                            [J-83-2017] [MO:Saylor, C.J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                WESTERN DISTRICT


 COMMONWEALTH OF PENNSYLVANIA,                  :    No. 3 WAP 2017
                                                :
                        Appellee                :    Appeal from the Order of the Superior
                                                :    Court entered August 2, 2016 at No.
                                                :    1136 WDA 2014, affirming the Order
               v.                               :    of the Court of Common Pleas of
                                                :    Allegheny County entered February
                                                :    21, 2014 at Nos. CP-02-CR-0006621-
 JAMAL KNOX,                                    :    2012, CP-02-CR-0003870-2013, CP-
                                                :    02-CR-0004264-2013.
                        Appellant               :
                                                :    ARGUED: November 28, 2017


                        CONCURRING AND DISSENTING OPINION


JUSTICE WECHT                                       DECIDED: AUGUST 21, 2018

       I agree with much of the learned Majority’s opinion. For instance, I concur in the

Majority’s general explication of First Amendment principles in the true threat context.

Specifically, I agree that one result of the United States Supreme Court’s fractured

decision in Virginia v. Black, 538 U.S. 343 (2003), is that our previously-applied objective,

reasonable-listener standard for assessing whether a statement was, in fact, a

constitutionally sanctionable true threat is “no longer viable.” Maj. Op. at 16. The Majority

correctly interprets Black and its progeny to require, as part of a dual-pronged analysis,

an assessment of the speaker’s subjective intent. Finally, I agree with the Majority that

the facts of this case demonstrate that Jamal Knox intended to communicate a true threat

via the lyrics of the contested rap song. Hence, I join the Majority in affirming Knox’

criminal convictions.
       However, I do not agree with the limited test articulated and applied by the Majority.

The Majority distills the relevant jurisprudence into two general “facets:” (1) the First

Amendment “allows” states to criminalize speech when it is “specifically intended” to

terrorize or intimidate; and (2) “evidentiary weight should be given to contextual

circumstances” surrounding the statement.1 Maj. Op. at 18. My primary disagreement

lies with- the unnecessary restraint employed by the Majority in articulating the first prong

of this test. The Majority correctly concludes that the First Amendment permits imposing

punitive actions upon a person who specifically intends to communicate a true threat. But

the Majority refuses to consider the more important question of whether the First

Amendment requires proof of specific intent, or whether the Amendment would tolerate

punishment of speech based upon proof of only a lesser mens rea such as recklessness

or knowledge. Id. at 17-18 n.10. The Majority accurately notes that this latter inquiry is

an “open question.” Id. I would answer that question in this case.

       As a general jurisprudential matter, the Majority’s restrained approach is not

without merit. Nonetheless, there are compelling reasons to resolve this issue presently.

First, Knox places squarely before this Court the question of whether specific intent is a

necessary and essential element to a true threats analysis. Second, and perhaps more

importantly, our current framework predates the United States Supreme Court’s decisions

in Black and Elonis v. United States, ___ U.S. ___, 135 S. Ct. 2001 (2015). Following

Black in particular, the United States Courts of Appeals have been compelled to decide

if, and how, Black affected their preexisting true threats analyses, and whether Black


1      The contextual circumstances referred to by the Majority derive from the United
States Supreme Court’s seminal true threats case, Watts v. United States, 394 U.S. 705
(1969) (per curiam). In that case, the Supreme Court held that Watts’ statement was not
a true threat, inter alia, because it was uttered during a political rally, because the
statement was conditional, and because those who heard the statement did not take it
seriously. Id. at 708.


                            [J-83-2017] [MO: Saylor, C.J.] - 2
required proof of subjective intent. Most circuits have held that Black does not require

such proof. Regardless of the outcome, those decisions underscore the necessity of

interpreting Black and ascertaining its impact upon a true threats analysis. We must

undertake a similar analysis, not only because we are asked to do so, but also because

our current test clearly is outdated and presently insufficient, in large part because we

crafted it in J.S. ex. rel. H.S. v. Bethlehem Area School District., 807 A.2d 847 (Pa. 2002),

which predated the United States Supreme Court’s most recent guidance in this area of

federal constitutional law. Because it is imperative that we reconsider and modify our true

threats test, we should construct a complete and final test, not a partial one that leaves

uncertainty that will serve only to complicate and protract litigation in future cases.

       Finally, and perhaps most importantly, declining to resolve the legal question

presented in full would ignore the real and precedential effect of our decisions. Although

we are deciding a First Amendment issue that arose in a criminal case, the framework

that we are called upon to update and revise will not be so confined. The Majority’s limited

decision does not provide sufficient guidance to the next musician who seeks to express

political views and wants to do so to the fullest extent protected by the First Amendment.

It offers no framework for a school district faced with the possibility of punishing (and

possibly expelling) a student who has created a tasteless website or made derogatory

and potentially threatening comments on social media.           It affords no paradigm for

application to the teacher who is fired, the police officer who is suspended, or the

municipal employee who is disciplined.        The reach of today’s decision is far more

expansive than criminal cases alone. Governmental bodies should know whether they

can take punitive actions against students, employees, or officers if those individuals act

with something less than specific intent. Similarly, individuals should not be subjected to

termination, suspension, or extended desk duty only to find out years later than their




                             [J-83-2017] [MO: Saylor, C.J.] - 3
conduct was not prohibited by the First Amendment. The issue is more than ripe for

disposition, and the reasons to reach it are compelling.

