Weighing in on a First Amendment case that could have significant ramifications for online communications and controversial art forms, The Rutherford Institute has come to the defense of a rap artist who was charged with making terrorist threats after posting a rap song critical of police on social media.
Police had been actively monitoringrapper Jamal Knox’s (a.k.a. “Mayhem Mal”) social media presence when they discovered the song titled “F*ck the Police” and charged Knox and his rap partner with multiple counts of terroristic threats and witness intimidation. The Rutherford Institute’s amicus brief in Knox v. Pennsylvania, filed in conjunction with The CATO Institute, asks the U.S. Supreme Court to review the case and reject an attempt by government officials to expand the definition of “true threats,” making controversial and unpopular political or artistic expression subject to prosecution and suppression by the government.
Affiliate attorneys Ari Savitzky, Paul Vanderslice, Mark C. Fleming, James Bor-Zale, and Rauvin Johl of Wilmer Cutler Pickering Hale and Dorr assisted The Rutherford Institute and CATO with the arguments.
“In totalitarian regimes—a.k.a. police states—where conformity and compliance are enforced at the end of a loaded gun, the government dictates what words can and cannot be used. This is exactly the scenario we’re seeing played out over and over again in America today, where ‘we the people’ are increasingly only as free to speak as a government official or corporate censor may allow,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People.
“Yet nowhere in the First Amendment does it permit the government to limit speech in order to avoid causing offense, hurting someone’s feelings, safeguarding government secrets, protecting government officials, insulating judges from undue influence, discouraging bullying, penalizing hateful ideas and actions, eliminating terrorism, combatting prejudice and intolerance, and the like.”
Rap artist Jamal Knox performs under the name “Mayhem Mal.” Knox teamed up with Rashee Beasley to form the rap group “Ghetto Superstar Committee.” Knox and Beasley wrote, performed and shared songs on social media sites such as Facebook and YouTube that reflected their personal experiences.
In 2012, Knox and Beasley wrote a song about being arrested by Pittsburgh police on drug and weapons charges and shared the song on Facebook and YouTube. The song, titled “F**k the Police,” contained violent lyrical rhetoric regarding the police that is typical of the rap genre and its commentary on the experiences of Black people at the hands of law enforcement. Police discovered the song while monitoring Knox and Beasley’s online activity.
Knox and Beasley were subsequently charged with multiple counts of terroristic threats and witness intimidation. At trial, Knox’s attorneys argued that the rap song and its lyrics were protected by the First Amendment and not “true threats” that can be punished criminally. The court rejected the First Amendment defense.
On appeal, a divided court Pennsylvania Supreme Court upheld the conviction, rejecting the argument that in order for speech to be considered a “true threat” that is unprotected by the First Amendment, a reasonable, objective person would have to consider the speech an actual threat.
In asking the U.S. Supreme Court to review the case, The Rutherford Institute and CATO Institute argue that uncertainty over what constitutes a “true threat” causes a chilling effect on speech, particularly in an age when the government engages in unprecedented monitoring of new and ever-changing forms of expression, online and otherwise.