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.

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