Should Government Criminalize Violent Artistic Expression?
in Watts v. United States (1969) that
the First Amendment protects statements that a reasonable person would not
regard as threatening. However, as often happens in Supreme Court jurisprudence,
in a 2003 case, Virginia v. Black, concerning
the constitutionality of a Virginia statute that criminalized the burning of a
cross in public view “with the intent of intimidating any person,” the U.S.
Supreme Court confused years of precedent by holding that true threats were
“those statements where the speaker means
to communicate a serious expression of an intent to commit an act of
unlawful violence to a particular individual or group of individuals.” This
confusion led some courts to read Black
to mean that the standard now is purely subjective, and thus the government
must show only the speaker’s subjective intent to threaten. Both Pennsylvania
courts applied the “subjective” test in convicting Knox.
Through his law firm, Arnold &
Porter, Knox
appealed his conviction to the U.S. Supreme Court last week. The
Court will soon decide whether or not to hear Knox’s appeal. The U.S. Supreme
Court should hear this case and clarify when a statement actually constitutes a
“true threat.”
There have also been four amicus curiae
briefs (“friend of the court” briefs) in support of Knox: one filed on behalf
of other rap artists and one on behalf of law professors, curators, legal and
artistic practitioners and art historians committed to protecting the First
Amendment rights of all speakers and artists. In full disclosure, I
have signed on to the latter brief, spearheaded by Erin
Murphy of the law firm Kirkland & Ellis, which argues that a
context-sensitive inquiry into whether speech constitutes a punishable “true
threat” is necessary to safeguard our freedom of expression. Two additional
amicus curiae briefs were also filed, one by the National
Association of Criminal Defense Lawyers and another jointly
by the Cato Institute and The Rutherford Institute.
Allowing the government to regulate
expression that is in fact threatening to a person or group is reasonable.
However, and as with any form of government action, this permission to regulate
must be narrowly tailored. Allowing the government to convict and incarcerate
individuals for expression that is not objectively threatening will restrain
artistic speech and is contrary to First Amendment principles. In fact, the U.S. Supreme Court itself agreed, stating in Virginia v. Black that a ’hallmark’ of
the constitutional right to free speech is “to allow ‘free trade in ideas’—even
ideas that the overwhelming majority of people might find distasteful or
discomforting.”
It is bad enough that we live in a time where some artists are
censoring speech and demanding the destruction of art. For this moral
imperative to be legally enforced and criminally punished is beyond the rule of
law and the dictates of the U. S. Constitution.
The case is Jamal
Knox v. Pennsylvania.
Page 2 of 2 | Previous page