First Amendment advocates slam use of rap lyrics as evidence – Courthouse News Service

Music is often seen as a powerful form of free speech and a way to speak out on societal issues. But for many hip-hop artists, their lyrics have landed them behind bars.
ATLANTA (CN) — Musical expression, a protected form of free speech, continues to be used by prosecutors to charge rap artists with crimes, including in the recent high-profile arrests of Young Thug and Gunna.
The two popular Atlanta artists, whose given names are Jeffery Lamar Williams and Sergio Kitchens, respectively, were among 28 defendants charged with conspiracy and street gang activity on May 11, under Georgia’s Racketeer Influenced and Corrupt Organizations Act.
Both men remain in police custody. On Monday, a judge denied bond for Kitchens and has set his trial date for Jan. 9, 2023. A bond hearing for Williams has been delayed.
Among accusations of felony drug possession with intent to sell, armed robbery and murder, the indictment includes details from Young Thug and Gunna music videos and lyrics cited as evidence of their alleged association with the Bloods-affiliated gang Young Slime Life, or YSL, which is also the abbreviation for their record label, Young Stoner Life.
Fulton County District Attorney Fani Willis said at a news conference that the First Amendment is “one of our most precious rights,” but added that it didn’t apply in this case.
“The First Amendment does not protect people from prosecutors using it as evidence if it is such,” she said.
Some judges have agreed with Willis, such as the ones on Maryland’s highest court who ruled in 2019 that rap lyrics may be admitted in court as evidence of a defendant’s guilt.
However, the New York State Senate passed a bill on Wednesday aimed at protecting musical expression . Known as the “Rap Music on Trial” bill, the legislation requires lyrics to be proven as “literal, rather than figurative or fictional” when using them as evidence in the state.
The first-of-its-kind bill is a monumental leap for the iconic hip-hop artists including Jay-Z, Meek Mill, Killer Mike and Fat Joe who have pushed for its passage after decades of criminal accusations being made in courts solely based on rap lyrics.
“It is a clear violation of the First Amendment to introduce fictional content as evidence against someone accused of a crime,” said Ken Paulson, director of the Free Speech Center at Middle Tennessee State University.
“No one would think of having a mystery writer’s book used against him or her in a court of law,” Paulson said in an interview. “The problem here is that America’s judiciary tend not to be diverse and they tend to be older. In other words, they don’t have a clue about rap music and it shows.”
Nearly half of all states — 22 in total — do not have a single high court justice who iden­ti­fies as a person of color, includ­ing 11 states where people of color make up at least 20% of the popu­la­tion, according to an April 2021 report from the Brennan Center for Justice.
With minority group members making up just 22% of federal judges, some say it is not surprising that prosecutors focus on rap lyrics by artists of color and never on “Goodbye Earl” by The Dixie Chicks.
“Prosecutors do this because they know it makes their job easy. They know that juries that aren’t familiar with rap music, will essentially rob the rap artist of a fair trial. It really creates a chilling effect for the artist and has very serious First Amendment implications,” said Jack Lerner, clinical professor at the University of California Irvine School of Law.
After learning about a case in San Diego where rapper Tiny Doo faced a possibility of life in prison based only off his lyrics and social media posts, Lerner was inspired to write “Rap On Trial: A Legal Guide for Attorneys,” along with Charis Kubrin, to help attorneys defend against the use of rap lyrics in criminal proceedings.
“There is experimental research that shows as soon as you bring in that kind of evidence, the jury is prejudiced immediately against the defendant. In those types of cases, prosecutors are leveraging misconceptions about rap music and anti-Black bias to make an end-run around the rules of evidence,” said Lerner.
These misconceptions about the genre have existed since it’s very beginnings. Since its emergence in the 80s, hip-hop has been under fire for its expression of societal issues that affect Black communities such as inequality, poverty, violence, tough-on-crime policies, hyper-policing and police brutality.
