In his concurring opinion in McKee v. Cosby, No. 17-1542, 2019 U.S. LEXIS 827 (U.S. Feb. 19, 2019), Justice Thomas recently questioned the continuing constitutional authority of New York Times v. Sullivan, 376 U.S. 254 (1964), requiring, under the First Amendment, that public figures prove "actual malice" in order to show defamation under state law. Id. at *2 ("New York Times and the Court’s decisions extending it were policy-driven decisions masquerading as constitutional law."). Justice Thomas is unlikely to persuade a majority of his colleagues to depart with such a bedrock of modern constitutional precedent as Sullivan, but his rebuke of the decision briefly resurrected the all-but-settled discussion. But he may have the opportunity to address Sullivan again, in addressing a question he criticized the plurality for failing to address in Elonis v. United States, 135 S. Ct. 2001, 2011, (2015), which is the standard that should apply to "true threat" cases under the First Amendment. Currently before the Court is a petition for certiorari in Pennsylvania v. Jamal Knox, 190 A.3d 1146 (Pa. 2018), which raises a split among the federal circuits (and state courts) regarding how to evaluate whether a statement constitutes a "true threat" subject to criminal prosecution. And while Sullivan's public figures doctrine has never been expressly applied in the "true threat" arena (it certainly serves as a backdrop), the interesting and unsettled question is whether the Sullivan framework that Justice Thomas decried in McKee, may best serve as a compromise to resolve the current split in the circuits.

The issue of evaluating whether a statement constitutes a "true threat" has been most directly addressed twice by the Supreme Court. First, in Watts v. United States, 394 U.S. 705 (1969), the Supreme Court overturned a conviction under 18 U.S.C. § 871(a) (threats against the President), where the defendant stated "If they ever make me carry a rifle the first man I want to get in my sights is L. B. J.," finding the statement failed to constitute a "true threat," as opposed to political opposition, based upon the fact that "[t]aken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise." Id. at 708 (citing Sullivan, 376 U.S. at 270). Second, in Virginia v. Black, 538 U.S. 343 (2003), in addressing a statute that criminalized cross burning "with the intent of intimidating any person" and a presumption that "[a]ny such burning of a cross shall be prima facie evidence of an intent to intimidate," a plurality of the Court found that "'[t]rue threats' encompass 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," but that the Virginia presumption was overbroad, because "a burning cross is not always intended to intimidate" and "[t]he prima facie provision makes no effort to distinguish among these different types of cross burnings." Id. at 365-66.

After Black, the federal courts have split on how to determine whether a statement constitutes a "true threat," into a majority that continues to apply the Watts objective standard of determining whether a reasonable person would believe the threat was a "true threat," see, e.g., United States v. Martinez, 736 F.3d 981, 986-88 (11th Cir. 2013), and a minority that reads Black to require a specific intent by the speaker to threaten (in addition to the objective standard), see, e.g., United States v. Heineman, 767 F.3d 970, 973, 978 (10th Cir. 2014). Justices of the Supreme Court have also begun to weigh in on the dispute, showing the beginnings of a divide in the Court as well. See Perez v. Florida, 137 S. Ct. 853, 855 (2017) (Sotomayor, J., concurring in the denial of certiorari) ("[T]hese two cases strongly suggest that it is not enough that a reasonable person might have understood the words as a threat—a jury must find that the speaker actually intended to convey a threat."); Elonis , 135 S. Ct. at 2027 (Thomas, J., concurring) ("The objective standard for threats under §875(c), however, helps to avoid this problem by 'forc[ing] jurors to examine the circumstances in which a statement is made.'").

In the case of Pennsylvania v. Jamal Knox, the Pennsylvania Supreme Court created a third, new standard of specific intent, without an express objective requirement. Jamal Knox, a Philadelphia rapper known as Mayhem Mal, was charged and convicted two counts of making terrorist threats under 18 Pa.C.S. §2706(a)(1), for recording (and a co-defendant posting to YouTube) what is most commonly referred to as a "diss" or "beef" track and video directed at the Philadelphia Police Department, and specifically the officers who arrested him. The Pennsylvania Supreme Court analyzed Knox's song, "Fuck the Police," under a specific intent standard. Verses like (1) "This first verse is for Officer Zeltner and all you fed force bitches/And Mr. Kosko, you can suck my dick you keep on knocking my riches/You want beef, well cracker I’m wit it, that whole department can get it," (2) "We makin’ prank calls, as soon as you bitches come we bustin’ heavy metal," and (3) "And I’ma jam this rusty knife all in his guts and chop his feet," the Pennsylvania Supreme Court found both specially individualized to the officers and the Philadelphia Police Department and particularly detailed so as to rebut a claim that the sone was merely meant as fiction, rather than a "true threat."

While those verses are violent and graphic, they are not out of character for the genre of "diss" or "beef" songs among rap artists, not the least of which, the original "Fuck Tha Police," by N.W.A., after which Mayhem Mal's version was modeled: "Huh, a young nigga on the warpath/And when I'm finished, it's gonna be a bloodbath/Of cops, dyin' in L.A. ... I'm a sniper with a hell of a scope/Takin' out a cop or two, they can't cope with me". Likewise, one of the most prolific rap artists, Tupac Shakur, wrote in his lyrics to "Ambitionz As A Rydah":

"Lil' Ceaser, go ask ya homie how I leave ya/Cut your young ass up, leave you in pieces, now be deceased ... Peep how we do it, keep it real, it's penitentiary steel/This ain't no freestyle battle/All you niggaz gettin killed with ya mouths open ... Any of you niggas from New York that want to bring it, bring it/But we ain't singing, we bringing drama/Fuck you and your motherfucking mama/We're gonna kill all you motherfuckers".

