"One man's vulgarity is another's lyric," the Supreme Court crooned in 1971, in a decision that declared public, four-letter political criticisms—like "Fuck the Draft"—to be protected speech under the First Amendment. But last week, a very different Supreme Court declined to hear the appeal of Jamal Knox, a Pittsburgh rapper sentenced to two to six years in prison for his lyrics.
Knox, who performs under the name Mayhem Mal, was convicted in 2013 on two counts of terroristic threats and two counts of witness intimidation for his rhymes on "Fuck the Police." He recorded the song with fellow Pittsburgh rapper Soulja Beaz (Rashee Beasley) while the two were awaiting trial on gun and drug charges in 2012.
The prosecution focused on lines delivered by Knox that named the arresting officers, and those that it viewed as true threats of violence, including:
Let's kill these cops cuz they don't do us no good / pullin out your Glock out 'cause I live in the 'hood.
So now they gonna chase me through these streets / And I'ma jam this rusty knife all in his guts and chop his feet / You taking money away from Beaz and all my shit away from me / Well your shift over at three and I'm gonna fuck up where you sleep.
The legal concept at the center of the Knox case is what's known as the "true threat" doctrine, which has its origins in the 1969 Supreme Court ruling Watts v. United States. In Watts, the court found a draft protester's rallying cry that, were he ever inducted into the army, "the first man I want to get in my sights is LBJ" to be political hyperbole: Within the context it was delivered, it was not a true threat and thus was protected speech.
In its 2018 opinion affirming the trial court's decision in the Knox case, the Pennsylvania Supreme Court denied the rapper any artistic imprimatur, declaring that his lyrics were real threats of violence because they supposedly did not include "political, social, or academic commentary, nor are they facially satirical or ironic."
Knox and his attorneys disagree, arguing that his lyrics fall within his First Amendment right to artistic expression—and shouldn't be taken literally. So do a group of prominent scholars and hip-hop artists—including Killer Mike, Chance the Rapper, 21 Savage, and Meek Mill—who signed onto a brief petitioning the Supreme Court to hear Knox's case. The blistering and thorough petition accuses the Pennsylvania courts of being "deeply unaware of popular music generally and rap music specifically."
"Jamal Knox didn't intend to harm those officers any more than Watts intended to shoot LBJ; millions of young rappers adopt the gangsta persona, this stage bravado that threatens all kinds of people, places, and things—but never intends to carry out those threats," says andre cummings, a law professor at the University of Arkansas–Little Rock and co-editor of Hip Hop and the Law. "It is satirical and political."
But, familiar or not, courts have a long history of criminalizing hip-hop, and of taking rap lyrics literally but not seriously as art. "That notion, whether for particular lyrics in a case or about hip-hop more broadly is one that we have heard from many judges, either expressly or impliedly," says Andrea Dennis, a law professor at the University of Georgia and co-author of the forthcoming Rap on Trial. (Dennis also signed the amicus brief filed on Knox's behalf.) "Courts frequently undervalue or completely dismiss the artistic aspects of the music, and its political and historical context."
The Supreme Court's declining to hear the Knox case isn't an endorsement of the lower court's ruling, at least explicitly. But it probably indicates a lack of conflict among lower courts regarding the case's central questions. The Supreme Court only hears about 1 percent of the roughly 8,000 cases submitted for review each term, and, as such, the court generally only takes up cases involving a legal question that circuit courts have differed on.
The Supreme Court did recently address a true threat case involving rap lyrics. In 2015, it ruled that Anthony Elonis' verses about murdering his soon-to-be-former wife—posted on Facebook under the nom de cypher Tone Dougie—were not a true threat under federal threat laws because he did not post them with threatening intent. It was not enough, the court ruled, that a reasonable person might interpret them as a threat: Elonis had to mean it as a threat too.
However, ruling narrowly, the Supreme Court did not address the larger question of whether prosecution of Elonis' lyrics was a violation of his First Amendment rights. The Knox appeal was an attempt to get the Supreme Court to take up the First Amendment question.
