FAN 202 "True Threats" Cert Petition Presented to SCOTUS in Rap Music Case

Last month, Lisa S. Blatt, counsel of record, filed a cert. petition in Knox v. Pennsylvania. The issue in that case is: "This case raises a critically important and frequently recurring First Amendment question that has intractably divided federal courts of appeals and state high courts: whether, to establish that a statement is an unprotected 'true threat,' the government must show objectively that a 'reasonable person' would regard the statement as threatening, or whether it is enough to prove only the speaker’s subjective intent to threaten."

"The question presented is whether, to establish that a statement is a true threat unprotected by the First Amendment, the government must show that a “reasonable person” would regard the statement as a sincere threat of violence, or whether it is enough to show only the speaker’s subjective intent to threaten."

Pertinent Facts:

Petitioner Jamal Knox, a rap music artist who performs under the stage name "Mayhem Mal," has released rap albums and singles that are available on platforms like Spotify and Apple Music. Consistent with the rap genre, Knox has acknowledged that some of his music is controversial, but has described his lyrics as part of "put[ting] on an image" and an effort to "sell records."

In 2012, Knox and Rashee Beasley, another rap artist whose stage name is "Soldier Beaz," formed a rap group called "Ghetto Superstar Committee." In April 2012, Knox and Beasley were arrested by Pittsburgh police and charged with, among other things, possessing controlled substances and possessing an unlicensed weapon. Later, the teenagers wrote a song about it.  They named the song "F**k the Police," —an obvious homage to the world-famous rap song "F**k tha Police" by the rap group N.W.A., which Rolling Stone hailed as one of the 500 Greatest Songs of All Time. . . . 

Consistent with the rap music genre, Knox and Beasley’s song contains violent rhetoric about police generally as well as the two Pittsburgh police officers involved in their arrest specifically.

In one verse, Knox raps, in a line that rhymes with "street," that "I’ma jam this rusty knife all in his guts and chop his feet.” He further raps, in a line that rhymes with "me," that one officer’s “shift over at three and I’m gonna f**k up where you sleep.” . . . The song further references "bustin’ heavy metal," "kill him wit a Glock," "artillery to shake the mother f***kin’ streets," and "Jurassic Park."

In November 2012, Beasley uploaded the song to Facebook and YouTube accounts associated with his "Soldier Beaz" rap artist persona. A Pittsburgh police officer who had been monitoring Knox and Beasley’s online presence discovered the song three days later. . .

A few days after Beasley posted the song online, the Commonwealth of Pennsylvania charged Knox and Beasley with two counts of terroristic threats, two counts of witness intimidation, two counts of retaliation against a witness, and one count of conspiracy (with each other) to commit terroristic threats. The charges were based solely on the content of the song.

(internal citations omitted.)

→ State Supreme Court Opinion: Commonwealth v. Knox (Pa. Supreme Ct., 2017)

$250 Million Libel Lawsuit Against The Washington Post

The case is Sandman v. WP Company / The Washington Post (E. Dist, KY, N. Div, filed Feb. 19, 2019). The case concerns plaintiff 16-year-old Nicholas Sandmann. The teenager was involved in a controversial and much-disputed encounter with a Native American activist at the Lincoln Memorial. The lawsuit alleges that The Washington Post “targeted and bullied” Nicholas Sandmann in order to embarrass President Trump.

The complaint alleges that in “a span of three (3) days in January of this year commencing on January 19, the Post engaged in a modern-day form of McCarthyism by competing with CNN and NBC, among others, to claim leadership of a mainstream and social media mob of bullies which attacked, vilified, and threatened Nicholas Sandmann (“Nicholas”), an innocent secondary school child." The Plaintiff seeks $250 million in actual and punitive damages.

→ Professor Alan Dershowitz: “I'd be interested to see how the case unfolds. I mean they're asking for a lot of money, I don't think that's going to be taken too seriously. . . But I do think that they have a significant case and it will be interesting to see how the Post defends against their reporting in the case. . . . The media has to be responsible for their reporting particularly when you have kids who have no ability generally to defend themselves against media reporting." (Source: The Hill)

→ Related: Paul Farhi, The Washington Post sued by family of Covington Catholic teenager, Washington Post (20 Feb. 2019)

→ Greg Norman, Covington Catholic student's lawsuit against Washington Post: A 'significant case' or not? Experts weigh in, Fox News (Feb. 26, 2019)

→ Irina Manta, Nick Sandmann Sues Washington Post for $250 Million, The Volokh Conspiracy (Feb. 20, 2019)

Cass Sunstein: “Clarence Thomas has a point about free-speech law”

“With his stunning plea for reconsideration of New York Times v. Sullivan – the landmark free-speech decision insulating the press, and speakers in general, from most libel actions – Justice Clarence Thomas has . . . performed a public service. . . .”

