A new bill introduced to the U.S. House of Congress is intended to limit lyrics being used against artists in court by setting the legal criteria for their admission as evidence. The Restoring Artistic Protection Act, or RAP Act, was proposed by Congressman Hank Johnson of Georgia’s fourth district, and Congressman Jamaal Bowman of New York’s sixteenth district. The bill’s supporters acknowledged that the line between artistic expression and evidence has often been drawn by race and genre in the past.
While the specifics of the RAP Act state that “evidence of a defendant’s creative or artistic expression, whether original or derivative, is not admissible against such defendant in a criminal case,” most of the words of the bill are spent on the legal guidelines for when lyrics can be legally admitted as evidence.
“Freddy Mercury did not confess to having ‘just killed a man’ by putting ‘a gun against his head’ and ‘pulling the trigger.’ Bob Marley did not confess to having shot a sheriff. And Johnny Cash did not confess to shooting ‘a man in Reno, just to watch him die,’” reads a release announcing the legislation, as quoted by Variety. And yet, as of 2020, prosecutors have entered lyrics as evidence in over 500 criminal cases.
Of the most recent and highly notable examples, lyrics from Young Thug’s “Slatty” and other songs were cited in charges against the rapper in a May arrest. Charged with violating the RICO Act, an act used to bring sweeping charges against individuals of an organized crime group for contributing to the crimes of other members of the group, prosecutors said that the lyrics were “preserving, protecting and enhancing the reputation, power, and territory of the enterprise.” Prosecutors didn’t need to link the lyrics “I killed his man in front of his momma, like fuck lil’ bruh, sister and his cousin” to a specific crime. They only define it as a threat that contributed to organized criminal activity.
Whether or not lyrics are taken literally often depends on the perceived genre of the writing. In a 2017 dissertation, “Rap Lyrics as Evidence: An Examination of Rap Music, Perceptions of Threat, and Juror Decision Making,” author Adam Dunbar determined that not only “the songwriter of the lyrics was viewed more negatively across a number of dimensions when the lyrics were categorized as rap rather than country, punk, or heavy metal,” but that when presented in a courtroom setting, jurors were more likely to attribute lyrics to an admission of guilt when combined with other evidence.
Rather than exclude lyrics from being used in jury trials entirely, the RAP Act’s main function is to take the determination of their relevance out of the hands of jurors and prosecutors by requiring the prosecution to prove their relevance in hearing separate from the jury. In addition to passing these checks, the admissible lyrics must be redacted to include only the relevant facts as approved by the hearing. The bill outlines the requirements for that legal validation as having to prove “by clear and convincing evidence”:
Fairly straightforward, lyrics would need to be proved as intended to retell factual events or details of a crime. The focus of this criteria is on the intention of the expression.
2. “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.”
If you indeed shot the sheriff, don’t riff off Bob Marley.
3. “That the creative expression refers to the specific facts of the crime alleged.”
While the first two either/or stipulations focus on the intention behind an artist’s expression to be literal, this one only requires that prosecutors prove the expression to contain details specific to the crime for which the artist is being tried. On this, Young Thug’s case may be a bit of a grey area because the RICO charges don’t allege that the lyrics detail a specific murder, but contribute to the crime of participating in organized crime.
4. “That the expression is relevant to an issue of fact that is disputed.”
This positions admissible lyrics as more of a counter-argument from the prosecution rather than an independent piece of evidence. Only when the lyrics contribute to a disagreement on the facts of the case between prosecution and defense should they be brought before the jury.
5. “That the expression has distinct probative value not provided by other admissible evidence.”
As it currently stands without the bill, prosecutors may bring lyrics in a way that piles onto the allegations almost like a character witness. As Dunbar’s experiments outlined in his dissertation, this is particularly damaging for a rap artist as jurors are more inclined to take the expression as literal because it’s rap, and as a confession when combined with other evidence. This would mean that the lyrics should only be brought to the jury if — and when — they can be considered proof of something not proven by other evidence.
While some states — like Rep. Bowman’s constituency of New York — have already begun the process of passing their own state-level versions of the law, the RAP Act could extend such protections to states unlikely to follow, like Rep. Johnson’s constituency of Georgia. If signed into law, the RAP Act will be the first federal law limiting the usage of lyrics in court cases — a practice that has been overwhelmingly used against Black and Hispanic hip-hop artists.
Correction: We initially wrote “since 2020, prosecutors have entered lyrics as evidence in over 500 criminal cases.” It’s actually “as of 2020…” We regret the error and have updated the story.
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