       Following Black, federal appeals courts have split over whether the subjective

intent of a speaker is a necessary component of an actual true threat. See United States

v. Parr, 545 F.3d 491, 500 (7th Cir. 2008) (opining that, after Black, “whether the Court

meant to retire the objective ‘reasonable person’ approach or to add a subjective intent

requirement to the prevailing test for true threats is unclear”).      Recent cases have

attempted to parse the “type of intent needed by a defendant to communicate” a true

threat for purposes of the various threat provisions in the United States Criminal Code2 in

the wake of Black. See, e.g., United States v. Clemens, 738 F.3d 1, 2 (1st Cir. 2013).

       The First, Second, Third, Fourth, Sixth, Seventh, and Eighth Circuits have

determined that the Black Court did not impose a subjective intent requirement upon the

analysis. Those Circuits eschew such an element, and instead apply an objective test

focused upon either a hypothetical reasonable speaker or a hypothetical reasonable

recipient/listener. See Clemens, 738 F.3d at 10 (assessing threats based upon “an

objective defendant vantage point standard post-Black”); United States v. Davila, 461

F.3d 298, 305 (2d Cir. 2006) (“The test is an objective one—namely, whether an ordinary,

reasonable recipient who is familiar with the context of the letter would interpret it as a

threat of injury.”); United States v. Elonis, 730 F.3d 321, 331 n.7 (3d Cir. 2013), rev’d by

Elonis v. United States, 135 S. Ct. 2001 (2015) (describing the Third Circuit test as asking

“whether a reasonable speaker would foresee the statement would be understood as a

threat”); United States v. White, 670 F.3d 498, 508 (4th Cir. 2012), abrogated by United

States v. White, 810 F.3d 212 (4th Cir. 2016) (explaining that a statement constitutes a

true threat “if an ordinary reasonable recipient who is familiar with the context . . . would


2      See, e.g., 18 U.S.C. § 875(c) (“Interstate Transmission of Threat to Injure”).


                             [J-83-2017] [MO: Saylor, C.J.] - 4
interpret [the statement] as a threat of injury”) (internal quotation marks omitted); United

States v. Jeffries, 692 F.3d 473, 479 (6th Cir. 2012) (holding that a statement constitutes

a true threat when “a reasonable person (1) would take the statement as a serious

expression of an intention to inflict bodily harm (the mens rea), and (2) would perceive

such expression as being communicated to effect some change or achieve some goal

through intimidation (the actus reus)”); Parr, 545 F.3d at 499 (noting that the circuit

traditionally has used an “objective reasonable person” test, and declining to decide

whether Black necessitated an alteration to that test under the circumstances of that

case); United States v. Nicklas, 713 F.3d 435, 440 (8th Cir. 2013) (holding that the

government is required “to prove a reasonable recipient would have interpreted the

defendant's communication as a serious threat to injure”).

       The Fifth and Eleventh Circuits adopted a more general reasonable person test,

with no specific reliance upon either the speaker or the listener. See Porter v. Ascension

Parish Sch. Bd., 393 F.3d 608, 616 (5th Cir. 2004) (explaining that “[s]peech is a true

threat and therefore unprotected if an objectively reasonable person would interpret the

speech as a serious expression of an intent to cause a present or future harm”) (internal

quotation marks omitted); United States v. Martinez, 736 F.3d 981, 988 (11th Cir. 2013),

vacated by Martinez v. United States, 135 S. Ct. 2798 (2015) (per curiam) (holding that a

true threat is “determined from the position of an objective, reasonable person”).

       The Ninth and Tenth Circuits read Black as requiring the true threats analysis to

focus upon the speaker’s subjective intent to intimidate a person or group of persons.

See United States v. Cassel, 408 F.3d 622, 633 (9th Cir. 2005) (“We are therefore bound

to conclude that speech may be deemed unprotected by the First Amendment as a ‘true

threat’ only upon proof that the speaker subjectively intended the speech as a threat.”);

United States v. Magleby, 420 F.3d 1136, 1139 (10th Cir. 2005) (“Unprotected by the




                            [J-83-2017] [MO: Saylor, C.J.] - 5
Constitution are threats that communicate the speaker's intent to commit an act of

unlawful violence against identifiable individuals. The threat must be made with the intent

of placing the victim in fear of bodily harm or death.”) (internal citations and quotation

marks omitted); United States v. Heineman, 767 F.3d 970, 972, 975, and 978 (10th Cir.

2014) (quoting the reasonable recipient test, but also adding a requirement that the

government prove that the defendant intended the recipient to feel threatened). But see

United States v. Wheeler, 776 F.3d 736, 743 n.4 (10th Cir. 2015) (limiting the Heineman

analysis to the statutory definition of a true threat, and holding that the subjective test was

not part of a First Amendment analysis).

       As noted, the Majority holds only that the First Amendment permits regulating

speech that is specifically intended to be a true threat. The Majority does not consider

whether specific intent is the only mens rea that would pass constitutional muster. For

this reason, the Majority explains that the Court is “not fully aligned with” the Ninth Circuit’s

rule that specific intent is “the sine qua non of a constitutionally punishable threat.” Maj.

Op. at 17 n.10 (quoting Cassel, 408 F.3d at 631). Contrary to the Majority, I endorse the

Ninth Circuit’s holding, and I would adopt it in this case. In my view, the Ninth Circuit

correctly determined that the reasoning underlying the Supreme Court’s Black decision

necessitates the conclusion that the First Amendment requires such a subjective

examination, and that proof of the speaker’s intent to intimidate the recipient of the

communication is a required inquiry in order to balance the need to protect victims of

threats with the First Amendment rights of the speaker.

