Over the past few weeks, Americans across the country have joined together in protest against injustice. While the catalyst for this movement was the death of George Floyd after a brutal encounter with Minneapolis police, we’re finally starting to see the ways in which this incident reflects systemic racism in American politics, government, culture and law. One particularly egregious sphere in which black Americans suffer discrimination is in the courts’ treatment of artistic expression, specifically rap lyrics.
Ever since rap emerged in the 1970s, police and prosecutors have seized on the lyrics to criminally prosecute its creators. Although seemingly the relic of a dark Victorian past or the harbinger of a dystopian future, this punitive practice continues today. For a myriad of reasons — legal, social and ethical — it’s time we put an end to this misguided miscarriage of justice.
Most Americans, even those familiar with these issues, would be hard-pressed to think of an art form that is more often used as evidence to prosecute crimes. Over time, prosecutors have developed an arsenal of legal tactics that rely on rap songs as evidence. They include using lyrics to demonstrate a “true threat,” to show intent or motive, to prove gang affiliation, and, perhaps most problematically, to dehumanize a defendant.
Yet these tactics are built on shaky legal foundations. For example, the attorney for YNW Melly, a mainstream rapper, has said he expects the prosecution to introduce Melly’s lyrics to his song “Murder on my Mind” at the trial in the death of two of the performer’s associates. Given current courtroom practices, that is a reasonable expectation. But the song was released one and a half years before the alleged crime. This caveat, however, is unlikely to deter prosecutors from somehow thinking he had murder on his mind for that long.
In the case of LA-based rapper Drakeo the Ruler, the Los Angeles district attorney is attempting to convict Drakeo of murder by using the rapper’s lyrics to show why Drakeo and his crew attended the party where the murder took place. But this makes a lot of big assumptions about the relationship between rap and reality.
Similarly, in the trial of Tekashi 6ix9ine, lyrics were introduced to make it seem as if the rapper threatened rival gang members in the song. These lyrics did not help prosecutors prove anything in the trial; they were instead used to display the rapper’s gang persona without ever grappling with the very real (indeed, likely) possibility that such a persona is little more than a marketing tool used to sell records.
Given countless more examples, the hard truth is that using rap as evidence is a legal rationale that doesn’t hold water. That rationale rests on the implicit belief that rap is unlike all other forms of art. Our legal system seems to unquestioningly accept that authors of crime novels — even those strikingly similar to real-life incidents — had nothing to do with those crimes. No prosecutor that I know of ever attempted to arraign Johnny Cash for murder by citing the lyric, “I shot a man in Reno just to watch him die.”
That’s because we know art is not reality. It occupies a special realm, one removed from the real world in which crimes are committed, investigated and prosecuted. While this gap doesn’t constitute a zone of immunity, the Constitution — and the courts that uphold it — rightly allows only the narrowest window in which acts of artistic expression can be used as evidence against their creators — where the criminal act and the hateful speech are so immediately connected as to be wrapped up together. Rap clearly doesn’t fall into that narrow space.
Andrea Dennis, a scholar on the subject and co-author of the book Rap on Trial, writes that permitting rap lyrics to be admitted into a trial as evidence presumes that “interpreting and understanding rap music lyrics is not a subject requiring specialized knowledge, rap music lyrics should be literally understood; and rap music lyricists depict accurate, truthful, and self-referential narratives.” Replace “rap” with any other form of music or art and those three assumptions clearly fail the sniff test.
Treating rap as a form of speech that is not art so we can prosecute defendant-artists is counter to the First Amendment protections afforded by the Constitution to political speech and political hyperbole. Given rap’s political and artistic origins and characteristics, it must be afforded the same protections as any other form of art. Especially at a time when we’re realizing the corrosive effects of systemic racism, we cannot continue to allow a black art form to be deployed for prosecutorial gain—especially against people already at such grave disadvantage in the justice system.
The tragic death of George Floyd — and the deaths of so many black Americans — teaches us that, not only is now the time for change, but that the extent of the change must be comprehensive. Let’s start in the courtroom, safeguarding the right of black Americans to freely express themselves artistically, without fear that the content of that expression will be turned against them.
With more than 25 years in the media and entertainment sector, Ed Klaris is a recognized expert on intellectual property, privacy, and media law. He is the CEO of KlarisIP, a boutique consulting and managed services firm focusing on IP rights & royalties, digital asset management and metadata, and Managing Partner of Klaris Law, a boutique media, entertainment, technology and intellectual property law firm. Klaris has been an adjunct professor at Columbia Law School since 2005.