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Is Art Evidence? Rap’s Right in Court

Young Thug performs at Openair Frauenfeld, a music festival in Frauenfeld, Switzerland, in 2019.
Young Thug performs at Openair Frauenfeld, a music festival in Frauenfeld, Switzerland, in 2019. By Courtesy of Frank Schwichtenberg / Wikimedia Commons
By Emma H. Lu, Crimson Staff Writer

Opening statements for the trial of Young Thug and Young Stoner Life Records (YSL) began on Nov. 27, over a year and a half after Young Thug’s May 2022 Georgia indictment. The prosecution alleges that Young Thug and members of YSL — a label he founded — are in violation of the ​​Racketeer Influenced and Corrupt Organizations Act and responsible for criminal activity by Young Slime Life — a gang that shares this same acronym. The prosecutors will be admitting rap lyrics as evidence in the trial, to the outrage of many in and outside the music industry alike who claim that this usage unjustly capitalizes on racial prejudice against Black artists.

Rap is a genre of music with origins in the 1970s in the Bronx, New York, which has since had several evolutions in conjunction with hip-hop. The rise of hip-hop music more broadly originated from African-American, Afro-Caribbean, and Latinx youth as they were experiencing the instability of the broader political and economic climate and revolutionary movements for progress. These roots hold strong in the genre today.

Young Thug’s case is just one of many where rap music has been treated as criminal evidence in a court of law. In 2014, lyrics were used against San Diego rapper Tiny Doo in charges of gang conspiracy; he spent eight months in jail before these charges were dismissed.

More recently in 2021, New Orleans rapper Mac Phipps was released on parole after serving 21 years for his conviction for a murder outside a club where he was performing — even as another man working security at the club confessed to the crime. With no past criminal record nor physical evidence, prosecutors brought Phipps’s rap lyrics to trial as one stated to an all-white jury: “‘Murder, murder, kill, kill;’ ‘Pull the trigger, put a bullet in your head.’ Those are some of the lyrics that this defendant chooses to rap when he performs.”

Rap seems to be an exception when it comes to music. After all, there was no legal scrutiny when in “Folsom Prison Blues” Johnny Cash wrote, “I shot a man in Reno just to watch him die.” In fact, according to the Warner Music Group, over 500 cases have been found that involve rap as evidence in public records — while just four instances since the 1950s of non-rap lyrics were submitted as evidence.

This pattern holds alarming implications for the right to artistic expression protected under the First Amendment, in particular for Black artists. According to University of Georgia School of Law professor Andrea Dennis in her text “Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence,” one intention for prosecutors to allow music lyrics to be used in the courtroom would be to redefine them as substantive evidence, wherein they would be treated as autobiographical depictions of reality. Thus, the lyrics would not be protected by the First Amendment because they are treated as evidentiary use of speech — or, more plainly, as a confession.“Essentially, courts fail to treat rap music lyrics as an art form,” Dennis surmised. “Courts treat rap music lyrics as everyday, conversational-type speech and analyze the admissibility of rap music lyrics without information pertaining to the creation and utility of rap music lyrics.”

Applications of this treatment certainly hold true for cases today. “I think if you decide to admit your crimes over a beat, I’m gonna use it,” stated Fulton County District Attorney Fani Willis — whose office filed for indictment of Young Thug and YSL — in a press conference in August 2022.

This rejection of rap as a legitimate art form is indicative of a much wider ignorance of the genre, as well as its overlooked historical context in society. For instance, the American Civil Liberties Union described “drill rap” in a news publication as a genre whose lyrics may sound violent to those unfamiliar with it, but is in truth intentionally “characterized by themes of gun violence, maintenance of neighborhood boundaries, and the tragedy of lives lost or taken.”

As many artists and scholars point out, many rappers adopt a persona in their art in order to speak to a facet of reality they might bear witness to. Thus, bringing in rap lyrics as criminatory evidence, as stated by a change.org petition with over 93,000 signatures created by music industry executives Kevin Liles and Julie Greenwald, “punishes already marginalized communities and silences their stories of family, struggle, survival, and triumph.”

Within the context of a trial, however, constitutional law professor Kermit Roosevelt acknowledges the First Amendment concern, but believes this is not the biggest issue concerning the use of rap lyrics in court: “I think the greater problem is the standard evidentiary issue of, ‘Is this going to help us get to the truth?’ or ‘Is this going to mislead the jury?’” he said in an episode of Law&Crime's Sidebar Podcast.

The concern of misconceptions from the truth is affirmed by several studies that explored the societal perception of rap. A 1999 study by Dr. Stuart P. Fischoff, for instance, showed that when participants were given a hypothetical case of an 18-year-old Black male accused of murder, those who were shown rap lyrics in connection to the defendant’s profile were more likely to believe in their guilt. In that sense, rap lyrics function not as substantive evidence, but as a narrative device that characterizes the defendant in such a way that makes jurors vulnerable to their prejudice, leaving lyrics with little probative value.

The #ProtectBlackArt movement, sparked in the summer of 2022, has prompted legislative response. New York and California have passed laws that require prosecutors to justify the admission of rap lyrics when seeking to use them in court and prove the relevance of the evidence. U.S. Representative Hank Johnson (D-GA) introduced the Restoring Artistic Protection (RAP) Act to Congress in April of this past year.

The trend of analyzing rap lyrics in the courtroom has illuminated the double standard applied to Black artists in their craft. When art as a conduit of self-expression is used to persecute those marginalized, it can only serve to punish them for their personhood and identity. In the pursuit of justice, this unethical reality can not be ignored.

—Staff writer Emma H. Lu can be reached at emma.lu@thecrimson.com

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