Lyrics for Lockups: Using Rap Lyrics to Prosecute in America
| Citation | Vol. 69 No. 3 |
| Publication year | 2018 |
Lyrics for Lockups: Using Rap Lyrics to Prosecute in America
Briana Carter
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Bob Marley once sang, "I shot the sheriff, but I did not shoot the deputy."1 Yet, he never went to jail for shooting that sheriff (possibly because he did not shoot the deputy). Instead, this line became known as the starting phrase of one of his most popular songs.2 While it may make sense to some why Marley's lyrics were art and not a confession to shooting his hometown sheriff, in some states, an artist's lyrics can be used as evidence to prosecute.3 More specifically, states have differed on the admissibility of a rap artist's lyrics as evidence for prosecution.4 These differences range from not being able to use the rap lyrics at all,
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the ability to use the rap lyrics in certain cases, to the ability to use the rap lyrics in any instance.5 Further, as the issue has grown, prosecutors face varying challenges from defendants on evidentiary grounds, and courts vary on how they interpret the Federal Rules of Evidence in reference to these challenges.6
So, why the stark difference from state to state? Some states express concerns with tampering with an individual's First Amendment7 rights by using rap lyrics to prosecute.8 After all, the First Amendment literally says, "Congress shall make no law . . . abridging the freedom of speech."9 Critics argue that using rap lyrics to prosecute a defendant abridges the freedom of speech by virtually stopping artists from writing lyrics (or certain lyrics).10 The basic principal is that if someone knows their rap song or lyrics can be used against them at a later date, they will be less likely to express themselves in that way.11 Allowing courts to use rap lyrics to prosecute with no interference from Congress on these constitutional grounds stifles and abridges the freedom of speech.
Adding fuel to the fire is a recent decision by the Supreme Court of the United States on a similar issue.12 In Elonis v. United States,13 Anthony Douglas Elonis faced charges for what the prosecution considered threats to his ex-wife and co-workers. The issue arose around Elonis' self-styled rap lyrics posted on Elonis' Facebook page.14 Elonis began making the posts after a series of events in his home and work life.15 Elonis took to Facebook to express his anger and frustrations with his situation using poetic rap-style posts to convey his thoughts.16 For example, he separated
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his sentences into stanzas,17 used exaggerative language, and even changed his name on Facebook to "Tone Dougie."18 When faced with the indictment, Elonis contended that the charges against him were inappropriate because he did not actually intend to threaten his victims and that this was a violation of his First Amendment right to freedom of speech.19
While Elonis' ex-wife and former employer saw him as a threat, Elonis compared himself to Eminem.20 For example, Elonis wrote:
Fold up your [protection-from-abuse order] and put it in your pocket Is it thick enough to stop a bullet?
Try to enforce an Order
[T]hat was improperly granted in the first place
Me thinks the Judge needs an education on true threat jurisprudence And prison time'll add zeros to my settlement.21
Elonis' degrading and violent message is somewhat comparable to Eminem's discussion of his relationship with his ex-wife in various songs.22 For example, in the best-selling single, "Love the Way You Lie," featuring Rihanna, Eminem wrote:
You swore you'd never hit 'em, never do nothin' to hurt 'em
Now you're in each other's face
Spewin' venom in your words when you spit 'em
You push, pull each other's hair, scratch, claw, bit 'em.23
In this instance, similar to Elonis, Eminem speaks of violence and turmoil in a relationship. However, unlike Elonis, Eminem was not prosecuted for making threats or admitting to past instances of abuse.24
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Instead, Eminem was awarded with several weeks on the Billboard Hot 100.25 It seems quite unfair that Eminem is allowed to use this type of lyrics to express himself while Elonis would not get the same freedom. The Supreme Court of the United States understood this point. The Court held that the rap-styled posts were not true threats26 because Elonis did not have the subjective intent27 to issue a serious threat. While Elonis' language may have been lude and vulgar, this type of speech still deserves protection, as it could lead to the elimination of an entire genre of artistic expression. Even though the problem may seem to be resolved from here, this defense would only work in instances where the defendant is being prosecuted for an actual threat. Because prosecutors have used rap lyrics for other reasons,28 the Supreme Court's decision has not resolved the full issue.