       It is crucial that we not forget that punishing a person for communicating a true

threat, however reasonable it seems, is a content-based regulation of speech. As a

general rule, the First Amendment prohibits content-based restraints. See R.A.V. v. City

of St. Paul, Minn., 505 U.S. 377, 382 (1992) (citing Cantwell v. Connecticut, 310 U.S. 296,




                              [J-83-2017] [MO: Saylor, C.J.] - 6
309-11 (1940); Texas v. Johnson, 491 U.S. 397, 406 (1989)). Indeed, “[c]ontent-based

regulations are presumptively invalid.” Id. (citations omitted). Thus, the ability to punish

a true threat based upon its content is an exception to the general prohibition. The

Supreme Court has insisted that content-based categories of speech that can be

regulated be narrowly drawn. See Chaplinsky v. New Hampshire, 315 U.S. 568, 571

(1942). A content-based proscription of speech that is premised upon something less

than the most rigorous standard is a proscription that is not narrowly drawn, particularly

when considering true threats in the context of musical expression. See, e.g., Pap’s A.M.

v. City of Erie, 812 A.2d 591, 612 (Pa. 2002) (explaining that a content-based city

ordinance restricting First Amendment rights passes constitutional muster only if it is

narrowly drawn and if the municipality can show a compelling state interest, i.e., strict

scrutiny). Punishing statements that can be construed only as knowingly or recklessly

uttered casts a net too wide, as it catches up and penalizes an impermissible amount of

protected speech and breeds a “threat of censorship that by its very existence chills free

speech.” Secretary of State of Md. v. Joseph H. Munson Co., Inc., 467 U.S. 947, 964

n.12 (1984) (citations omitted). After all, the United States Supreme Court has mandated

that “First Amendment standards . . . must give the benefit of any doubt to protecting

rather than stifling speech.” Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 327

(2010) (citations and internal quotation marks omitted). Proof of specific intent strikes the

correct balance between prosecuting that which is unprotected and shielding that which

is protected.

       However, like the Majority, I also would hold that consideration of a speaker’s

mindset is only part of the analysis, and would adopt a two-pronged approach to

evaluating a true threat for constitutional purposes. First, I would require reviewing courts

to conduct an objective analysis to determine whether reasonable recipients would




                             [J-83-2017] [MO: Saylor, C.J.] - 7
consider the statement to be “a serious expression of intent to inflict harm,” and not merely

jest, hyperbole, or a steam valve. J.S., 807 A.2d at 858. For this purpose, I believe that

the factors that we delineated in J.S., a case I discuss in detail below, are relevant and

useful. Those factors include: “the statements, the context in which they were made, the

reaction of the listeners and others as well as the nature of the comments.” Id. No one

factor should be considered conclusive, and each should be considered and analyzed,

alone and against the others, under the totality of the circumstances. Second, if the first

prong is satisfied, I would require courts to conduct a subjective analysis to ascertain

whether the speaker specifically intended to intimidate the victim or victims, or intended

his expression to be received as a threat to the victim or victims.          Failure of the

government to satisfy either prong would mean that, under the First Amendment, the

statement cannot be penalized or proscribed.

       This framework balances the relevant interests at stake, ensuring that only true

threats—those that are intended as such—are punished while, at the same time, shielding

otherwise-protected speech from unwarranted governmental proscription. The first prong

of my proposed test allows courts to determine objectively whether a statement is a threat

and not political hyperbole, as was the case in Watts, or an instance of sophomoric

utterances that could not be taken seriously, like those that we determined were not true

threats in J.S. The second prong requires proof that the speaker’s purpose was to strike

fear in the victim, which further justifies exempting the statement from constitutional

protection.

       All that remains is application of my proposed test. I begin with the objective prong

of the analysis. The most natural starting place, and the first J.S. factor, is the words of

the purported threat.




                             [J-83-2017] [MO: Saylor, C.J.] - 8
       Words matter. Indeed, the actual words used by the speaker to convey a thought

are one of the strongest indicators of whether an utterance objectively should be

perceived as an actual threat. However, those words cannot be read in isolation. An

objective assessment necessarily requires consideration of the circumstances in which

the statement was made. In this instance, the threats were part of a song. This makes

an objective consideration of the threatening language more difficult than with other forms

of communication, as music often is rife with hyperbole, boasting, exaggerated attempts

at entertainment, overheated invocation of emotion, and nonsensical banter. Of course,

that the statements were made in a song does not exempt them from being true threats.

But it does complicate the task of determining which lyrical statements objectively should

be taken seriously and which should not.

       In some instances, the answers are obvious. For example, compare Coolio’s

“Gangsta’s Paradise”3 with “Weird Al” Yankovic’s “Amish Paradise.”4            In “Gangsta’s

Paradise,” Coolio reflects upon the difficulties that he has faced in life and upon the cycles

of greed and violence in his community. It is readily apparent that Coolio’s song is meant

to convey a message that is serious, thoughtful, and personal. On the other hand,

Yankovic’s song is an obvious parody of “Gangsta’s Paradise,” premised upon silliness

and meant to provoke laughter. Unlike “Gangsta’s Paradise,” Yankovic’s lyrics are not

meant to (and cannot) be taken seriously.

       In most cases, however, determining whether the lyrics of a particular song are

serious, credible statements is more challenging. The difficulty arises from the nature of

song lyrics themselves. Artists often use hyperbole in their songs to illustrate emotion.


3      COOLIO, GANGSTA’S PARADISE (Tommy Boy 1995).
4      “W EIRD AL” YANKOVIC, AMISH PARADISE (Scotti Brothers 1996).




                             [J-83-2017] [MO: Saylor, C.J.] - 9
The Beatles, for example, insisted that they “ain’t got nothin’ but love babe, eight days a

week.”5 The hyperbole is obvious. But the exaggeration may not always be so apparent.

