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Lyrics: Expression or Evidence?

*The views expressed in this article do not represent the views of Santa Clara University.

CREDIT: Young Thug at Openair Frauenfeld, 2019. Frank Schwichtenberg|Wikimedia Commons

Rappers Young Thug (Jeffery Lamar Williams) and Gunna (Sergio Kitchens) have found themselves in deep legal trouble this year, as the artists are now involved in a criminal indictment involving their rap label, Young Stoner Life Records (YSL). Georgia prosecutors have charged Young Thug, Gunna, and other members of YSL with operating a violent street gang founded in Atlanta with ties to the national Bloods gang. They have also been charged with many other crimes, such as Possession with Intent to Distribute (Illegal Substances) and conspiracy to violate the Racketeer Influence and Corrupt Organizations Act (RICO).

The initial indictment contained 56 counts against 28 people for alleged involvement in crimes committed on behalf of the YSL street gang. The updated indictment now contains 65 counts. Young Thug, the creator and face of the YSL, is facing six new felony charges along with four others linked to the case. He now faces additional charges of participation in criminal street gang activity, violation of the Georgia controlled substances act, possession of a firearm during the commission of a felony, possession of a machine gun, and various drug charges.

The prosecutors for Young Thug and Gunna’s indictment have used the rappers’ own lyrics against them, raising the controversial issue of whether or not someone should have their creative expression applied in a court of law as evidence against them. The prosecution is standing its ground on its decision to bring lyrics into the courtroom as evidence. One track heavily cited at the beginning of the indictment is from Thug’s popular song, “Slatty.” The lyrics state, “I killed his man in front of his momma, like f**k lil’ bruh, sister and his cousin/I shoot out/Kill ’em, not leaving a trace.” Fulton County District Attorney, Fani Willis, also expressed beliefs that YSL’s lyrics make them directly liable for “in excess of 50” murders due to gun violence since 2015. What were once fictional lyrics are now being treated as reality, setting a dangerous precedent for street rappers everywhere.

This precedent, the act of using an artist’s creative expression as evidence against them, violates the First Amendment, which grants U.S. citizens the right to free speech. However, this protection does not apply if there appears to be a “true threat” in the speech. Yet, while rap music often speaks on the shocking aspects of “street life” in ways that could be perceived as threats, lyrics do not always imitate reality. Lyrics are a creative outlet for the imagination and it is popular for rappers to talk about much more extreme “street life” circumstances than they have actually experienced. The correlation between hyperbolized lyrics and real life crimes do not always equate to guilt. This abstract connection would be unconstitutional if used to find artists liable for crimes simply because they expressed their creative ideas through lyrics.

While some states agree with this sentiment, others have the opposing view, giving to a dissimilitude in legal precedents set throughout the United States. For example, in 2014, the Supreme Court of New Jersey held in New Jersey v. Skinner that lyrics were not admissible as evidence, stating that “fictional forms of inflammatory self-expression . . . are not properly evidential unless the writing reveals a strong nexus between the specific details of the artistic composition and the circumstances of the underlying offense for which a person is charged, and the probative value of that evidence outweighs its apparent prejudicial impact.” Skinner’s decision to write profane rap lyrics that suggested criminal activity bore little or no probative value as to any motive or intent behind the attempted murder offense with which he was charged.

Similarly, in 2021, the “Rap Music on Trial” legislation, S.7527, passed the New York State Senate. The legislation would ban prosecutors from using art created by a defendant as evidence against them during trial. This bill came after the public 2019 New York case involving rapper Daniel Hernandez, better known as Tekashi69, where his rap lyrics were admitted as evidence and used to coerce him into becoming a government witness. While “Rap Music on Trial” does present a positive change in New York’s protections for creative expression and free speech, those protections are not nationwide. As recently as December 2020, Maryland’s highest state court, the Maryland Court of Appeals, held that rap lyrics were admissible as evidence and used them to charge a man with 50 years in prison.

In an attempt to standardize protections for creative expression across the United States, the “Restoring Artistic Protection Act,” or RAP Act, was introduced in the House of Representatives in July 2022. Cosponsored by Democratic Representatives Hank Johnson (GA) and Jamaal Bowman (NY), the RAP Act states that “evidence of a defendant’s creative or artistic expression, whether original or derivative, is not admissible against such defendant in a criminal case.” Apart from a few exceptions, this legislation would bar the use of lyrics as admissible evidence in trial to prosecute artists. Should the RAP Act be passed, artists would be able to more freely express themselves without the looming fear of unjust punishment.

It is important to emphasize how the threat of having lyrics used against an artist in court could deter rappers from releasing authentic content. Will the art form change drastically because creators are afraid that their fictional content will be taken advantage of and manipulated in a court? Or, conversely, will the law change, following New York’s precedent in support of the First Amendment? The answers to these questions will become more clear as the RAP Act progresses and after the YSL trial, which is set to commence on January 9, 2023.


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