Congrui Lin
When Jamal Knox was 19, he was sentenced to 2 to 6 years in prison for witness intimidation and making terroristic threats.[1] The only source of these threats? His rap lyrics, which included lines such as “let’s kill these cops ‘cause they don’t do us no good,” were not meant to be read literally and were written as part of his stage persona.[2] This case serves as an example of the myriad ways in which legal treatment of rap music has infringed on First Amendment rights of artists.
The rap genre has historically been framed as one promoting violence and glorifying drug use, among other things.[3] Not only have there been campaigns to censor rap music (such as refusing to play rap music on certain radio stations or on TV), rap music has also experienced a rocky relationship with both police enforcement and the criminal justice system.[4] Police have effected arrests based on the existence of rap lyrics written on a piece of paper, without any other corroborating evidence.[5] Most recently, the rap lyrics of rapper Tekashi 6ix9ine were used as “documents of truth as opposed to works of creative expression.”[6]
Scholars have long criticized the use of rap lyrics in criminal trials as an unconstitutional practice.[7] Rap lyrics are generally protected by the First Amendment; the Supreme Court has found that “one man’s vulgarity is another’s lyric.”[8] A speaker is only found liable if the court finds that he intended to communicate an actual threat.[9] However, determining intent from rap lyrics is difficult as rap lyrics follow lyric formulas and often take on ambiguous meanings by design.[10] These lyric formulas — often used in rap music to display masculinity and power — employ stock topics and tropes widely understood by both musicians and their audiences.[11] Other genres such as opera and country music also employ lyric formulas to touch on violent and sexual themes, but these genres are very seldom interpreted literally, and are almost never used as prosecuting evidence in criminal trials.[12] In addition, performers often adopt a persona that is entirely distinct from their true identities, as was the case with Knox.
However, even in light of these First Amendment protections, courts have used rap lyrics as evidence in several ways. Prosecutors have used lyrics to imply a criminal or violent disposition, and even to criminalize the lyrics themselves as true threats.[13] Rap evidence has also been used as circumstantial evidence, to prove gang affiliation and motive.[14] Courts often mistakenly believe that no specialized knowledge of lyrical interpretation is required to understand rap music, and tend to interpret lyrics literally.[15] In an effort to urge the Supreme Court to take up Knox’s case, a group of high-profile hip-hop artists filed an amicus brief giving the court a primer on rap music.[16] They note that rap music is a work of poetry, and is not intended to be taken literally; further, they write that “lyrics are meant to be heard in conjunction with the music, rhythm and emotion.”[17]
The practice of interpreting rap lyrics as bare text has had a discriminatory impact on Black men, raising questions of racial injustice, and warranting close examination.[18] The continuing use of this practice in the criminal justice system will undoubtedly have a chilling effect on free speech.[19]
[1]Commonwealth v. Knox, 647 Pa. 593 (Pa. 2017).
[2]Adam Liptak, Hip-Hop Artists Give the Supreme Court a Primer on Rap Music, N.Y. Times, Mar. 6, 2019, https://www.nytimes.com/2019/03/06/us/politics/supreme-court-rap-music.html.
[3]Erin Lutes; James Purdon; Henry F. Fradella, When Music Takes the Stand: A Content Analysis of How Courts Use and Misuse Rap Lyrics in Criminal Cases, 46 Am. J. Crim. L. 77 (2019).
[4]Nicholas Stoia; Kyle Adams; Kevin Drakulich, Rap Lyrics as Evidence: What Can Music Theory Tell Us?, Race and Justice (2017).
[5]Justin Peters, Prosecutors Should Be Ashamed of Their Egregious “Terrorism” Prosecution of Olutosin Oduwole, Slate, May 31, 2013, https://slate.com/news-and-politics/2013/05/olutosin-oduwole-unjustly-convicted-college-students-long-legal-nightmare-is-over.html.
[6]Marc Hogan, Why Tekashi 6ix9ine’s Testimony Matters for the Future of Hip-Hop on Trial, Pitchfork, Sept. 23, 2019, https://pitchfork.com/thepitch/why-tekashi-6ix9ines-testimony-matters-for-the-future-of-hip-hop-on-trial/.
[7]Erin Lutes; James Purdon; Henry F. Fradella, When Music Takes the Stand: A Content Analysis of How Courts Use and Misuse Rap Lyrics in Criminal Cases, 46 Am. J. Crim. L. 77 (2019).
[8]Supra at note 7
[9]Supra at note 7
[10]Supra at note 7
[11]Nicholas Stoia; Kyle Adams; Kevin Drakulich, Rap Lyrics as Evidence: What Can Music Theory Tell Us?, Race and Justice (2017).
[12]Supra at note 11
[13]Supra at note 11
[14]Erin Lutes; James Purdon; Henry F. Fradella, When Music Takes the Stand: A Content Analysis of How Courts Use and Misuse Rap Lyrics in Criminal Cases, 46 Am. J. Crim. L. 77 (2019).
[15]Nicholas Stoia; Kyle Adams; Kevin Drakulich, Rap Lyrics as Evidence: What Can Music Theory Tell Us?, Race and Justice (2017).
[16]Adam Liptak, Hip-Hop Artists Give the Supreme Court a Primer on Rap Music, N.Y. Times, Mar. 6, 2019, https://www.nytimes.com/2019/03/06/us/politics/supreme-court-rap-music.html.
[17]Supra at note 16
[18]Supra at note 16
[19]Erin Lutes; James Purdon; Henry F. Fradella, When Music Takes the Stand: A Content Analysis of How Courts Use and Misuse Rap Lyrics in Criminal Cases, 46 Am. J. Crim. L. 77 (2019).