Artists sometimes employ metaphors that defy clear definition. Consider the song “Drops

of Jupiter” by Train, in which the artists ask, “Did you finally get the chance to dance along

the light of day and head back to the Milky Way?”6 Song lyrics may even lack any

discernible meaning on their own, as in The Beatles’ classic “Lucy in the Sky with

Diamonds,” which includes the instruction, “follow her down to a bridge by a fountain

where rocking horse people eat marshmallow pies.”7

       Musicians sometimes use violent themes to communicate political messages. In

“Bulls on Parade,” Rage Against the Machine uses violent imagery (“With the sure shot,

sure ta make the boddies drop . . . of tha power dons - that five sided Fist-a-gon . . . the

trigger’s cold, empty ya purse”8) as a political statement to criticize the United States

government and its military. In his song “Courtesy of the Red, White, and Blue,” Toby

Keith employs violent imagery (“We’ll put a boot in your ass, it’s the American way” 9) as

a political statement to voice support for the United States Armed Forces. Others use

violent lyrics to depict actual events, but the lyrics do not necessarily reflect the life of the

artist. In “Delia’s Gone,” Johnny Cash sang: “If I hadn't shot poor Delia I'd have had her




5      THE BEATLES, EIGHT DAYS A W EEK (Parlophone 1964).
6      TRAIN, DROPS OF JUPITER (Columbia 2001).
7      THE BEATLES, LUCY IN THE SKY WITH DIAMONDS (Parlophone 1967).
8      RAGE AGAINST THE MACHINE, BULLS ON PARADE (Evil Empire 1996).
9     TOBY KEITH, COURTESY        OF THE   RED, W HITE,   AND   BLUE (THE ANGRY AMERICAN)
(DreamWorks Nashville 2002).




                             [J-83-2017] [MO: Saylor, C.J.] - 10
for my wife.”10 Although this song is written in the first person and depicts a murder, it

actually is a cover of a song about a fourteen-year-old adolescent who was murdered in

1900. SEAN W ILENTZ, BOB DYLAN IN AMERICA (2011).

       Songs also may contain lyrics that appear facially threatening, but that still

constitute protected speech.     The band Foster the People produced a song called

“Pumped Up Kicks,” which describes a school shooting and warns, “All the other kids with

the pumped up kicks you'd better run, better run, out run my gun.”11 Further, the rap

group N.W.A., in their song “Fuck tha Police,” expressly described violence against police

officers, stating, “and when I’m finished, it’s gonna be a bloodbath of cops dying in L.A. .

. . I’m a sniper with a hell of a scope / taking out a cop or two, they can’t cope with me.”12

These examples illustrate that, when song lyrics are read in isolation, the task of

distinguishing between words that should be understood as serious, true threats, and

those which should be understood as lyrical devices is complex, to say the least.

       With this in mind, I turn to the lyrics at issue herein. The words of Knox’s rap song

were not general or vague as to the targets, a circumstance that would have militated

against a finding of a true threat. Had the lyrics been directed at police officers generally,

or had they complained about perceived abuses by unnamed police officers, those lyrics

objectively could have been understood as political commentary or as a musical

ventilation of frustration about the rappers’ real-life experiences.       That is not what

occurred in this case.




10    JOHNNY CASH, DELIA’S GONE (Columbia 1962); see also JOHNNY CASH, FOLSOM
PRISON BLUES (Sun Records 1957) (“But I shot a man in Reno just to watch him die.”)
11     FOSTER THE PEOPLE, PUMPED UP KICKS (Columbia 2011).
12     N.W.A., FUCK THA POLICE (Ruthless Records 1988).



                            [J-83-2017] [MO: Saylor, C.J.] - 11
       In response to being arrested and charged with drug-related crimes months before

the release of the video, Knox used lyrics that not only were facially threatening, but were

directed specifically at Officer Kosko and Detective Zeltner, whom Knox identified in the

song by name. The following excerpts from the verses performed by Knox compel my

conclusion that Knox’s statements objectively must be considered threatening for

constitutional purposes:

       The first verse is for Officer Zeltner and all you fed force bitches
       And Mr. Kosko, you can suck my dick, you keep knocking my riches.
       You want beef, well cracker I’m wit it, that whole department can get it.
       All these soldiers in my committee gonna fuck over you bitches
       Fuck the police bitch, I said it loud

                                          ***
       We makin’ prank calls, as soon as you bitches come we bustin’ heavy metal

       So now they gonna chase me through these streets
       And I’m a jam this rusty knife all in his guts and chop his feet
       You takin money away from Beaz, and all my shit away from me
       Well your shift over at three and I’m gonna fuck up where you sleep
                                             ***
       My Northview niggas they don’t fuck with you bitches, I hate your fuckin
       guts, I hate y’all.
       My momma told me not to put this on C.D., but I’m gonna make this fuckin
       city believe me, so nigga turn me up.
                                             ***
       They tunin’ in, well Mr. Fed, if you can hear me bitch,
       Go tell your daddy that we’re booming bricks.
       And them informants that you got, finna be layin in the box
       And I know exactly who workin’, and I’m gonna kill him wit a Glock.
       The instances of obvious hyperbole (“chop his feet”) do not disturb our

interpretation of this factor. These passages—even without considering the statements

made during the co-author’s verses—contain direct threats to named individuals. Knox

threatened those officers with firearms (“bustin’ heavy metal”) and with knives (“I’m a jam

this rusty knife all in his guts”). Knox’s lyrical intimidation also extended to the officers’

family homes (“I’m gonna fuck up where you sleep”). Knox’s proclamation that he knew



                            [J-83-2017] [MO: Saylor, C.J.] - 12
when the officers’ shifts end (“your shift over at three”)—regardless of whether the

statement was true—conveyed a more personal message that the officers were being

watched, lending credibility to the statements and further elevating them over hyperbole

or mere musical embellishments. Knox also indicated that he knew the identities of the

officers’ confidential informants, and threatened them as well.

