The Restoring Artistic Protection ACT — or RAP Act — would place legal guidelines on when, and how, lyrics can be introduced to a jury as evidence. But is it enough?
In 2019, the Maryland Court of Appeals upheld the conviction of a Black man from Annapolis, Maryland, who appealed on the grounds that rap lyrics should never have been used against him as evidence. The conviction of 27-year-old Lawrence Montague was based on a single, shaky witness testimony and his own words, rapped through a jailhouse phone from where he was awaiting trial. His friend, recording through the other end of the line, interjected to dissuade Montague from having him post the short verse to social media. “I’m gucci. It’s a rap. Fuck they can do about a rap?” he responded.
Prejudice against hip-hop in criminal law is nothing new, but the use of rap lyrics in court has skyrocketed. Some cases, like the RICO charges brought against Young Thug and Gunna, are high profile enough to get substantial media coverage. But many more go unnoticed. It’s a quiet form of cultural discrimination that contributes to the United States’ damning racial disparity in mass incarceration. As of 2020, prosecutors had admitted lyrics as evidence in court cases over 500 times, using young Black men’s lyrics against them who had written or recorded sparsely.
However, a new federal bill introduced to the U.S. House of Representatives last month intends to limit the use of artistic expression against defendants in criminal cases. Proposed by Rep. Hank Johnson of Georgia and Rep. Jamaal Bowman of New York, the Restoring Artistic Protection ACT — or RAP Act — would place legal guidelines on when, and how, lyrics can be introduced to a jury as evidence. That determination would be taken out of the hands of potentially prejudiced jury members, and decided in a hearing separate from the trial based on specific checks outlined in the bill.
“Rap is free speech. Rap is art. Rap is journalism and everything in between. We don’t criminalize free speech. We don’t criminalize art. We don’t criminalize journalism, and so we shouldn’t be criminalizing rap lyrics,” Rep. Bowman said over a video interview with Okayplayer. “In comparison to other genres, you see a tremendous disproportionality in terms of rap lyrics being introduced in criminal court, and it’s not lost on me or many others how that disproportionality impacts Black men in particular.”
When Montague’s recording was eventually played in front of a jury, the prosecutor stood and matched photos from the case to words in the verse. “It’s a .40 when that bitch goin’ hit up shit” was matched with a photo of a .40 caliber casing admitted as evidence. While “Like a pickup truck / But you ain’t getting picked up” was paired with security footage of the victim’s Ford Explorer (incorrectly referred to as a truck throughout the trial). It was close enough for the jury to convict Montague of murder and for the Maryland Court of Appeals to uphold the admission of the lyrics as evidence, by claiming they contained specific details of the crime and elements of witness intimidation.
“I think really the error was [the judge] didn’t even listen to it,” Montague’s public defense attorney, Tyler Mann, said over a video interview. “It was just proffered from the state that this is autobiographical.”
As Rep. Johnson noted, most of these artists are rapping about what happens in their environment, and sometimes it’s truthful while other times it’s not. Still, this doesn’t stop a jury or judge from perceiving a defendant’s artistic expression as a self-incriminating character witness or direct confession.
“Bias and prejudice still exist against Black people, urban youth and rap music,” he said. “When a jury or a judge listens or is made aware of the fact that the defendant is a rapper, that’s strike number one. When you introduce lyrics that contain violence, that’s strike number two. Strike number three can simply be that you’re accused of something and you’re sitting in the room.”
Adam Dunbar is an assistant professor at The University of Nevada, Reno, whose research has explored the way that cultural discrimination acts as a legal proxy for racial discrimination in the criminal justice system. His findings in a series of experiments exploring the use of rap lyrics in court closely mirror those three strikes.
“Participants were more likely to think that the songwriter had worse character and greater criminal propensity if the lyrics were described as rap rather than heavy metal,” Dunbar said. A cultural prejudice that assumes rappers to be violent, strike one. “Participants were more likely to evaluate the lyrics as threatening and literal if they were described as rap music compared to country.” Assuming that the content of rap is autobiographical, strike two.
But even more damning, is the compounding effect of strikes one and two when the experiments were performed in the context of a criminal trial, strike three.
“[When presented rap lyrics], the people who thought the defendant was guilty rated all the evidence as more incriminating, including the rap lyrics,” Dunbar said. “So for those who think the defendant is guilty, they’re gonna use the rap lyrics to kind of affirm what they already think about the defendant.”
