California Governor Signs Bill Forbidding The Use Of Rap Lyrics As Criminal Evidence

Free Speech

from the speech-that-may-be-violent-is-speech-nonetheless dept

Rap music has long conveyed the narrative of the streets. As such, its subject matter often details violence, police oppression, and criminal activities. And the expression itself often provides the only legitimate potential source of income for people living in impoverished, high-crime areas.

But it’s only in recent years that cops and prosecutors have decided streetwise narratives are admissions of criminal acts. No one ever arrested members of N.W.A. for fucking the police (sodomy?) or Dr. Dre for going “187 on an undercover cop” (murder one plus “blue lives matter” enhancements). But when cases seem a little light on evidence, prosecutors are now introducing lyrics to recorded songs as admissions of guilt or, at the very least, admissions of conspiracies to commit crimes.

This flips the First Amendment on its head, converting expressive speech to criminal evidence. Rap lyrics are protected speech… right up until prosecutors unilaterally decided that they aren’t. All they need are receptive courts — ones which view violent lyrics as indicative of criminal violence, converting artistic expression into damning evidence.

First Amendment challenges continue, forcing some courts to reconsider the admission of artistic expression as evidence. And this friction between law enforcement and the violent fantasies of citizens doesn’t just affect rap music. It also affects people with no connection to the rap world — ones who use the freedom of the internet (and the freedom of speech) to engage in speech that may be highly disturbing, but is nonetheless completely legal.

It’s an incredibly gray legal area, one that will only be resolved via years of litigation and evidence suppression motions. At the moment, the Supreme Court appears willing to grant some First Amendment leeway when it comes to speech involving the detailing of criminal acts, even if it has yet to rule definitively on the issue.

But that may change in the near future. The top court in the land seems less and less concerned with constitutional protections. And prosecutors all over the nation continue to roll the dice on favorable rulings when submitting rap recordings as evidence of criminal guilt.

But it won’t be nearly as easy to make the First Amendment subservient to judiciary activism or law enforcement overreach in the state of California. The state’s governor has signed a bill that effectively takes rap lyrics off the table in criminal prosecutions, as Eddie Fu reports for Consequence of Sound.

Creative expression has scored a major victory in California, as Governor Gavin Newsom has signed a bill restricting rap lyrics from being used as evidence in court. The Decriminalizing Artistic Expression Act was unanimously approved by the state’s senate and assembly back in August before being signed into law.

Per Variety, a virtual signing ceremony was held featuring speeches from rappers including Killer Mike, Meek Mill, Too $hort, YG, E-40, and more. CEO of the Recording Academy Harvey Mason Jr. and leaders from the Black Music Action Coalition and Songwriters of North America also joined the ceremony.

The bill [PDF] does not completely lock law enforcement out of using rap lyrics as evidence. But it does create a new set of restrictions that must be met before prosecutors can introduce rap lyrics as evidence of criminal culpability. The law says lyrics are not admissible unless:

A court may admit evidence described in subsection (a) if the Government, in a hearing conducted outside the hearing of the jury, proves by clear and convincing evidence—

(1)(A) if the expression is original, that defendant intended a literal meaning, rather than figurative or fictional meaning; or

(B) if the expression is derivative, that the defendant intended to adopt the literal meaning of the expression as the defendant’s own thought or statement;

(2) that the creative expression refers to the specific facts of the crime alleged;

(3) that the expression is relevant to an issue of fact that is disputed; and

(4) that the expression has distinct probative value not provided by other admissible evidence.

So, not necessarily impossible. But it does shift the burden to the government to credibly allege intent and a connection between the lyrics and the criminal act being prosecuted.

It’s an incremental shift but a valuable one. It takes the onus off the defendant to prove their artistic expression isn’t linked to criminal acts and ensures prosecutors will be far more careful when attempting to convert protected expression into criminal evidence.

Filed Under: 1st amendment, california, crime, evidence, free speech, rap lyrics