       It bears repeating that the aim of the law in the jurisprudence of threats is to deter

and/or remedy the intimidation and fear that such statements inflict upon the victim(s).

Many of the lyrics that discuss or advocate violence would not, by themselves, amount to

true threats. In fact, as the examples from popular music show, violent topics often are

expressed in music without being considered threatening to any particular individual(s),

and could not and should not be regulated or punished. What separates this case from

other music containing similar lyrics is the direction of those lyrics to specifically named

officers, who are targeted as the objects of the violent expressions. Objectively, lyrics

uttered in this manner are too personal, focused, and specific to be considered anything

other than true threats.

       Next, I consider the context in which the statements were made. As the District of

Columbia Court of Appeals observed, “a determination of what a defendant actually said

is just the beginning of a threats analysis. Even when words are threatening on their face,

careful attention must be paid to the context in which those statements are made to

determine if the words may be objectively perceived as threatening.” In re S.W., 45 A.3d

151, 157 (D.C. 2012) (footnotes omitted). The lyrics in “Fuck the Police” were not created

and sung as part of a broader political commentary on the state of affairs between the

police and the citizenry, were not facially hyperbolic or satirical, and did not constitute any

other form of speech that would receive constitutional protection. The lyrics were drafted

and recorded in the wake of, and in direct response to, Knox’s arrest and receipt of




                            [J-83-2017] [MO: Saylor, C.J.] - 13
criminal charges at the hands of the two named officers. At the time that the song was

uploaded to YouTube, the earlier criminal charges were pending, with a hearing less than

one month away, at which the two named officers were scheduled to testify against Knox

and Beasley.

       As part of the examination of the context in which the statements were made, it is

necessary to review the means by which the statements were conveyed to the victim(s).

The actual communication of the video is the aspect of the case that Knox most vigorously

disputes. The crux of his argument is that, because of the dearth of evidence of record

to establish that he actually created, uploaded, or published the video, he cannot

constitutionally be liable for making a threat.    Knox maintains that authorship of a

threatening song is only one half of a true threat.        The other half is the actual

communication of the threat. Absent evidence of the communication, he argues, the song

lyrics are no different than writing threats in a personal journal or diary, which are not

intended to be seen by anyone else. See Brief for Knox at 36. In Knox’ view, the threat

can be attributed to him only if the Commonwealth proves that he was the actual person

who struck the computer key that caused the video to be uploaded to YouTube.

       Knox is correct that the Commonwealth did not prove that he uploaded the video.

The evidence confirms that the video was uploaded using an IP address connected to the

Hart family, and that the police could not connect Knox with the Harts. Moreover, the

police were unable to link Knox to any of the cell phones that had access to the IP address

at the time that the video was uploaded. These factors would be dispositive if Knox was

correct that he can be responsible only if he personally caused the video to be uploaded.

But this is not the law. Knox takes too narrow a view of communication in this context.

       Knox and Beasley jointly authored and recorded the “Fuck the Police” song. Both

men sang individual verses in the song. The video displays two still photos of Knox and




                           [J-83-2017] [MO: Saylor, C.J.] - 14
Beasley standing together in corresponding outfits. This was not the duo’s first song

together. At least two other videos were posted to YouTube in which Knox and Beasley

are rapping or talking with each other. Their music, including “Fuck the Police,” was

promoted to the public via the “Beaz Mooga” Facebook page. There was ample evidence

demonstrating that Beasley operated the page. The three email addresses that were

associated with the page all contained some form of the name Rashee Beasley. Posts

on the page celebrated Beasley’s birthday and referenced events that corresponded to

actual events in Beasley’s life.

       The totality of these circumstances establish a sufficient link between the creation

of the song and video, its publication and promotion, and Knox. Knox was sufficiently

involved in the process such that he cannot now demand immunity concerning the song’s

threats simply because someone else may have actually uploaded the video. Knox made

no efforts to stop either the dissemination or the promotion of the song.           These

circumstances differ entirely from Knox’s personal diary hypothetical.        The record

contains ample evidence to conclude that Knox was at least a complicit bystander in the

publication of the video.

       Having determined that Knox is not immune from liability for the threat, it bears

noting that the manner by which a threat is communicated is often as important as the

words themselves in an objective assessment of whether a statement amounts to a true

threat. Using the example offered by Knox as an illustration, a threat—one intended to

be such—that a person writes in a personal journal and that is never seen by the desired

victim is unlikely to be considered objectively an actionable true threat.      In such a

circumstance, the intended victim is never subjected to the fear or intimidation that true

threat jurisprudence aims to punish. On the other end of the spectrum, a threat that is




                            [J-83-2017] [MO: Saylor, C.J.] - 15
delivered face-to-face to the victim in a menacing way almost always will constitute a

threat.

          The means of communication in this case fall somewhere between those two

extremes.      The video was distributed to the public via YouTube, and subsequently

promoted on Facebook by Beasley, Knox’s cohort and musical partner. Neither Knox nor

Beasley sent the video directly to any police officer, police department, or local media

outlet. Nonetheless, the obvious purpose of uploading a video to the Internet is for it to

be viewed and shared. It is reasonable to conclude that, even though the video was not

sent directly to the two named officers, it ultimately would be discovered by them as a

result of general dissemination in today’s electronically connected world. It is also fair to

conclude that, once the video went public, Knox and Beasley knew that it would find its

way to the named officers.

