By: Katie Casado
Published on: September 30, 2024
Freedom of speech is a core American value and a fiercely protected Constitutional right. The First Amendment states, “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or the press.”[1] Unfortunately, disproportionally targeting Black people and expression is also a core American value and one that shows itself in the use of rap and hip-hop lyrics against artists involved in criminal proceedings. In 1996, Carrie Fried, a social psychologist, presented three groups of ordinary people with lyrics to a folk song about a man killing a police officer; in one group, she attributed the song to a rapper, to another the original folk singers, and the third to a country singer.[2] The rap group was more critical of the rapper “author” and responded with concerns about government regulation. Another experiment in 1999 showed that potential jurors were more inclined to interpret rap lyrics as fact but that even authoring rap lyrics while charged with a violent crime would impact their perception of the defendant’s traits.[3]
Yet courts have consistently used rap lyrics against criminal defendants for decades, despite protests from artists, free speech defenders, and scholars. In 2013, the New Jersey ACLU identified 18 cases where prosecutors sought to admit rap lyrics as evidence, and 14 admitted them.[4] The most recent incident involving famous rappers Young Thug and Gunna has garnered media attention and sparked the reintroduction of the Restoring Artistic Protection Act (“RAP Act”). The RAP Act
Limits the admissibility of evidence of a defendant’s creative or artistic expression against the defendant in a federal criminal or civil case. The term creative or artistic expression means the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, including music, dance, performance, art, visual art, poetry, literature, film, and other such objects or media.[5]
In May 2022, rapper Young Thug (born Jeffery Williams) was arrested for violating Georgia’s Racketeer Influenced and Corrupt Organizations Act (RICO) as part of a 56-count indictment that included over twenty others.[6] The Fulton County District Attorney identified Young Thug as the leader of Young Stoner Life, what he believes is a violent street gang associated with murder, assault, and drug possession.[7] Another prominent rapper, Gunna (born Sergio Giavanni Kitchens), turned himself in after he was charged with one count of conspiracy to violate the RICO Act in connection to Young Thug’s charges.[8]
Amongst contested debate between the parties, a judge decided that rap lyrics by Young Thug and collaborators would be allowed as evidence in the RICO trial where prosecutors are connecting the label to organized gangs and violent crime.[9] The judge ruled that the state could use 17 specific sets of lines as evidence of the gang’s existence, the defendants’ membership in the alleged criminal conspiracy, and their state of mind regarding the crimes they are specifically accused of.[10]
Gunna posted on his Instagram on June 14, 2022, “I was raised to fight fire with water, even tho[ugh] my country’s amendments have failed me! Protect Black Art!”[11] Gunna and Young Thug are not the first rappers and Black men to be treated differently in the courtroom. Defense attorneys have pointed out that there are lyrics in other genres of music, like country, where lyrics describe violence or crimes but are not used against the singer. Prosecutors instead have been allowed to manipulate implicit racial biases jurors have against rap music to bolster criminal cases against Black male rappers. Various artists and labels have shown their support of Young Thug and Gunna and have also called for changes in evidentiary rules that protect rap lyrics and their composers.
Prosecutors, in this case and generally, speak to using lyrics not for their content but to support evidence of crimes committed. However, First Amendment and social justice advocates, defense attorneys, and supporters of the RAP Act argue that the evidence of rap lyrics is more prejudicial than probative, calling for an amendment to the Federal Rules of Evidence to prevent the admission of creative expression as a confession because those lyrics, as with lyrics across all genre, can be fictional or hyperbolic.[12]
While states are beginning to establish their own protections for artists, like California in 2022 requiring courts to consider specific factors when balancing the probative value of that evidence against the substantive danger of undue prejudice, it is not enough. [13] Courts across the nation must protect criminal defendants against their creativity being used against them both for the sake of creating prejudice that is unduly burdensome but because it fundamentally violates free speech. Passing the RAP Act would remove the guessing game from the court and instill a firmer standard that does not allow am
[1] U.S. Const. amend. I.
[2] Brendan O’Connor, Why are Rap Lyrics Being Used as Evidence in Court?, VICE ( Nov. 3, 2014 12:30 PM), https://www.vice.com/en/article/rdaba6/rap-lyrics-as-evidence.
[3] Id.
[4] Id.
[5] Restoring Artist Protection Act, H.R. 2952, 118th Cong. (2023).
[6] Michael Saponara, A Timeline of Young Thug’s YSL RICO Trial, BILLBOARD (Apr. 8, 2024), https://www.billboard.com/lists/young-thug-ysl-rico-trial-timeline/.
[7] Id.
[8] Id.
[9] Joe Coscarelli, Young Thug Lyrics Will be Allowed as Evidence in YSL RICO Trial, NEW YORK TIMES (Nov. 9, 2023), https://www.nytimes.com/2023/11/09/arts/music/young-thug-lyrics-ysl-rico-trial.html
[10] Id.
[11] Saponara, supra note 6.
[12] Kelly McGlynn, Jacob Schriner-Briggs, and Jacquelyn Schell, Lyrics in Limine: Rap Music and Criminal Prosecutions, American Bar Association (Jan. 11, 2023), https://www.americanbar.org/groups/communications_law/publications/communications_lawyer/2023-winter/lyrics-limine-rap-music-and-criminal-prosecutions/.
[13] Id.