Professor defends rapper's free speech in Supreme Court case

“Hip-hop is a way for people who have every right to be angry at the police to have an expressive outlet,” said Erik Nielson, associate professor and assistant chair of liberal arts.

Rap music – and hip-hop in general – is undoubtedly one of the most popular musical genres in the U.S. today. In fact, Nielson regards rap music as the most important musical phenomenon to occur in the past half-century. 

But recently, Nielson, who is a scholar of African-American and Latin American literature, specializing in rap music and hip-hop culture, has found himself defending the art form, serving as an expert witness in criminal cases that involved rap lyrics as evidence.

On April 15, 2019, the U.S. Supreme Court declined to hear the First-Amendment case of Pittsburgh rapper Jamal Knox, according to its website. Knox was convicted in November 2013 on the charge of making “terroristic threats” against two Pittsburgh police officers in a 2012 song, “F--- the Police,” according to the Supreme Court of Pennsylvania. The court found that the lyrics of his song constituted a “true threat” against the officers.

Nielson, alongside Killer Mike, Chance The Rapper, 21 Savage, Meek Mill and other acclaimed hip-hop artists and scholars, had filed a friend-of-the-court brief on March 6 to the U.S. Supreme Court that urged the Court to view rap music as artistic and political expression that is protected by the First Amendment. 

In the brief, Nielson argued that Knox was convicted for “making a political statement in the form of a song that no reasonable person familiar with rap music would have interpreted as a true threat of violence.” 

The case first began in April 2012, when Jamal Knox and Rashee Beasley, who rap under the stage names Mayhem Mal and Soldier Baez respectively, were arrested in Pittsburgh on firearm and drug related charges, according to the Pennsylvania Supreme Court’s decision.

The arresting officers, Michael Kosko and detective Daniel Zeltner, were scheduled to testify against Knox and Beasley. However, before the trial, Knox and Beasley recorded a song titled “F--- The Police”. (An unaltered version of the song can be found on page three of the Pennsylvania Supreme Court’s decision.)

The original song is heavily anti-police and depicts violence against police officers. Both officer Kosko and Zeltner are named in the first verse. While monitoring Beasley’s Facebook page, officer Aaron Spangler of the Pittsburgh Police Department discovered a Youtube link to the song and informed Kosko and Zeltner. Knox and Beasley were arrested again and each charged with two counts of terroristic threats and one count of witness intimidation, according to the Supreme Court of Pennsylvania. 

The commonwealth of Pennsylvania presented the video on Nov. 13, 2013, to a non-jury trial in a trial court to warrant the charges against Knox and Beasley. Kosko testified that the video left him “shocked” and “nervous”, and was one of the reasons he left the Pittsburgh police force. Zeltner, who was given time off and a security detail, said the video made him concerned for his safety, as well as the safety of his family and fellow officers. The video was the only piece of evidence introduced by the commonwealth.

Knox argued in that court on Nov. 19, 2013, that both charges were unconstitutional and that his lyrics were protected speech under the First Amendment. Two days later, the trial court “found beyond a reasonable doubt that Knox and Beasley specifically intended to intimidate the officers so as to obstruct the administration of criminal justice.” 

Knox was found guilty on counts of terroristic threats, witness intimidation and possession with intent to distribute, according to the Pennsylvania Supreme Court.

In an appellate court in 2015, Knox again argued that his lyrics were protected under the First Amendment. Additionally, he argued the commonwealth had not presented sufficient evidence to convict him of witness intimidation, claiming he was unaware the video would be made public online. 

The court rejected his argument again, holding that the song amounted to a “true threat directed at the victims.” 

Knox appealed to the Pennsylvania Supreme Court, raising both issues, but the court only granted review of whether the song was protected under the First Amendment.  

In Commonwealth v. Knox, Knox, who “considers himself a poet, musician and entertainer,” again argued that he never intended for the police to hear the song, and that the song was artistic and political in nature, not meant to be taken literally. 

“Rap music serves as [Knox’s] vehicle for self-expression, self-realization, economic gain, inspiring pride and respect from peers, and speaking on public issues including police violence, on behalf of himself and others,” according to the court document. 

On August 21, 2018, the Pennsylvania Supreme Court held that Knox’s song was not speech protected under the First Amendment, citing the “true-threat doctrine”, which established that threats of violence are not protected under the First Amendment in order to protect people from the disruption that fear of violence causes. 

The court said it acknowledged the historical and artistic context of rap music, admitting rappers often perform under stage personas and use fictitious, exaggerated language to boast. But because Knox identified and made direct threats against officers who were set to testify against him, the court believed Knox’s song was not intended to be a work of fiction. 

“People have no trouble understanding other forms of music and art, but many people negate rap music as an art form right off the top, they assume these young black kids aren’t capable of sophisticated creative output, that they aren’t really artists, so I think it is easier for people to take rap lyrics literally, as we are seeing right now,” Nielson said.

Thomas G. Saylor, chief justice of the Pennsylvania Supreme Court, wrote that the song is of “different nature and quality,” and does not contain “political, social or academic commentary.”

Nielson was surprised that the Pennsylvania Supreme Court did not believe Knox’s song had any political or social commentary. 

“One of the things that prompted this song to be created in the first place was the shooting of Jamal Knox’s best friend in a case where it turns out police had the wrong guy and his friend is paralyzed for life as a result,” Nielson said.

Over the past few years, Nielson has been involved in cases where rap lyrics were introduced as evidence, but he said this case was different. Rap lyrics are typically used to establish the artist’s guilt in an underlying crime, Nielson said. However, in Knox’s case, the lyrics are the crime. 

“This truly is a case where rap meets the criminal justice system,” Nielson said. “Knox was punished for his words and this is the first case that I’ve worked on that is clearly about arguing for rap music as an art form protected by the First Amendment.”

With the U.S. Supreme Court’s decision to decline hearing Knox’s case, the constitutional question remains outstanding: What is the appropriate standard to determine if and when a statement constitutes a true threat of violence that will not be protected by the First Amendment? This confusion leaves artists, especially rap artists, vulnerable to criminal prosecution. 

“You don’t have to like rap music, but take my word for it, we are better for it,” Nielson said. “If you are using rap lyrics as evidence, you are almost always compromising someone’s right to a fair trial.”

Nielson expressed his concerns over the relationship between rap music and the U.S. criminal justice system.

“What leads me to go do this type of work is that rap music and hip-hop have been so positive for so many people that I worry if it’s under attack, especially by our criminal justice system, which is very very good at putting people away for long periods of time, I worry we all lose something really valuable,” Nielson said. “[Rap music] has had a net positive impact on our nation, especially in communities that experience the things rap lyrics are chronicling,”

Nielson’s newest book, “Rap on Trial,” will be out November 2019. 

Contact features writer William Roberts at william.roberts@richmond.edu.