          Notably, Knox took no efforts to prevent the video from being viewed by law

enforcement authorities. To the contrary, Knox offered at least some indicia in the song

itself that he did not want to restrict its access to a limited or personal audience (“My

momma told me not to put this on C.D., but I’m gonna make this fuckin city believe me. .

.”).

          Absent direct conveyance specifically to the named officers (i.e., the “in your face”

scenario), the communication aspect of this case is not overwhelming or conclusive.

However, in light of the above discussion, the communication factor nonetheless weighs

against Knox. Thus, the contextual circumstances support the conclusion that the lyrics

in this case constituted true threats.

          The final J.S. factor that is relevant to this case, the reaction of the listeners, also

supports this holding. This factor was a significant aspect of the Supreme Court’s threats

analysis in Watts, which marked the genesis of the true threats exception to the First




                               [J-83-2017] [MO: Saylor, C.J.] - 16
Amendment. See, supra, note 1. It is one of the more difficult factors to assess in a

reliable manner.     People differ in gender, race, religion, and, most importantly,

experience. One person may be emotionally stoic and might not react at all to hearing a

threat, while another person might panic immediately and call the police upon hearing the

same threat. A person’s recent life experiences, the highs and the lows, might inform his

or her reaction in that moment, and that reaction may be different than if the threat was

heard a week or a month later (or before). Police officers might or might not react

differently to a threat than would a hardened criminal. The scenarios and hypotheticals

go on and on. The examples are innumerable, which is what makes assessing the

reasonableness of a listener’s reaction difficult.

       Despite the general complexity of this aspect of the analysis, the factor is easily

resolved in this particular case. Officer Spangler was the first police officer to hear the

song. When he heard the threatening lyrics, he promptly forwarded the song to his

supervisors and to Officer Kosko and Detective Zeltner. As this was happening, a local

media outlet found the song and began reporting on it, apparently believing it to contain

actual threats as well. Officer Kosko and Detective Zeltner were prevented from working

alone, and the police presence in the entire area was increased. Both officers were

emotionally distraught by the lyrics.     Detective Zeltner was given time off and was

provided with additional security when he returned to work. Officer Kosko chose to retire

one year after hearing the song. The song necessitated significant efforts to ensure the

safety of the two named officers, as well as the officers and civilians in the local

community. This factor strongly weighs in the direction of a true threat.

       All of these factors support concluding that, objectively, the lyrics in this case

constitute true threats. Thus, under my proposed test, I now must consider whether Knox

intended them as such.




                            [J-83-2017] [MO: Saylor, C.J.] - 17
        For this factor, I rely upon much of the same evidence, but view it from a subjective

perspective. The tone of the lyrics chosen for this song demonstrates clearly that Knox

was angered by his prior arrest and the effect that the arrest had upon his financial

situation. The rage apparent in the lyrics alone would not justify a conclusion that Knox

intended the lyrics to be threatening. However, the fact that Knox directed the threats

specifically at Officer Kosko and Detective Zeltner does. I discern no credible argument

that naming those two individuals served any purpose other than to instill fear in them.

The timing of the threats is important as well. The charges that prompted the song lyrics

were pending at the time that the song was published. The two officers were slated to

appear in person and testify against Knox and Beasley at a hearing approximately one

month later. Additionally, Knox referred specifically to the types of violence that he would

inflict and when and where he would inflict them. Knox also revealed his motive for

levying these threats in the song: revenge for the prior arrest, which harmed his ability to

make money through drug trafficking. In the aggregate, the evidence of Knox’s subjective

intent is plentiful.

        For these reasons, I concur with the Majority that Knox’s lyrics constitute true

threats, and that those lyrics do not receive First Amendment protection.             Before

concluding, however, I must acknowledge the similarities between this case and J.S., in

which this Court reached an opposite conclusion. J.S., an eighth-grade student in the

Bethlehem Area School District, created a website on his home computer and uploaded

it to the Internet. The website was not related to any school program, assignment, or

project. When a person accessed the website, the front page consisted of a “disclaimer,”

which informed the viewer that, by clicking through and entering the website, the viewer

agreed: (1) not to report to anyone affiliated with the school district what the viewer was

about to see; (2) that the viewer was not an employee of the district; and (3) that the




                            [J-83-2017] [MO: Saylor, C.J.] - 18
viewer would not disclose to anyone the identity of the creator of the website and would

not cause any trouble for the creator. Although styled as a disclaimer, the front page did

not actually bar access to anyone and was not password-protected. Any person who

wanted to access the site could view it simply by clicking through the front page. Id. at

851.

       The main pages of the website contained derogatory, profane, and threatening

statements directed primarily at the principal of the middle school, A. Thomas Kartsostis,

and at J.S.’ algebra teacher, Kathleen Fulmer.        This Court provided the following

description of content of the various pages within the website:

       Within the website were a number of web pages. [C]ertain of the web pages
       made reference to Principal Kartsostis. Among other pages was a web
       page with the greeting “Welcome to Kartsostis Sux.” Another web page
       indicated, in profane terms, that Mr. Kartsostis engaged in sexual relations
       with a Mrs. Derrico, a principal from another school, Asa Packer School.

       The web site also contained web pages dedicated to Mrs. Fulmer. One
       page was entitled “Why Fulmer Should be Fired.” This page set forth, again
       in degrading terms, that because of her physique and her disposition, Mrs.
       Fulmer should be terminated from her employment. Another animated web
       page contained a picture of Mrs. Fulmer with images from the cartoon
       “South Park” with the statement “That’s right Kyle [a South Park character].
       She’s a bigger b___ than your mom.” Yet another web page morphed a
       picture of Mrs. Fulmer’s face into that of Adolph Hitler and stated “The new
       Fulmer Hitler movie. The similarities astound me.” Furthermore, there was
       a hand-drawn picture of Mrs. Fulmer in a witch’s costume. There was also
       a page, with sound, that stated “Mrs. Fulmer Is a B___, In D Minor.” Finally,
       along with criticism of Mrs. Fulmer, a web page provided answers for certain
       math lessons.

