Should Government Criminalize Violent Artistic Expression?

Think of an artwork, song,

film, video, poster, or photograph. In fact, with the omnipresence of social

media, think of expression that any person—layperson or self-proclaimed artist—may

disseminate into public space and which may be perceived as threatening to a

group or individual. The creator of this expression may believe that her

expression is just a “passive” and aesthetic expression of her thoughts and

feelings and not an expression with intent to cause actual harm to a person or

group. However, that person or group may believe, right or wrongly, that the

expression constitutes a true threat against them. How then do we assess

whether this threatening expression is in fact “true”?

In November 2013, a

Pennsylvania trial court convicted a young, black rap artist, Jamal Knox, aka

“Mayhem Mal,” for terroristic threats, witness intimidation, and conspiracy to

commit terroristic threats. Knox appealed his conviction but the Pennsylvania

Supreme Court affirmed the trial court. The conviction was based solely on the

content of a song created in 2012 by Knox and Rashee Beasley, aka “Soldier Beaz,”

that was uploaded to Facebook and Youtube. Knox’s

song, “Fuck tha Police”—an obvious homage to NWA’s seminal 1988

release—contains lyrics about police generally as well as two Pittsburgh police

officers who were involved in arresting Knox in 2012. The song lyrics

expressed, in part, “I’ma jam this rusty knife all in his guts and chop his

feet,” “artillery to shake the mother fucking’ streets,” and in relation to a

police officer’s “shift over at three and I’m gonna fuck up where you sleep.” A

Pittsburgh police officer who had been monitoring Knox and Beasley’s online

presence discovered the song three days later, leading to the criminal charges

against Knox and Beasley.

Can we objectively believe

that Knox’s song constitutes a true threat? I don’t think so. In fact, Knox’s

song presents us with a long standing tradition not only in rap but also other

music genres (think heavy metal, punk, country) of including what some

individuals deem to be violent and threatening lyrics. (The list of songs

including “violent” and “threatening” lyrics is of course endless. The author

encourages readers to list their suggestions in the comments box to this

article.) Indicative of this misreading is the Pennsylvania courts’ focus on

only the lyrics of “Fuck tha Police” without paying any due attention to the musical

composition and the musical elements of the singing. By intentionally

neglecting these two crucial elements of the song, the poetic nature of Knox’s

“Fuck tha Police”—i.e., the artistic expression—is butchered, if not completely

obliviated. Taken out of its

aesthetic and musical context, arguing that the lyrics in a song alone constitute a “true threat” is tantamount to

claiming that when the Museum of Modern Art exhibits Andy Warhol’s Gun (1988) it is using a weapon in a

threatening manner (a criminal offense).

(Andy Warhol. Gun, 1981-1982)

There is widespread

disagreement among federal and state courts as to how to assess whether a

statement is a “true threat” and thus unprotected by the First Amendment. Most

courts apply what is called an objective standard, where the government is

required to show that a reasonable person would regard the statement as a

sincere threat. A minority of courts apply the subjective standard, which

requires the government to show only the speaker’s intent to threaten. The U.S.

Supreme Court had provided us with an answer to this question before, holding,

in Watts v. United States (1969) that

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