Using Rap Lyrics As Evidence Of A Criminal Conspiracy Threatens First Amendment, Unlikely To Succeed
The Supreme Court has taken two swings at this issue: whether or not artistic expression can also be evidence of criminal activity. Two cases with obviously serious First Amendment implications and yet the nation's top court felt there was no need for it to establish a bright line that might deter future prosecutions based on what should be considered inadmissible evidence.
In 2015, it handled the Elonis case - one that involved Anthony Elonis, a disgruntled divorcee who wrote some very nasty lyrics about imagined fates his ex might experience. The court took a pass on the biggest issue, stating that procedural issues in the lower court made it possible for it to dodge the larger issue.
There is no dispute that the mental state requirement in Section 875(c) is satisfied if the defendant transmits a communication for the purpose of issuing a threat, or with knowledge that the communication will be viewed as a threat.... In response to a question at oral argument, Elonis stated that a finding of recklessness would not be sufficient.... Neither Elonis nor the Government has briefed or argued that point, and we accordingly decline to address it... (this Court is poorly situated" to address an argument the Court of Appeals did not consider, the parties did not brief, and counsel addressed in only the most cursory fashion at oral argument"). Given our disposition, it is not necessary to consider any First Amendment issues.
This SCOTUS punt was followed by another in 2019, when the top court decided it really didn't need to address the most important issue in a criminal case where a Pittsburgh rap artist faced criminal charges buttressed by the prosecution's quoting of one of his tracks, the NWA-tribute Fuck the Police." That case made its way to Washington D.C. where it was given the brush-off by the Supreme Court.
The Supreme Court declined Monday to take up the case of rapper Jamal Knox, who argued he was sent to prison for a song that was protected by the First Amendment.
Because this remains unsettled, law enforcement is still seeking to convert arguably-protected expression into criminal evidence. This is a practice that dates back decades. In the early 1960s, the FBI opened an investigation into the recording of Louie, Louie" by The Kingsmen, assuming the lyrics agents couldn't understand must be obscene. The investigation was eventually closed after the FBI decided to check the lyrics via the US Copyright Office, with agents somehow still failing to hear the fuck" uttered by the drummer when he dropped his drumsticks during the studio recording.
Because there's no precedent suggesting turning song lyrics into criminal evidence might be an unconstitutional idea, the practice continues.
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.
Georgia prosecutors have offered this comprehensive defense of their incursion onto First Amendment turf.
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.
Ah. Well, that answers all the questions. It simply does not apply." Fantastic.
Maybe the First Amendment won't matter as much where the case is filed. It's a RICO case, which generally means the government needs to identify the connective tissue between the criminal charges to support the RICO claims. Usually, RICO cases are federal since they almost always include things like interstate commerce" and the sort of drugs/money nexuses federal prosecutors generally end up handling even if it's the local boys making the arrests.
This case, however, is being handled locally, utilizing Georgia's own RICO statutes. It's supported by an 88-page indictment [PDF] - one that considers a lot of rap lyrics to be evidence of a criminal conspiracy. The indictment also claims social media posts showing YSL pendants or slogans is also evidence of this conspiracy.
The inclusion of lyrics is going to pose problems for the prosecution. It may not stop the prosecution (several other crimes not related to rap lyrics are alleged) but it's definitely going to cause problems, despite the dearth of Supreme Court precedent. Here's just one problematic part of the state's indictment:
This block of text says nothing more than one defendant appeared in a rap video and said a bunch of stuff about selling drugs and committing violence. Whether or not he actually did do these things remains to be seen, but the state should have to prove its case without throwing the First Amendment under the bus.
There's more along the same lines:
Again, this says nothing more than suspects appeared in a video, made some hand gestures, and said things like I told them to shoot a hundred rounds" and... um... I get all type of cash."
About a third of the indictment refers to nothing more than social media posts or rap videos. The rest refers to actual criminal activity that has no nexus with the First Amendment. It would seem the state could make its case without trying to limit free speech rights but, as the prosecutor stated above, the state has decided the First Amendment simply does not apply here.
I guess we'll see if it does. The court is going to hear from the prosecutors but that won't be the only side it's hearing. First Amendment rights activists are already asking the court to seriously consider the First Amendment implications of this extremely broad indictment.
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."
An op-ed penned by Evette Dionne for MSNBC echoes these concerns:
It's nearly impossible to prove that a rapper's content can be directly linked to real-world crime, but that hasn't stopped prosecutors from attempting to use the strategy to bury them. Shmurda's 2014 hit song Hot N*gga" was heavily scrutinized and treated as if it were evidence. The same was done to Boosie and Drakeo the Ruler when they were on trial for murder. And it's only expected to increase after the State of Maryland declared it legal to enter rap lyrics as evidence in murder trials. By treating rap music as more than mere expression, America's legal system is putting an entire genre on trial, as if the world's most popular gene is a scourge that must be eradicated.
Prosecutors like these odds. Nearly impossible" just means possible" when you have an unlimited amount of resources to work with. The government can pursue ill-advised cases because it's not using its own money to generate adverse precedent, and if it can secure a few plea agreements, that's all it really needs to justify its existence. The rights the government is supposed to respect are treated as expendable until ruled otherwise.
As long as precedent doesn't make it clear these sorts of prosecutions are highly suspect, law enforcement will continue to destroy what's left of its relationship with minority communities.
There's nothing inherently new about state and federal governments criminalizing Black men. But insisting that the music they've created is evidence of their criminality is a self-fulfilling cycle that leaves little room for rappers to paint a picture about their upbringing and experiences. That doesn't mean there isn't space to critique hip-hop, particularly as it relates to its depictions of women - C. Delores Tucker was right - but intracommunal policing doesn't look like censorship or incarceration. Instead, it protects a rapper's right to the free speech afforded to them in the First Amendment while also engaging in rigorous debate about the merits of the music and the harm it might evoke. Those are different aims than incarcerating rappers for the hell of it, sometimes charging them for crimes their affiliates committed.
The court handling this should throw out everything pertaining to lyrics and most of the social media posts - especially the ones that show little more than the existence of gang-related" jewelry. That's the court's job: to ensure rights are protected while handling criminal cases. But it appears the prosecutors believe it won't. That's likely why they've chosen to pursue these charges under state statutes, rather than allowing the case to be taken over by federal prosecutors. If this goes poorly, maybe it will finally force SCOTUS to follow through on an examination of these issues. Rap isn't going to go away and it's still going to document the violence observed by artists. If meaningful limits aren't imposed, this is just one more way law enforcement can inflict pain on minorities and continue funneling them into the prison system.