"The amicus brief filed by Killer Mike and others was essentially begging the Supreme Court to redefine the true threat doctrine, because there is still ambiguity out there as to whether the First Amendment protects this kind of speech," cummings says.
For decades before the Elonis and Knox cases, courts have frequently allowed rhymes to be presented as confessions of other crimes, evidence of motive, or to prove gang affiliation. The earliest admission of lyrical evidence that Dennis is aware of is a drug case from 1991. Many of the lyrical evidence cases since then, she says, have involved homicide, assault, drugs, and gang-related charges. With very few exceptions, they involve people of color.
The lyrics of many defendants, including Antwain Steward and Phillip Cheatham Jr., have been treated as literal evidence of criminality. When lyrics are submitted as evidence, it's usually permitted, conviction usually results, and appeals are usually denied, Dennis says. She sees the lyrical evidence cases as direct precursors to the more recent "true threat" cases like Knox's: They set the precedent for a decontextualized presentation of rap lyrics in court, and for non-artistic interpretations by courts. "Prosecutors can play the song. Or they can type out what they think the lyrics are," Dennis said, noting that—as in the Knox hearings—prosecutors usually opt for the latter. "There is a distinct difference between listening to a song in a certain context and having some other party read sterile words on a page aloud. They're not being understood in their artistic context."*
A high-profile exception—where lyrical evidence was treated as art—was the ruling by the Supreme Court of New Jersey that the admission of Vonte Skinner's lyrics as evidence in his murder trial was "highly prejudicial." (Skinner was later convicted in a new trial.) "One would not presume that Bob Marley, who wrote the well-known song 'I Shot the Sheriff,' actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story 'The Tell–Tale Heart,' simply because of their respective artistic endeavors on those subjects," the justices wrote in their ruling. "Defendant's lyrics should receive no different treatment."
Exceptions are also sometimes made for famous rappers, whose work has already been stamped as art by millions and thus tends to get more of the benefit of the doubt. A judge reportedly dismissed an attempt to use Philadelphia rapper Beanie Sigel's lyrics in court, saying that he had been using an artistic persona. In 1997, a Texas judge ruled that 2Pac and his record label were not responsible for the death of a state trooper, who was shot while the killer was listening to "Soulja's Story."
Dennis and cummings say that they've never seen a court treat lyrics from any other genre with the literalism and criminal suspicion often accorded to hip-hop—even in genres, such as country and metal, which sometimes have violent lyrics. The problem is that rap songs are generally not being presented to courts—which tend to be monochromatic—with proper contextualization in hip-hop and Black American cultural traditions.
Killer Mike's Supreme Court petition places Knox's raps as a descendent of "'the dozens'—verbal competitions dating back more than a century in which two opponents trade insults, often in rhyme, until a winner emerges." And superficially violent boasts like Knox's have been a common trope in gangsta and street rap going back decades, cummings says, and courts should understand them as such.
Additionally, courts tend to ignore the symbolic and practical role that police play in many black communities. "Courts tend to treat [police who've been named in rap songs] like ordinary citizens who've been called out, rather than public authority figures who have been engaging in some sort of misconduct that's worthy of political and social criticism," Dennis says.
Before lyrical evidence cases emerged en mass alongside the mainstream rise of gangsta rap, police and courts were attempting to criminalize hip-hop: 2 Live Crew faced obscenity charges in 1990; police departments pressured venues to block Ice-T from performing, Dennis says; the Federal Bureau of Investigation sent NWA's record label an ominously disapproving letter.
"Even in the context of musical borrowing—sampling and musical composition—hip-hop has been attacked ruthlessly by the judiciary," cummings says. "When borrowing has a rich tradition in music since before Bach!"
Dennis worries that defamation cases involving rap lyrics might be the next evolution in the criminalization of hip-hop. cummings, for his part, sees only one way for the legal trend to pivot: Until we start getting a lot more African-American and Latino judges on the court, and you continue to have all white judges making these determinations, you're going to to end up with a glaring blind spot."
*Update—April 26th, 2019: This article has been updated with the correct spelling of Antwain Steward's name.