       The most striking web page regarding Mrs. Fulmer, however, was
       captioned, “Why Should She Die?” Immediately below this heading, the
       page requested the reader to “Take a look at the diagram and the reasons
       I gave, then give me $20 to help pay for the hitman.” The diagram consisted
       of a photograph of Mrs. Fulmer with various physical attributes highlighted
       to attract the viewer’s attention. Below the statement questioning why Mrs.
       Fulmer should die, the page offered “Some Word from the writer” and listed
       136 times “F___ You Mrs. Fulmer. You Are A B___. You Are A Stupid
       B___.” Another page set forth a diminutive drawing of Mrs. Fulmer with her
       head cut off and blood dripping from her neck.


                           [J-83-2017] [MO: Saylor, C.J.] - 19
Id. at 851 (footnotes omitted). Eventually, the principal learned of, and viewed, the

website. Because he considered the threats to be serious, he informed the school faculty

that there was a problem at the school, and he contacted the local police and the FBI,

both of which ultimately declined to pursue charges against J.S.

       Mrs. Fulmer also viewed the site. She became concerned for her safety. Worse,

she experienced, inter alia, stress, anxiety, short-term memory loss, headaches, and

depression. She was unable to finish the school year, and was afforded medical leave

for the following school year. Id. at 852.

       J.S. continued to attend the school and was not required to take down the website,

although he did so voluntarily one week after the principal viewed it. Initially, the District

did not punish J.S. However, at the conclusion of the school year, the District informed

J.S.’ parents that J.S. would be suspended for three days because J.S.’ website

constituted a threat to a teacher, harassment of a teacher and the principal, and

disrespect to both, all of which affected the health, safety, and welfare of the school

community.

       The District held a hearing on the suspension, at which the District elected to

extend the suspension from three days to ten days.           After the hearing, the District

reconsidered the suspension and commenced expulsion proceedings against J.S. The

District conducted two expulsion hearings before the start of the new school year. J.S.

did not attend the second hearing because, by that time, his parents had enrolled him in

a school in a different state. At the conclusion of the hearings, the District determined

that the website contained threats and harassment directed at a teacher and the principal

that resulted in harm to the school community. Consequently, the District expelled J.S.

Id. at 853.




                            [J-83-2017] [MO: Saylor, C.J.] - 20
       J.S.’ parents appealed the expulsion, maintaining that the sanction violated J.S.’

First Amendment rights. The case ultimately reached this Court, which then turned to

examine the “difficult issue of whether a school district may, consistent with the First

Amendment to the United States Constitution, discipline a student for creating at home,

and posting on the Internet, a website that . . . contained . . . threatening statements

directed toward one of the student’s teachers and his principal.” Id. at 850.

       After discussing basic tenets of the First Amendment, the Court considered how

those principles “intersect with the unique school setting,” which we described as “a

complex and delicate task.” Id. at 855. “Schools are given the monumental charge of

molding our children into responsible and knowledgeable citizens.” Id. On balance, both

the United States Supreme Court and this Court have concluded that a student’s

constitutional interests must give way—in certain circumstances—to the institutional

needs of a school. This includes the student’s right to freedom of expression. With this

framework in mind, the Court turned to the question of whether J.S.’ statements on his

website amounted to true threats.

       This Court recounted the Supreme Court’s Watts decision, and observed that the

High Court “has offered little more since rendering its decision . . . in terms of guidelines

to adjudge what constitutes a true threat.” Id. at 857.13 We considered extra-jurisdictional

cases that have “attempted to further define what constitutes a true threat and to create

a standard to evaluate speech alleged to constitute a true threat.”           Id. at 857-58

13      At the time that the J.S. Court considered what constituted a true threat, our
Superior Court had been relying upon the United States Court of Appeals for the Second
Circuit’s decision in United States v. Kelner, 534 F.2d 1020 (2d Cir. 1976). See
Commonwealth v. Baker, 722 A.2d 718, 722 (Pa. Super. 1998), aff’d, 766 A.2d 328 (Pa.
2001). In Kelner, the Second Circuit opted to define a true threat as one that “on its face
and in the circumstances in which it is made is so unequivocal, unconditionally immediate
and specific as to the person threatened, as to convey a gravity of purpose and imminent
prospect of execution.” Kelner, 534 F.2d at 1027. This Court has never adopted Kelner’s
definition.


                            [J-83-2017] [MO: Saylor, C.J.] - 21
(discussing Lovell v. Poway Unified Sch. Dist., 90 F.3d 367 (9th Cir. 1996); and In the

Interest of A.S., 626 N.W.2d 712 (Wis. 2001)). Both the United States Court of Appeals

for the Ninth Circuit and the Supreme Court of Wisconsin had employed an objective

reasonable person standard, inquiring whether the speaker would reasonably foresee

that the statement would be interpreted as a serious expression of purpose or intent to

inflict harm. See Lovell, 90 F.3d at 372; In the Interest of A.S., 626 N.W.2d at 720. To

ensure that the statement was not mere “hyperbole, jest, innocuous talk, expressions of

political views or other similarly protected speech,” J.S., 807 A.2d at 858, the Supreme

Court of Wisconsin had held that courts in that state, using a totality of the circumstances

approach, were bound to consider the following factors:

       how the recipient and other listeners reacted to the alleged threat; whether
       the threat was conditional; whether it was communicated directly to its
       victim; whether the makers of the threat had made similar statements to the
       victim on other occasions; and whether the victim had reason to believe that
       the maker of the threat had a propensity to engage in violence.

