nightingale said, no proof was presented that they intended for the officers to hear it.

But Assistant District Attorney Francesco Nepa said in his brief that the state Supreme Court denied review on the question of whether there was evidence that Knox uploaded the song, and that that issue should not even be considered.

Nepa said the U.S. Supreme Court precedent cited by Nightingale does not require an intent to actually carry out the threat but instead is meant to protect the targets "from the fear of violence" and "from the disruption that fear engenders," as well as "from the possibility that the threatened violence will occur."

In this instance, the officers said that they felt fearful when they heard the lyrics, he said.

When they arrested Knox and Beasley, a loaded firearm was found in the car, "making the threats of violence expressed in the song that much more real," Mr. Nepa wrote, and the officers still were witnesses in the case against them at the time the song was written.

Nepa contended that the song is a true threat that deserves no First Amendment protection, adding, "'artistic creation' does not give its creator license to say anything that he wants without fear of repercussion."

In a friend-of-the-court brief, the American Civil Liberties Union of Pennsylvania argued that artistic expression is often disturbing, offensive, and shocking.

"This is especially true of rap, Knox's musical genre," attorneys wrote. "As scholars of the genre have described it, rap is a form of political expression that gives voice to urban poverty, street crime, and limited life options, and a criminal justice system that sweeps up young men of color."

To determine if the song represents a true threat, the ACLU brief continued, the court must determine the defendant's state of mind.

"A review of the record reveals that the commonwealth did not meet this standard, failing to establish that Knox intentionally, with purpose, expressed and communicated a terroristic threat."

pward@post-gazette.com, 412-263-2620 or on Twitter: @PaulaReedWard