The other side of the First Amendment argument is that the lyrics are not protected speech.29 Although the First Amendment protects freedom of speech, the government must still provide some safeguards for instances when this speech interferes with the safety and comfort of citizens.30 These critics argue that rap lyrics can interfere with this safety and comfort by issuing threats.
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In a Rolling Stone article titled Rap on Trial: Why Lyrics Should be Off-Limits,31 author Erik Nielson discusses the potential issues that arise when a jury receives lyrics as evidence.32 For example, Nielson draws on his experience of testifying in the case of Anthony Murillo. The prosecutors accused and convicted Murillo's friend, Shane Villalpando, of the sexual assault of two female students. According to prosecutors, Murillo then threatened these two female students in a song he posted online, "A Moment of Life (Remix)". Prosecutors pointed to the fact that Murillo referred to the two students by name and said, "You're gonna end up dead . . . because I'm coming for your head, bitch."33 After a lengthy battle of the charges being dismissed and then reinstated, the California Court of Appeals "unanimously ruled that a reasonable listener could have understood Murillo's song to convey a serious expression of intent to commit violence against the victims."34
While Nielson acknowledged the vulgar and violent nature of the song, he still saw the artistic value in the lyrics as a piece of rap culture.35 In fact, Nielson actually testified as an expert in Murillo's trial, where Neilson emphasized the unfair prejudicial impact that rap lyrics can have because some jurors lack education on the art form.36 Nielson described rap lyrics as "complex and slippery . . . often intentionally hyperbolic as well, drawing on the long tradition of boasting and exaggeration."37
The other side to this argument is that rap is not a new genre of music in America. The rap industry has existed since the early 1980s.38 Meaning, as it has developed, the potential jury pools listening to rap as evidence understand how to take the music into consideration. The opposing side argues that the critics of this evidentiary tactic fail to realize that many jurors are aware of the complexity of rap music. This means that the jurors would not be so overwhelmed and shocked by the language and that they would not use the evidence improperly.
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Aside from the issues flowing from the First Amendment and the possible prejudice artists may face from the jury, the third concern is the most daunting: the issue of race. Rap is a genre predominantly filled with artists who are African-American.39 Therefore, in most cases where the prosecution uses rap lyrics, the defendant is black.40 The hesitancy in allowing these lyrics to be used can, therefore, be afforded to not wanting to use this art form to further another sector of the country consisting of predominantly young black men: prison.41
A Daily Beast article, Can Rap Lyrics Send You to Jail? If You're a Young Black Male, Yes,42 recently discussed the issue in full term. Based on the article, it is clear this issue not only has a huge impact on black people but, specifically, young black males, who make up most of the rap industry. In the article, Erik Nielson discusses how race interplays with the use of rap at trials. According to Nielson, "[f]or as long as there have been people of African descent on American soil, there has been hostility to their creative expressions."43 In this instance, the creative expression is rap music. From Nielson's viewpoint, the prosecutors who use rap lyrics recognize the issues that come along with this evidence. Nielson claims that prosecutors see the unfair prejudice and the First Amendment issue but put these problems aside because they want the jury to see young black men in a bad light.44
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Aside from Nielson's comments, the article also discusses some of Andrea Dennis' opinions. Similar to Nielson, Dennis also spent part of her career studying the use of rap lyrics in the prosecution of young black men. Dennis recently spoke at Mercer University School of Law's First Annual Black History Month Symposium, titled Black History Matters: The Purpose and Relevance of Celebrating Blackness in Today's Society, where she discussed the topic as she did in the article.45
Similar to the event, the article focused on Dennis' and Neilson's studies truly illustrating how the use of rap for prosecution is a growing issue that deserves exploration. This Comment will explore the issue by first laying out a brief history of rap music. Following this short history, there will be a discussion of how the issue began and the way the courts have used rap music. Next, this Comment will explore how different states have approached the issue. Finally, this Comment will summarize the issues and propose possible solutions.
A. From Hip-Hop to Handcuffs
1. Short History of Hip-Hop
In order to understand the issues created when rap music clashes with the criminal justice system, it is important to understand the...
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