Justice and Due Process

States Ignoring the First Amendment Is Landing Creatives Behind Bars

It is undeniable that rap music plays an important cultural role in today’s society and has only gained in popularity in recent years. It’s not only a large mode of expression for young black and brown individuals but also for young white “boys”, like myself. 

At the heart of this art form is the use of intricate lyrics that detail hyperbolic stories (often about wealth, life in various cities, and societal problems) that resonate with young audiences. Rappers’ lyrics have consistently played the role of entertaining and being a pulse for judging what issues are affecting society at different points in history. This might be exemplified best by the rap group NWA and their lyrics about racism in the 1980s and 1990s. 

Unfortunately, too often these artists’ lyrics are taken as literal depictions of events and are thus used to unfairly prosecute innocent individuals—primarily young black men—based on biases, stereotypes, and prejudices.

If you are a fan of rap, you know court cases that involved state prosecutors using rap lyrics to gain convictions have filled pop culture channels over the past few years. Rappers, including Tay-K, YNW Melly, Snoop Dog, and Drakeo the Ruler, have all had publicized court cases that involved the use of their lyrics. 

Currently, yet another high-profile case is underway that will also largely rely on the use of rap lyrics. Last month, Atlanta-based rappers Young Thug and Gunna were charged with various criminal activities under Georgia’s Racketeer Influenced and Corrupt Organizations (RICO) Act. In the indictment of these men, details stemming from their music videos and song lyrics were utilized to point toward their alleged association with the Young Slime Life (YSL) gang. 

While the use of lyrics has been seen as appropriate in some of these cases, those that directly recount an illegal act in question, this issue is primed to garner more scrutiny with the line between fact and fiction becoming more blurred within such lyrics.  

Important issues are being raised surrounding the constitutional appropriateness of such a practice, whether or not it discriminates against minority communities, and if it leads to wrongful convictions.

The cases of Antwain Steward and Vonte Skinner depict why these questions are of such importance.

In 2014, a local Virginia-based rapper, Antwain Steward, who uses the artist name “Twain Gotti”, was arrested for a double murder that occurred four years prior. His arrest stemmed from a tip that Mr. Steward had allegedly rapped about the murder on one of his recordings. 

While Mr. Steward’s lyrics largely do focus on criminal acts, he claims that the focus on these topics is because it resonates with an audience, not because it is a portrayal of who he is or his actions. 

The song lyrics from “Ride Out” were specifically used to tie Mr. Steward to the murders:

Walked to your boy and I approached him 

twelve midnight on his trap house porch

and everybody saw when I motherf******’ choked him

but nobody saw when I motherf******’ smoked him

roped him, sharpened up the shank then I poked him

.357 Smith & Wesson bean scoped him.

Despite the violent nature of these lyrics, they didn’t match significant portions of the double murder Mr. Steward was charged with—the time of day is wrong, there wasn’t a stabbing, the caliber of the gun is different, and there’s only one victim mentioned. Mr. Steward also consistently maintained his innocence. 

In the case of Vonte Skinner, who was convicted in 2008 of shooting an individual outside of his home, prosecutors read thirteen pages of Skinner’s lyrics. These were lyrics written months and years before the shooting occurred and were mentioned to demonstrate Skinner’s alleged violent nature. Eventually, Mr. Skinner’s conviction was overturned by an appellate court. The court ruled that the readings of his lyrics unfairly prejudiced the jury towards a conviction. 

For prosecutors and jurors, rap lyrics have a heightened sense of veracity when compared to other forms of music. This makes it extremely potent when used in trials. The state effectively uses lyrics to position jurors against defendants in nearly insurmountable ways. 

The effectiveness of rap lyrics in a state’s prosecution attempt is based on psychology explored in a 1996 experiment.

In 1996, an experiment was carried out that involved presenting potential jurors with lyrics from a folk song about a man who killed a police officer. To one-third of the participants, the lyrics were attributed to the folk group. To another third, they were attributed to a country singer. To the final third, they were attributed to a rapper. When the passage was represented as a rap song, or associated with a Black singer, subjects found the lyrics “objectionable, worry about the consequences of such lyrics, and support some form of government regulation.” When the same lyrical passage was presented as country or folk music, reactions to the lyrics are “significantly less critical on all dimensions.” 

