Summarizing the Issue of Rap Lyrics Used Against Defendants in Court
The entertainment and rap world is complex. Equally as complex are the zealous efforts of prosecutors. Recently, these two worlds have collided as more attention has come to focus on the use of rap lyrics by prosecutors in criminal cases against the artists.[1] Most notably, rapper Yung Thug was indicted for conspiring to violate the Racketeer Influenced and Corrupt Organizations (“RICO”) Act.[2] Prosecutors alleged that Yung Thug co-founded a street gang called Young Slime Life, also known as YSL, in 2012.[3] Coincidentally, Yung Thug’s music label bears the same acronym, but is short for “Young Stoner Life.”[4] The prosecutors did not argue that Yung Thug in particular committed murder or attempted murder. Rather, they argued that he was involved in a car rental that was used to kill a rival gang associate named Donovan Thomas Jr. in 2015.[5] The prosecutors also alleged that Yung Thug later promoted the activities of the YSL gang in songs released from 2016 through 2021 not just through lyrics, but also in music videos that included individuals associated with the YSL gang and displayed symbols of the gang.[6] Indeed, at trial, lyrics from one of Yung Thug’s songs were read aloud by the judge.[7] The overall theory of the case was that these lyrics, other songs, and the music videos served as “overt acts” to preserve the power, reputation, and territory of the YSL gang’s enterprise.[8]
The music industry has spoken out against the use of rap lyrics in court in response. Specifically, a coalition led by Warner Music Group, the third largest music conglomerate, has urged prosecutors and legislators at the state and federal levels to limit the use of rap lyrics as evidence on the grounds that it unfairly prejudices juries against defendants.[9] Warner is also the parent of 300 Entertainment which is the distributor of Yung Thug’s label.[10] Several other major players in the entertainment world also signed the letter including one of Warner’s rivals Universal Music Group, as well as Sony Music Group and platforms such as Spotify and TikTok.[11] Executives in the music industry also argue that when prosecutors treat rap lyrics as de facto confessions or pure biography, they fundamentally misunderstand how art works.[12] In support of this, Professor Erik Nielson of the University of Richmond points out that prosecutors oftentimes “cherry-pick lyrics and decontexualtize them” and will do so “without any knowledge or understanding of rap music at all.”[13] Expectedly, artists have been speaking out as well. For example, rapper Bobby Shmurda, who served time from 2016–2021 spoke out about the dangers of using lyrics in court saying, “When they say rap can be used against you, it limits your art because sometimes people just wanna be free.”[14] In all, comments from the music and entertainment industry boil down to concerns as to whether the use of lyrics in court blur the line between freedom of expression and reality.[15] On the prosecution side of the equation, Fulton County prosecutor Chris Timmons stated that the use of lyrics is more narrow than people are assuming. Specifically, he stated that the use of lyrics is really only to show that there is a “relationship” between defendants and that if there is a specific enough confession, whether it is a rhyme or if it is “set to music,” a prosecutor will want to use it.[16]
Although the use of rap lyrics in court has garnered attention in Yung Thug’s high-profile case, the phenomenon is not new. According to Professor Nielson, rap lyrics have been used against artists about 500 times since 1991, and that is a conservative estimate as his study only incorporates the cases that went to trial and were not pled out.[17] Indeed, another high-profile case goes back to 1998 when a young rapper named Mac (whose real name is McKinley Phipps) was convicted of manslaughter and sentenced to 30 years in prison after someone else confessed to the killing.[18] Professor Nielson has stated that Phipps’ case was the most egregious case of lyrics being used in court.[19]
As for the future, there is some movement to limit the use of lyrics in the courtroom against artists. At the federal level, for example, the RAP (“Restoring Artistic Protection”) Act was introduced in the House of Representatives to limit the use of creative or artistic expression against a defendant in a federal criminal case.[20] Since being introduced, however, there has not been any subsequent action. At the state level, California’s governor, Gavin Newson, signed the Decriminalizing Artistic Expression Act which restricts the use of rap lyrics in state court.[21] Additionally, the state Assembly in New York is set to vote on a similar measure this year.[22] In all, these efforts at least represent a legislative solution to stem an issue for the world of entertainment law, First Amendment law, and American culture.
Footnotes