In the Interest of A.S., 626 N.W.2d at 720. Five years earlier, the Ninth Circuit had

prescribed a similar set of factors in articulating an objective standard for consideration

of a purported true threat. Lovell, 90 F.3d at 372.

       In J.S., we found In the Interest of A.S. and Lovell compelling and consistent with

the Supreme Court’s holding in Watts. We concluded the “reasonable guideposts” offered

by the Ninth Circuit and the Wisconsin Supreme Court were helpful in differentiating

between a true threat and protected speech. We held that, to determine whether a

statement is “a serious expression of intent to inflict harm,” Pennsylvania courts must

“consider the statements, the context in which they were made, the reaction of the

listeners and others as well as the nature of the comments.” J.S., 807 A.2d at 858.

       Following careful deliberation upon these factors, this Court held, ultimately, that

J.S.’ statements were not true threats. We acknowledged, inter alia, that the statements


                            [J-83-2017] [MO: Saylor, C.J.] - 22
and images on the website were not conditional, and that they contributed to a significant

impairment to Mrs. Fulmer’s well-being and to her career. Nevertheless, we found it

important that the threatening statements were not communicated directly to Mrs. Fulmer.

To the contrary, the “disclaimer” indicated that J.S. did not want school faculty to view the

material on the site. Moreover, there were no indications that J.S. had made other

threatening statements to Mrs. Fulmer, and it was “unclear if Mrs. Fulmer had any reason

to believe that J.S. had the propensity to engage in violence, more than any other student

of his age.” Id. at 859.

       We observed that a student’s First Amendment rights, though limited, are not

vitiated entirely by the fact of his being a student, and we recognized the criminal nature

of a true threat analysis. Id. at 856, 859, and 861. Accordingly, we held that the totality

of the circumstances did not support the School District’s determination that the website

contained sanctionable true threats:

       [T]he web site, taken as a whole, was a sophomoric, crude, highly offensive
       and perhaps misguided attempt at humor or parody. However, it did not
       reflect a serious expression of intent to inflict harm. This conclusion is
       supported by the fact that the web site focused primarily on Mrs. Fulmer’s
       physique and disposition and utilized cartoon characters, hand drawings,
       song, and a comparison to Adolph Hitler. While Mrs. Fulmer was offended,
       certain others did not view it as a serious expression of intent to inflict harm.
       Indeed, the actions, or inaction, by the School District belies its assertion
       that the web site constituted a true threat. To allow J.S. to attend class and
       extracurricular activities, even if during an investigation, and to only
       commence discipline well after the conclusion of the school year, severely
       undermines the School District’s position that the web site contained a true
       threat. The lack of immediate steps taken directly against J.S., and the lack
       of immediate notification of his parents about the web site, for the extended
       time period that passed in the case, strongly counters against a conclusion
       that the statements made in the web site constituted true threats.




                            [J-83-2017] [MO: Saylor, C.J.] - 23
Id. at 859-60 (footnote omitted).14

       In the case sub judice and in J.S., threatening language was communicated by an

online medium. In both situations, the targets of the threats were named specifically, a

factor to which I assign great weight in today’s case. In J.S., we found it particularly

important that the threats were not communicated directly to Mrs. Fulmer, see 807 A.2d

at 859, just as the threats in this case were not communicated directly to Officer Kosko

or Detective Zeltner.    Mrs. Fulmer suffered emotional trauma, perhaps even more

extensively than did the officers here.

       Despite these similarities, it is the content of the threats that distinguishes the

present case from J.S. We ultimately concluded that the eighth grader’s statements in

J.S. objectively could not be taken seriously, characterizing the threats against Ms.

Fulmer as “a sophomoric, crude, highly offensive and perhaps misguided attempt at

humor or parody.” Id. The depictions of Ms. Fulmer were cartoons, drawings, and absurd

comparisons to Adolph Hitler. The same cannot be said here. Although the cases share

numerous similarities, the threats themselves do not. Here, the threats to the officers

were real, specific, and violent, with nothing of record to indicate that the threats should

not be taken seriously or that Knox and Beasley were unable to carry them out. I discern

no substantive basis that would compel us to relegate Knox’s threats to the same category

into which we cast J.S.’ threats. Hence, I find J.S. to be readily distinguishable.


14      Ultimately, this Court held, while the School District could punish J.S. for his
expressive conduct pursuant to the United States Supreme Court’s decision in Tinker v.
Des Moines Independent Community Sch. Dist., 393 U.S. 503 (1969) (holding that a
school district may prohibit or punish speech if it demonstrates that the student speech
materially disrupts class work, results in substantial disorder in the school, invades the
rights of others, or if it is reasonably foreseeable that the speech will do so), the basis for
such punishment must rest upon school disruption rather than on the assertion of a true
threat. Relying upon Tinker, we held that the website “created disorder and significantly
and adversely impacted the delivery of instruction.” J.S., 807 A.2d at 869. Thus, the
District’s disciplinary action did not violate J.S.’s First Amendment rights. Id.


                            [J-83-2017] [MO: Saylor, C.J.] - 24
      Ultimately, because I agree with the result reached by the Majority, I concur.

However, I respectfully dissent as to the analysis developed and used by the Majority.

      Justice Donohue joins this concurring and dissenting opinion.




                          [J-83-2017] [MO: Saylor, C.J.] - 25
