Should Government Criminalize Violent Artistic Expression?

From Clannco:

Think of an artwork, song, film, video, poster, or photograph. In fact, with the omnipresence of social media, think of expression that any person—layperson or self-proclaimed artist—may disseminate into public space and which may be perceived as threatening to a group or individual. The creator of this expression may believe that her expression is just a “passive” and aesthetic expression of her thoughts and feelings and not an expression with intent to cause actual harm to a person or group. However, that person or group may believe, right or wrongly, that the expression constitutes a true threat against them. How then do we assess whether this threatening expression is in fact “true”?

In November 2013, a Pennsylvania trial court convicted a young, black rap artist, Jamal Knox, aka “Mayhem Mal,” for terroristic threats, witness intimidation, and conspiracy to commit terroristic threats. Knox appealed his conviction but the Pennsylvania Supreme Court affirmed the trial court. The conviction was based solely on the content of a song created in 2012 by Knox and Rashee Beasley, aka “Soldier Beaz,” that was uploaded to Facebook and Youtube. Knox’s song, “Fuck tha Police”—an obvious homage to NWA’s seminal 1988 release—contains lyrics about police generally as well as two Pittsburgh police officers who were involved in arresting Knox in 2012. The song lyrics expressed, in part, “I’ma jam this rusty knife all in his guts and chop his feet,” “artillery to shake the mother fucking’ streets,” and in relation to a police officer’s “shift over at three and I’m gonna fuck up where you sleep.” A Pittsburgh police officer who had been monitoring Knox and Beasley’s online presence discovered the song three days later, leading to the criminal charges against Knox and Beasley.

Can we objectively believe that Knox’s song constitutes a true threat? I don’t think so. In fact, Knox’s song presents us with a long standing tradition not only in rap but also other music genres (think heavy metal, punk, country) of including what some individuals deem to be violent and threatening lyrics.

. . . .

There is widespread disagreement among federal and state courts as to how to assess whether a statement is a “true threat” and thus unprotected by the First Amendment. Most courts apply what is called an objective standard, where the government is required to show that a reasonable person would regard the statement as a sincere threat. A minority of courts apply the subjective standard, which requires the government to show only the speaker’s intent to threaten. The U.S. Supreme Court had provided us with an answer to this question before, holding, in Watts v. United States (1969) that the First Amendment protects statements that a reasonable person would not regard as threatening. However, as often happens in Supreme Court jurisprudence, in a 2003 case, Virginia v. Black, concerning the constitutionality of a Virginia statute that criminalized the burning of a cross in public view “with the intent of intimidating any person,” the U.S. Supreme Court confused years of precedent by holding that true threats were “those statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” This confusion led some courts to read Black to mean that the standard now is purely subjective, and thus the government must show only the speaker’s subjective intent to threaten. Both Pennsylvania courts applied the “subjective” test in convicting Knox.

. . . .

Allowing the government to regulate expression that is in fact threatening to a person or group is reasonable. However, and as with any form of government action, this permission to regulate must be narrowly tailored. Allowing the government to convict and incarcerate individuals for expression that is not objectively threatening will restrain artistic speech and is contrary to First Amendment principles. In fact, the U.S. Supreme Court itself agreed, stating in Virginia v. Black that a ’hallmark’ of the constitutional right to free speech is “to allow ‘free trade in ideas’—even ideas that the overwhelming majority of people might find distasteful or discomforting.”

Link to the rest at Clannco


6 thoughts on “Should Government Criminalize Violent Artistic Expression?”

  1. “Should Government Criminalize Violent Artistic Expression?”

    Sure, they can start with KKK rallies and end with SJWs opening their mouths …

    There, that should annoy just about everyone! 😉

  2. The hit man manual by Paladin Press is the only case I can think of where a publisher was judged liable for violent expression, in this case because of crimes a reader committed. The book was billed as a how-to guide for a career as a hit man, and whaddyaknow, some readers used it to kill some people.

    I gather the publisher thought they could win the case, but their insurance company wasn’t willing to try and find out. So they settled with the victims, and the publisher withdrew the book.

    As for “threatening speech,” I had always understood that “threatening” referred to threats against specific people: “I want to kill Officer Joe Schmoe” vs. “I want to kill the police.”

    Then again, the Secret Service will take “I want to kill the president” seriously, but notice: 1) “the president” is a specific person, and 2) historically, some people actually go ahead and try (Reagan), and others go ahead and succeed (Kennedy). Every so often an idiot has to learn the hard way that the Secret Service will investigate this particular speech.

    I think plane personnel are similarly humorless, because “I have a bomb” is similar to shouting “fire” in a crowded theater, and hijackers have historically said similar things. But these days, it’s the passengers who will deliver the beat down. Unless you’re flying United 🙂

    • Even they, they don’t suppress the speech. After all, if they don’t let ’em speak they wouldn’t know who to investigate.

      All these advocates keep forgetting that keeping people from saying things does nothing to keep them from thinking them or acting on them.

    • I don’t recall anyone going on trial for such a threat. Just a visit from the Secret Service, which I’m almost positive has happened to one celebrity. I’m prepared to stand corrected on that, though.

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