The implicit bias against rap music is rooted in a longstanding portrayal of Black men as violent and criminal. Historically, media in the United States has been more likely to connect violence and criminality to race, than to conditions of systemic poverty from which violence and crime are cultivated.
“That is an aspect of structural racism,” Rep. Bowman said. “It could be even more egregious lyrics in heavy metal and other genres of music, but white men and white people aren’t seen in the subconscious of the American people as being criminal, whereas black men historically have been.”
That the use of rap lyrics in criminal cases is so unquestionably effective in reaching a conviction, explains the frequency with which they are used and justifies the need for legislation to place boundaries on the practice. If signed into law, the RAP Act’s most essential function may be to remove the determination of lyrics’ relevance from the hands of prosecutors and jury members and into a separate hearing.
“There would be a presumption that one’s creative and artistic expression is inadmissible as evidence in a criminal case in federal court,” Rep. Johnson said. “In order to overcome that presumption, the prosecution would have to introduce evidence to the court to convince the court by clear and convincing evidence that the creative expression refers to the specific facts alleged in the case and that the artists meant for that expression to be taken literally or as true. That way, you put some guardrails up to prevent the wrongful and highly prejudicial use of extraneous matter into a criminal trial.”
One particular guardrail in the bill states that the expression also must have “distinct probative value not provided by other admissible evidence.” This means that lyrics shouldn’t be used to pile onto facts of a case that are already established. This aims to prevent their prejudiced use by characterizing a defendant as having a higher propensity for violence, and leaving a jury inclined to find the other evidence additionally incriminating.
The RAP Act would undoubtedly be a strong first step toward extending first amendment protections toward hip-hop. But to be truly successful it needs to be paired with the work of cultural and judicial reform.
“Our law is a federal law, but we want each state to follow suit,” Rep. Bowman said. “I know New York is doing some work, California is doing some work, but this needs to be state by state because again, ultimately, it’s an attack on free speech.”
The New York bill, on which the RAP Act is based, passed the state senate with a 38-23 vote but didn’t make it through the state Assembly during the last session. (It will be reintroduced next year.) California’s AB 2799 bill has passed and is waiting to be signed by Governor Gavin Newsom.
However, even if the bills pass, they still face prejudice in their application that’s not so easily legislated out. Montague’s attorney wasn’t entirely convinced the law would have prevented the prosecution from using his client’s jail phone verse against him.
“Let’s say they have a case like Montague’s in the federal system. They would get his lyrics into evidence probably seven or eight times out of 10 with most of the judges, because most of the judges are white people,” Mann said. “They would say he’s rapping it, so it’s literal.”
“Those kinds of determinations are dependent on the person making them,” Rep. Johnson acknowledged. “The judiciary is not free from racism and bias and prejudice against Black people. In fact, there are so many instances of it occurring repeatedly, it’s something that we have to protect and guard against.”
In anticipation that the RAP Act would not stop 100% of artistic expression from being introduced as evidence, the bill also adds some stipulations for how they are introduced. Along with being redacted to contain only the relevant facts, the bill states that the jury should be given appropriate limiting instructions on how to receive the information.
Providing limiting instructions could mean trying to explain to a jury how their own perception of the lyrics might be influenced by subconscious prejudice or decades of conditioning to believe Black men — and by association, rappers — have a predisposition for violence. But based on his research, Dunbar had a more expansive idea of how to combat that implicit bias.
“I think telling the jurors to not do something isn’t as beneficial as telling or providing jurors with another way of thinking about the lyrics,” he said. “I think what’s more helpful is just having jurors have a more comprehensive view, right? If you have the prosecutor saying, ‘Look, these are lyrics where the person is talking about the crime they committed.’ And then you have somebody else saying, ‘Look, maybe that’s one interpretation. But these are also lyrics that kind of fit into the historical context of what rap music is, right?’…Another interpretation is that this is somebody who’s just talking about what they see in their community, trying to shed light on what happened in their community.”
Dunbar’s suggestion is indicative of the need for more than just legislation that slows down the use of rap lyrics to incarcerate Black men. The prejudice against hip-hop in the judicial system is just one symptom of a larger problem of cultural discrimination as a proxy for racial discrimination.
“How do you invoke race without explicitly invoking race?” Dunbar said. “Rap music and attitudes about rap music do that. That’s where we see these practices that are ostensibly race-neutral, right? Anybody can be affected by this practice. But it still disproportionately impacts young Black rappers.”