Such findings demonstrate creative outputs in criminal trials are used in ways that primarily threaten minority individuals. Rap is exceptionally susceptible to racist pathology, so much so that the ACLU has asserted that “rap lyrics deserve a heightened level of protection as art, above and beyond common evidentiary protections.”

Rapping and playing up one’s criminal identity through portraying a character is a form of art. It is theoretically no different than an actor portraying a criminal in a TV show or movie. What becomes strange is that rap consistently seems to be the only criminalized form of art? 

Thinking about other forms of art being held to the same standards as rap music is almost comical. What if Edgar Allan Poe or Shakespeare were thrown in jail simply because they described a criminal act (both frequently write about murder, etc.) in their work, and then a similar act occurred on some another date? Or what if Leonardo DiCaprio was shown to be violent and have poor character because he portrayed a violent criminal in a movie? It would be viewed as ludicrous and outright ridiculous.

Rap lyrics, like other art forms, are protected as free speech under the First Amendment. But, all too often in trial after trial, prosecutors introduce this form of artistic expression to secure convictions for crimes. 

Ignoring lyrics protection under the First Amendment is dangerous as the permissibility of lyrics hinges on Federal Rule 403, which allows a “court to exclude evidence if the probative value is outweighed by a danger of one or more of the following: Unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Prosecutors using rap lyrics may be seen as “being unfairly prejudicial against the defendant.”

Unless the intent of lyrics is taken into account, these problems may cause a juror to falsely and incorrectly interpret rap lyrics as a threat or depiction of violence or unlawful conduct. As a result, important artistic messages may be stifled and individuals will be unjustly imprisoned. 

To illustrate how not putting up safety nets to art’s use in criminal trials could be detrimental, take the case of L.A.-based rapper Drakeo the Ruler. Drakeo the Ruler was ultimately acquitted for murder and attempted murder charges. 

During an interrogation, Detective Francis Hardiman told Drakeo his music would be “the soundtrack” in his murder trial because “jurors don’t like to see that stuff […] and [his] rap videos of you talking about shooting.” This occurred as prosecutors already had obtained audio of another individual confessing to the murder. If Drakeo was not acquitted, the inappropriate use of his lyrics could’ve led to a false conviction and possibly a life sentence.

States and public interest groups are beginning to fight back against this clearly racially biased and constitutionally apathetic policy. 

California passed the Racial Justice Act. This law makes it illegal for the state to convict or sentence someone based on their race, ethnicity, or national origin. This act grants defendants the ability to challenge their conviction or sentencing based on racially biased languages, disparities in sentencing, or other forms of racially motivated hostility. 

In August 2014, the New Jersey Supreme Court overturned the conviction of previously mentioned Vonte Skinner because the lyrics used against him couldn’t prove culpability. New Jersey Supreme Court Justice Jaynee Lavechia stated, “One cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views.” This decision effectively blocked the use of rap lyrics without clear nexus to a crime in criminal proceedings.

New York has also taken legislative action aimed at this problem. Their State Senate approved Senate Bill S7527 which, while not banning prosecutors from presenting lyrics or other material to a jury, would require proof that the work in question is meant literally, not in a figurative or fictional manner.

States must continue to take concrete action against this long-standing policy. Specifically, states must pass policies that place new measures, like requiring a strong nexus to a crime in question, on the use of song lyrics and creative expressions as evidence in criminal cases.

Rap is an art form that intentionally uses wordplay and exaggeration. While it may contain violent depictions, these must be viewed as a rapper developing and creating a compelling character. It is important to remember that rappers are simply narrators of their lyrics, not the lyrics themselves. This should be obvious as rappers often use stage names, yet the rapper and their lyrics are still too often mistaken as being one in the same. 

While it is okay to be off-put by rap lyrics, disgusted by them, or otherwise dismissive of them, it is not okay to allow these opinions to spawn violations of the First Amendment, perpetuate racist biases in the legal system, and wrongfully convict individuals.