Law enforcement attempted to interrupt distribution of hip-hop group N.W.A.’s song “Fuck Tha Police” in 1988 and rapper Tupac Amaru Shakur’s “2pacalypse Now” album in 1992 based on claims the music incited violence, and lyrics were cited as murder confessions in accusations against Snoop Dogg in 1993 and Lil’ Boosie in 2012.
According to research by Andrea Dennis from the University of Georgia’s School of Law, prosecutors may try to use defendant-authored music lyrics as an autobiographical depiction of actual events, so that they’ll be treated as inculpatory statements or a confession. The lyrics may also be offered as evidence of the defendant’s intent, knowledge, motive, or identity respecting the crime charged. In addition, prosecutors use lyrics to construct a narrative framework or theory of the case, to paint a picture of the defendant at the time of the crime that is consistent with the prosecution’s evidence.
“As long as there has been Black people on American soil, the institutions of power in the U.S. have always sought to contain and often punish Black expression,” said Erik Nielson, liberal arts professor at the University of Richmond, who wrote “Rap on Trial; Race, Lyrics, and Guilt in America” along with Dennis.
According to statistics the NAACP examined, although Black people make up 13.4% of the U.S. population, they make up 22% of fatal police shootings, 47% of wrongful conviction exonerations and 35% of inmates executed by the death penalty. They are incarcerated in state prisons at five times the rate of whites and Black men statistically receive harsher prison sentences than white men who commit the same crimes, according to the U.S. Sentencing Commission.
After the “The Message” of the impoverished conditions of urban housing projects from the pioneering rap group Grandmaster Flash and the Furious Five in 1982 was ignored by those in power, the pain of civil rights struggles grew darker and hip-hop music became more aggressive over time.
These conditions are still reflective in Atlanta where the alleged crimes of the YSL gang took place. It has been repeatedly ranked as the top city for income inequality in America by the Brookings Institution, with about 30% of Black households living in poverty.
“When I testify in some of these cases, my goal is really to explain rap music as an art form because I think what underlines this practice is the sense that rap isn’t real music and that the young Black and Hispanic men who are producing it are not intelligent enough to create something complex and sophisticated, and so its much easier to just read it or listen to it as autobiography,” said Neilson, whose research focuses on the relationship between Black artistic expression in the U.S. and the law. “So when I’m talking to a jury, one of the things I try to point out is all of the artistry that’s involved, and also the industry pressures that often motivate amateur artists to adopt these sort of violent personas.”
He likened violent lyrics to other things in popular culture, like horror novels and gangster movies.
“So what I try to explain is, ‘hey I know these lyrics may seem shocking to you, but its actually part of a genre and has helped fuel a multi-billion dollar industry.’ You’ve got Kendrick Lamar winning a Pulitzer prize and there are hip-hop archives at Harvard. To criminalize it has a chilling effect on speech, particularly because a lot of rap music is political in nature, which is the type of speech that should be entitled to the most protection in this country, but we’re seeing the opposite,” said Neilson.
The rise of more violent music increased hip-hop’s popularity, and in 2017 it officially became America’s number one music genre, with the entertainment industry further fueling a culture reflective of the real world violence driven by lack of economic opportunity.
“America’s preoccupation with violent activity is pervasive and can be found, for example, in virtually all of the entertainment industry. As a result, of the prevalence of violence in music, movies, television and video games, America has nurtured an environment that some have come to call a culture of violence,” wrote Jeanita Richardson, senior policy analyst of the State Council of Higher Education for Virginia, and Kim Scott, assistant professor of Hofstra University, in a 2002 journal article.
They added, “If there is in fact a culture of violence, the true parent of rap lyrics is America herself, who financially rewards the glamorization of behaviors deemed socially unacceptable. America’s urban centers in general and low-income minority communities in particular, are replete with poverty, police brutality, drug abuse, educational inequality, high dropout rates and violence. The very governmental and social systems theoretically established to protect the poor, have engendered distrust. Rap music became a cathartic outlet.”
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