“You never thought that hip hop would take it this far”: Artists and scholars implore SCOTUS to de-criminalize rapper’s lyrics

//“You never thought that hip hop would take it this far”: Artists and scholars implore SCOTUS to de-criminalize rapper’s lyrics

By Josh Taylor

Last week, the Supreme Court was schooled on the history of hip hop culture and rap music and asked to review the criminal charges against a rapper stemming from violent and threatening lyrics.  The schooling came from a brief by a varied mix of amici curiae in the case of Knox v. Pennsylvania.  The petitioner, Jamal Knox, was arrested on drug, weapon, and traffic charges in Pittsburgh after police noticed several traffic infractions and chased and stopped his vehicle.  Months after the incident, Knox released a graphic rap song threatening the arresting officers by name.  Knox was charged with making terroristic threats, intimidation of witnesses, and criminal conspiracy under Pennsylvania state law.  All levels of the Pennsylvania court system upheld Knox’s conviction, and he appealed to the U.S. Supreme Court early in 2019.  The question he presented to the Court was whether a “true threat,” unprotected by the First Amendment, should be judged by a subjective standard reliant on the intent of the person speaking (or rapping) to make a threat and the very standard the Pennsylvania courts used to convict Knox, or an objective “reasonable person” standard reliant on a reasonable hearer taking the threat as a “true threat.”

Since his petition for cert, many amici have come forward with intense interest in the adjudication of this case.  A group of rap supporters filed their brief on March 6, 2019.  That group consisted of rap artists including Killer Mike, Chance the Rapper, Meek Mill, and 21 Savage, and scholars from various universities and even seminaries.  The brief, “focused on and grounded in the work of leading rap music scholars, demonstrates the interpretative problems associated with rap lyrics,” the group states.  The brief begins with a beguiling and enlightening history, however short, of rap’s origins and Knox’s song’s relationship to the famously controversial N.W.A. song by a similar title and also concerning the police.  It then presents a nuanced and carefully laid out explanation of rap music as a non-literal literary art form.  Indeed, the amici argue, rap “manipulates language to the point that it complicates or even rejects literal interpretation.”  The brief outlines how Knox’s song should not be taken literally as a true threat of violence against this backdrop.  “In short, this is a work of poetry,” they conclude.  “It is told from the perspective of two invented characters in the style of rap music, which is (in)famous for its exaggerated, sometimes violent rhetoric, and which uses language in a variety of complex ways. It is not intended to be taken literally, something that a reasonable listener with even a casual knowledge of rap would understand.”

With a factual analysis complete, the group then asks the Court to take Knox’s case and provide a definitive and dispositive interpretation of what constitutes a “true threat” under the law.  More importantly, they implore that the Court adopt a standard that looks at more than “mere intent” of the speaker.  The brief outlines prominent research the group argues proves that rap lyrics are taken as more threatening than the same lyrics in other types of music, i.e., country.  Indeed, “research reveals that racial stereotypes can play a significant role in our perceptions of rap music and the people who create it.”  For that reason, the group argues, certain safeguards are necessary.  One such safeguard is to analyze rap music with a standard appropriately accounting for its history and meaning.  The last paragraph of the brief illuminates the underlying issues with this particular case and gives voice obviously relatable to the artists that joined this petition: “Jamal Knox’s story is not unique. Across the country, countless young people—often those of color—have found a voice in rap music, too. For some, it also has offered a legitimate career path, one leading away from the violence and despair so frequently chronicled in rap lyrics. If we criminalize those lyrics, we risk silencing many Americans already struggling to be heard.”

The full amici brief filed by Michael Render (‘Killer Mike’), Erik Nielson, and Other Artists and Scholars can be found at the Supreme Court’s website and read here.  All other filings before the Court in this case can be found thanks to scotusblog.com and accessed here.  We will update this post with more on the case should the Supreme Court decide to hear the issue.

By |March 12th, 2019|

About the Author:

For years, Josh has helped lawyers become more organized, productive, and profitable. A trained litigator, Josh came to Smokeball from a large east-coast law firm where his practice focused on franchise, insurance, marine, and general litigation. His work with Smokeball, and his continued passion for what he does each day, is driven by a desire to help lawyers and their staff do better in every way. Knowing well the stress and strain put on today’s legal professional, he regularly focuses on improving work and life in the law. He has traveled the country working with and learning from lawyers and their staff. Josh speaks regularly to bar associations about successful law firm practices and other legal topics. Recent notable engagements have been with the Chicago Bar Association, the Illinois State Bar Association, and the Missouri Bar’s Solo and Small Firm Conference. In addition to his work at Smokeball, Josh serves on the Writing Resource Center staff at The John Marshall Law School. Besides legal technology, his research interests include judicial decision-making, jury decision-making and psychology, and legal writing. He has written and overseen research exploring causal effects of sex/gender on federal appellate court decision-making, and assisted with research for a forthcoming textbook on judicial decision-making. Additionally, Josh sits on the Board of Directors of Chicago-based Community Activism Law Alliance and on the Board of Directors of Chicago Fringe Opera Company. Josh holds his J.D., cum laude, from Washington University in St. Louis, where he served as a Senior Editor of the Wash. U. Law Review, held the prestigious Thompson Coburn Research Fellowship, served as Research Assistant to then-Vice-Dean (now Chancellor) Andrew D. Martin, and clerked at the U.S. District Court for the Eastern District of Missouri. He holds a B.A. in Political Science and a B.M. in Music Performance with Honors Scholar distinction from the University of Connecticut, making him a Huskies basketball fan through and through. Follow Josh’s activity on LinkedIn, and keep up with new articles on the Smokeball Blog.