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  • Nyia McCree

From jazz to hip-hop to rap: The policing of lyrical expression for criminal trials.

Hey, this that slime sh**/hey, YSL sh**/hey, killin’ 12 sh**/hey, f**k jail sh**/hey.” Jeffery Williams, aka Young Thug, rapped these lyrics in his 2016 hit song “Slime Sh**” featuring Deamonte Kendrick, aka Yak Gotti, which were the first lyrics entered as evidence against them in their RICO case. Young Thug, Yak Gotti, and 26 other defendants, including hit artist Sergio Kitchens, aka Gunna, were indicted in May 2022 on RICO and other criminal charges for Young Thug’s label and purported street gang affiliations with “Young Slime Life” (“YSL”). Prosecutors used many of the lyrics in his and other affiliated members’ songs as evidence of “overt acts” toward the RICO charges. Presiding over this case in Fulton County, Georgia, Superior Court Chief Judge Ural Glanville allowed prosecutors to enter 17 sets of rap lyrics into evidence against Young Thug. Many defenders see this type of admittance of rap lyrics in criminal proceedings as a racist double standard, and others see it as a violation of the First Amendment right to express oneself through lyrics. The YSL case is not the first time that the federal government has used artists’ lyrics to criminalize them––this policing tactic has primarily targeted the Black community beginning in the Jazz era to limit their artistic expression under oppressive circumstances. 

Between the 1930s and 1940s, African Americans used “jazz” to express their feelings about the toll that racism and discrimination took on them. Since jazz music was inspired by songs from the enslavement era and southern blues, African American people used its different styles to create bold statements as a rebellion against the traditional white American culture. However, the federal government heavily policed this musical expression through racially discriminatory laws and blatant physical abuse. From 1940 to 1967, New York City introduced the “Cabaret Card” law, requiring musicians to carry them to work at nightclubs. If an artist did not have a cabaret card, the police would arrest them, force them to get processed, and determine their eligibility for card issuance. Nate Chinen, an award-winning jazz music writer, explained in a 2012 feature for JazzTimes, “[t]he administration of the card […] imposed the conditions of a police state in which music-making was cast as a privilege rather than a right.”

The 1970s to the 1990s saw a plague of social conditions that directly affected Black people in the inner cities, such as the eradication of music in schools, the War on Drugs, mass incarceration, gang violence, urban decay and extreme unemployment. Instead of instruments, artists used their lyrics and samples from jazz music to create records. In the late 1970s, hip-hop let people express themselves through rap, dance, poetry, visual art or urban philosophy, bringing attention to what was happening in middle- and low-class neighborhoods. Sampling prolific jazz pieces and many lyrical elements from prominent jazz and bebop artist James Brown, Black artists found a new way to discuss their cultural experience. Pianist Robert Glasper stated in an NPR Jazz Night interview, “[b]oth jazz and hip hop were born out of oppression, and both are forms of protest music […] for a shared history of struggle and celebration and a desire to change the sound of music with each release.”

Ever the fast-moving target, “gangsta” rap from prominent East and West Coast rappers later became the target of lyrical oppression due to its urban storytelling. Inner-city Black people were constantly targeted, surveilled and criminalized, and rappers loudly lyricized their social inequities, which dominant authorities viewed as dangerous and a “reawakening of the sleeping giant of minority resistance.” N.W.A.’s hit song “F**k tha Police,” discusses the extreme police brutality towards Black communities, and law enforcement responded by attempting to prohibit the performance of the song and arrested the group when they did not obey. While police argued the song incited violence against officers, N.W.A. responded that it was not a literal call to violence, but merely an expression of frustration towards abusive police surveillance. 

Instead of using the musical identity of Black artists to criminalize them, government officials utilized their lyrical expression as evidence of incitement of violence. In Brandenburg v. Ohio, the Supreme Court held that the First Amendment does not protect political speech if “directed to inciting imminent lawless action.” Prosecutors argue that admitting rap lyrics as evidence doesn't endorse them as expression but as proof of the crime, citing FRE 403. Defense lawyers counter that rap's political roots should protect it as artistic expression under the First Amendment, emphasizing the distinction between a literal confession and the artistic expression in rap lyrics, stating that rapping about crime isn't the same as committing it.

So, how should criminal law practitioners address the issue of the criminalization of rap music? Kermit Roosevelt, a constitutional law professor, and Dr. Stuart P. Fischoff agree that the admission of these lyrics could lead to juror bias, defendant profiling, and the dissolution of the truth of the case. Similar to their theories, in 2016, Tommy Mundswell Canady was sentenced to life in prison for murder when prosecutors used lyrics from a Soundcloud song he released–– although the other evidence against Canady was circumstantial, the victim’s father believed the lyrics were a confession. 

These different perspectives hone in on the penultimate question of addressing this problem. Criminal law practitioners can implement studies regarding the implicit biases people think of when listening to rap music and see if this relates to their perception of the criminalization of rap artists. They can also address this issue by looking at it from an evidentiary standpoint instead of the lyrics’ overall use. If practitioners can focus on the lyrics from this standpoint, it will become more useful in trials and lower the ability for people to think that the lyrics mean something more than just artistic expression.

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