“Thomas is right to point out that the constitutional foundations of New York Times v. Sullivan are not entirely firm. New and creative thinking, designed to protect people from having their reputations shattered, is very much in order. . . .”

→ Full text:  Twin Cities Pioneer Press (Feb. 25, 2019)

→ Related: Marty Lederman, Justice Thomas's Attack on New York Times v. Sullivan: Old Originalism in New Originalist Garb, Balkinization (Feb. 23, 2019)

→ Related: Aimee Edmondson, In Sullivan's Shadow: The Use and Abuse of Libel Law during the Long Civil Rights Struggle, University of Massachusetts Press (Aug. 2, 2019)

Institute for Free Speech Analyses Disclosure & Related Provisions of Proposed Federal Bill

• Eric Wang, Analysis of H.R. 1 (Part One): “For the People Act” Replete with Provisions for the Politicians
• Bradley A. Smith, Analysis of H.R. 1 (Part Two) Establishing a Campaign Speech Czar and Enabling Partisan Enforcement: An Altered FEC Structure Poses Risks to First Amendment Speech Rights
• Bradley A. Smith, Analysis of H.R. 1 (Part Three): New Restrictions Target Speech by All Groups Under the Guise of ‘Stopping Super PAC-Candidate Coordination’

Scholarly Articles

• William D. Araiza, Invasion of the Content Neutrality Rule, SSRN (Feb. 15, 2019)

New & Notable Blog Posts

• David L. Hudson, Jr., 4th Circuit rejects challenge by student who objected to Islam study in World History course, First Amendment Encyclopedia (Feb. 21, 2019)
• David L. Hudson, Jr., Court rejects gang leader’s claim that his rap videos could not be used as evidence, First Amendment Encyclopedia (Feb. 21, 2019)
• David L. Hudson, Jr., Free speech is no defense for teen who urged friend to commit suicide, MA high court rules, First Amendment Encyclopedia (Feb. 20, 2019)
• Amy Howe, Argument preview: Justices to consider whether First Amendment applies to public-access channels, SCOTUSblog (Feb. 19, 2019)

In the News

• Tinker Turns 50: Celebrating Half A Century Of Student Free Speech, First Amendment Watch (Feb. 25, 2019) (includes video interviews)

Upcoming Event: Floyd Abrams at A.U. Law

On March 4th at noon American University Washington College of Law will host a Q&A event with Floyd Abrams to celebrate 100 years of Supreme Court free speech decisions. Professor Stephen Wermiel will moderate the event, which will be held in Claudio Grossman Hall.

YouTube Video Series (Hate Speech Episode)

• Eugene Volokh, "Free Speech Rules," My New YouTube Video Series -- Episode 2 (Hate Speech), The Volokh Conspiracy (Feb. 20, 2019)

News Items

• K.S. Bruce, How the First Amendment Can Tame Big Tech, RealClear (Feb. 27, 2019)
• Does the First Amendment apply to public-access cable?, The Economist (Feb. 26, 2019)
• Tucker Higgins, Supreme Court justices seem unlikely to extend First Amendment protections to users of social media platforms such as Facebook and Twitter, CNBC (Feb. 25, 2019) - Google Search

2018–2019 Term: Free Expression & Related Cases

Cert. Granted

• Iancu v. Brunetti
• Nieves v. Bartlett

Pending: Cert. Petitions 

• Missouri Ethics Commission, et al. v. Free and Fair Election Fund
• Knox v. Pennsylvania
• Abbott, et al. v. Pastides (reply brief here)
• Uradnik v. Inter Faculty Organization
• In-and-Out Burger v. NLRB
• The Colorado Independent v. District Court
• Tate v United States
• Utah Republican Party v. Cox

Cert. Denied

• McKee v. Cosby, Jr. (Thomas, J., concurring in denial of cert. with opinion)
• Kennedy v. Bremerton School District
• Lair v. Motil
• Lair v. Mangan
• Berninger v. FCC (net neutrality)
• Montanans for Community Development v. Mangan
• Zimmerman v. Austin

FOIA: Review Granted 

• Food Marketing Institute v. Argus

Free Expression Related Cases: Review Granted

• Nieves v. Bartlett (probable cause & first amendment & retaliation)

Pending Free Expression Related Cases

• Manhattan Community Access Corp. v. Halleck
• Rucho v. Common Cause (standing & gerrymandering)
• Manhattan Community Access Corp. v. Halleck (state action)

Last Posted FANs

#201.2: Robert Corn-Revere, “Can the President Treat the Press as the Enemy of the People?”

#201.1: Congressman Raskin Introduces Bill to Limit Reach of Citizens United

Last Scheduled FAN #201: Justice Thomas Targets Sullivan Ruling — a “policy-driven decision masquerading as constitutional law”