Several rap artists submitted an amicus petition in connection with Knox's petition for certiorari to further discuss lyrics in modern rap music.

The significant error in Knox is predominantly legal, insofar as the Pennsylvania Supreme Court believed that the federal courts that applied Black to require specific intent, did so separate from rather than in addition to an objective standard, which is incorrect. See Heineman, 767 F.3d at 973 ("The issue on appeal is whether § 875(c) requires proof of an additional element—that the defendant intended the recipient to feel threatened."); United States v. Cassel, 408 F.3d 622, 630 (9th Cir. 2005) ("[W]e wrote that the reasonable-person definition of a true threat, 'coupled with the statute's requirement of intent to intimidate, comports with the First Amendment.'") (emphasis in original)); see also United States v. Parr, 545 F.3d 491, 500 (7th Cir. 2008) ("[W]hether the Court [in Black] meant to retire the objective 'reasonable person' approach or to add a subjective intent requirement to the prevailing test for true threats is unclear. If the latter, then a standard that combines objective and subjective inquiries might satisfy the constitutional concern: the factfinder might be asked first to determine whether a reasonable person, under the circumstances, would interpret the speaker's statement as a threat, and second, whether the speaker intended it as a threat."). As a result, the Pennsylvania Supreme Court failed to expressly undertake an objective inquiry.

Whether this led the Pennsylvania Supreme Court to incorrectly conclude that Knox was subject to criminal prosecution is potentially open to debate. While the court suggested it was only applying a specific intent standard, it nonetheless conducted a very contextualized objective standard inquiry. Indeed, the Pennsylvania Supreme Court, while acknowledging the "gansta rap" context in which the song was written, found "the rap song here is of a different nature and quality," insofar as "[m]ost saliently, the calling out by name of two officers involved in Appellant’s criminal cases who were scheduled to testify against him, and the clear expression repeated in various ways that these officers are being selectively targeted in response to prior interactions with Appellant, stand in conflict with the contention that the song was meant to be understood as fiction." Knox, 190 A3d at 1160-61; but see Elonis, 135 S. Ct. at 2016 (Alito, J., dissenting) ("[L]yrics in songs that are performed for an audience or sold in recorded form are unlikely to be interpreted as a real threat to a real person.")

But in spite of the contextualized analysis, the Pennsylvania Supreme Court appears to have come to the wrong result: that a "diss track" by a rapper, in the genre of "gansta rap" diss tracks, was not really that, but was a "true threat." That is why Sullivan is so important in guiding the "true threat" analysis. And that a heightened "actual malice," or "a subjective intent to threaten," in "true threat" cases is necessary where individuals make alleged criminal threats against public figures, or in the context of speech addressing matters of public concern to constitute an actual threat, not protected by the Constitution. As a threshold matter, such a threat is likely to constitute a matter of public concern. See Cox Broadcasting Corp. v. Cohn, 420 U.S. 469, 492 (1975) ("The commission of crime, prosecutions from it, and judicial proceedings arising from the prosecutions ... are without question events of legitimate concern to the public. ..."). And Sullivan's standard requires a much more rigorous analysis. See Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc., 472 U. S. 749, 771 (1985) (White, J., concurring in judgment) (characterizing Sullivan as imposing "burden of proof to an almost impossible level").

And as in the case of Watts, courts "must interpret [statutory language] 'against the background of a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.'" Sullivan, 376 U.S. at 270. The language of the political arena, like the language used in labor disputes, see Linn v. United Plant Guard Workers of America, 383 U.S. 53, 58 (1966), is "often vituperative, abusive, and inexact" and the "only offense [is] 'a kind of very crude offensive method of stating a political opposition". Id. at 708. Not accounting for the heightened scrutiny that Sullivan (cited in Watts) applies, and the context of political speech (which a protest song concerning an arrest surely constitutes), led the Pennsylvania Supreme Court astray in Knox.

The tension between Watts and Black, and the potential for unnecessarily varied outcomes, at least insofar as the Circuits have applied the decisions differently (and as in the case in Knox), it seems lies in the eminently reasonable approach of applying the lesser objective standard in the case of threats against a private person (though in Watts the threat was against President Johnson), but also appreciating the potentially chilling effect on speech that application of the objective standard to matters concerning public figures or matters of public concern, where a heightened specific intent standard is more appropriate. Adopting the public figure framework of Sullivan, addresses this tension between the two approaches in the circuits, while appropriately adding guidance to the level of scrutiny required in a public figure case. While defamation is predominantly a civil cause of action, and threat statutes are generally criminal, a distinction that proved significant in the statutory interpretation in Elonis, 135 S. Ct. at 2011 ("Having liability turn on whether a 'reasonable person' regards the communication as a threat—regardless of what the defendant thinks— 'reduces culpability on the all-important element of the crime to negligence,' and we 'have long been reluctant to infer that a negligence standard was intended in criminal statutes'"), the Supreme Court has of course applied Sullivan's holding to criminal statutes as well. Garrison v. Louisiana, 379 U.S. 64 (1964).

Even applying the Sullivan's standard to "true threat" cases may not change the result in Knox. But the clarification of the standard, would certainly help to provide more consistent application of this significant First Amendment question of when speech goes too far and becomes a criminal threat.

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