Free speech, finally: How new state laws could save rappers (and others) from their own lyrics

  • A New York bill could become the first in the nation to limit prosecutors from using lyrics as criminal evidence against artists.
  • Proponents see the bill as a necessary free speech protection for Black and brown artists who have historically had their rap lyrics wielded against them.
  • Lawmakers in states like California have looked at similar protections for artists. Others are exploring the creation federal legislation.

Months after New Orleans-based hip hop artist Mac Phipps was granted clemency for a crime he maintains he didn't commit, he was back making music. Phipps released "21 Summers" last Augusta single about the two decades he spent locked up on a manslaughter conviction. 

His return to rapping was especially notable since it was the lyrics to his own rap songs that prosecutors used to help put him away.

Phipps, who had no prior criminal record, may not have ended up in prison if his lyrics were protected as artistic expression. Prosecutors had no murder weapon or physical evidence linking Phipps to the crime. Now a proposed New York law put forward by state Sens. Brad Hoylman and Jamaal Bailey would do just that.

State lawmakers in New York are hoping to pass legislation limiting prosecution from using lyrics as criminal evidence against artists – the first of its kind nationally. Proponents see it as a necessary free speech protection for brown and Black artists who have historically had their rap lyrics wielded against them in criminal cases. 

The bill has garnered support from dozens of artists, including Jay-Z, Kelly Rowland, Robin Thicke, Big Sean and Meek Mill.

"It took 21 years from me, it crippled my family financially, my son was raised without his father," Phipps, 44, said in an interview with USA TODAY.

Harvey Mason, Jr., CEO of the Recording Academy, which presents the Grammys has been a strong voice in favor of the New York bill. Mason said such efforts have stifled artists' creative expression and caused the music industry to suffer.

Similar protections aiming to require increased scrutiny for evidence resulting from creative expression is also being considered by California state lawmakers. Mason said the Recording Academy is working with Rep. Hank Johnson, D-Georgia, to explore similar legislation at the national level. 

"We feel this is an unfair practice and it's singling out and targeting a specific genre," Mason said. "It's inequitable, it's unjust and it's unfair."

If the New York bill becomes law it would apply to any form of  a defendant's "creative or artistic expression," not just rap.

But it's not an outright ban either.

Instead, it would create a presumption of inadmissibility, requiring prosecutors to demonstrate with clear and convincing evidence that song lyrics are meant to be taken literally, relevant to a disputed issue, specifically related to facts of the alleged crime, and that it would create unique probative evidence other evidence wouldn't also accomplish in the case.

David LaBahn, who heads the Association of Prosecuting Attorneys that represents the nations elected and deputy or assistant prosecutors and city attorneys, noted that much of existing criminal procedure already covers such evidence that could be prejudicial. But he acknowledged that such determinations are also rather subjective.

"When judges aren't doing their jobs, defendants aren't doing their jobs, prosecutors are doing inappropriate things, that creates a void for the legislature to step in," LaBahn said.

LaBahn said the bill's language needs tweaking, and should also be applied to witnesses and victims to ensure their testimony wouldn't be similarly undermined.

The legislation has spurred conversation over hip hop's historic conflation with criminality in the U.S.

Erik Nielson, a University of Richmond professor and expert witness on the subject who co-authored the book "Rap on Trial: Race, Lyrics, and Guilt in America," has found that in at least 500 cases from roughly 1990 through 2017 a defendant's rap lyrics or videos had been introduced as evidence of guilt in an underlying crime, especially when cases are weak. He noted that because state court records aren't centralized and are difficult to search, these cases are a drop in the bucket among likely tens of thousands of such cases. The practice has almost exclusively targeted young Black and Hispanic men, he said.

"This legislation isn't about a person's guilt or innocence. It's to ensure defendants are getting a fair trial," Nielson said.

Just a few weeks ago in the high-profile case that included artists Young Thug and Gunna in Atlanta, prosecutors cited rap lyrics in their charging documents accusing the rappers of allegedly belonging to a violent street gang that has committed multiple murders, shootings and carjackings.

Hoylman said racial bias lies at the center.

"You don't see prosecutors routinely introducing science fiction novels or country music lyrics against defendants," Hoylman said. "The trend is against hip hop."

An artistic genre of its own

Hip hop is a cultural and artistic movement that began in the 1970s in the south Bronx of New York and embodies multiple elements like breakdancing, graffiti writing, DJing and rap music.

Much like country, punk or death metal music has its signifiers, so too does rap music. But police and prosecutors have historically tended to treat rap music as rhymed autobiography or confessions in rhymed form, rather than an art form, Nielson said. That's not what has happened, for example, when Johnny Cash sang about killing a man "just to watch him die."

In a 1999 study, participants in two groups read a violent set of lyrics. The group that was told the lyrics came from a rap song found them more threatening and in need of regulation than the other group, which was told the lyrics came from a country song.

The experiment, repeated in 2016, found the same biases. Other studies have found that people believe rap music is more likely to cause listeners to hurt others and rock music as more likely to cause listeners to hurt themselves.

"There's a sense among prosecutors and judges, and I'd argue some of the public that hip hop is connected to criminality and isn't a valid of expression, and there could be nothing further from the truth," Hoylman said.

Rap artists are sharing experiences, some of which may be real or created based on things they have seen or things they have heard, or what others around them have experienced, explained Mason, who heads the Recording Academy.

In the U.S., violence and drama sells, hip hop artist Phipps said, so that's the type of music that gets the most attention and drives the music and videos that hip hop artists produce.

"We have a 'real factor' in hip hop, and I think most people should know at least 90 plus percent of what these guys are rapping about is fiction or overly exaggerated," Phipps said. "I think we have to be very careful when we take hip hop songs at face value, like this is this person's life and this is what they're living...Not everybody's neighborhood is the hardest neighborhood in the world."

Scaring 'the hell out of old white jurors'

Alex Spiro, a partner in the New York office of Quinn Emanuel Urquhart & Sullivan, LLP remembers sitting in a Bronx courtroom listening to bail application hearings and heard a prosecutor point out to a judge that the man was wearing red clothing in a video and rapping about a knife.

His jaw hit the floor.

Prosecutors "include this in their application asking that person be detained without proof of guilt," Spiro. "That's a reality."

Lyrics are used leading up to trials and in trials to create leverage against defendants, bolster evidence and unfairly influence juries, Spiro said.

Spiro said such legislation doesn't prevent somebody's confession being used in court if it's masked within lyrics, but ensures that generational differences or implicit bias doesn't allow a judge who is unfamiliar with hip hop to take lyrics out of context and use it against a defendant.

For trials, Black jurors are routinely limited and excluded from criminal juries, so jury pools tend to be older and whiter, said John Hamasaki, a criminal defense attorney. "You're using both the lyrics as well as imagery that I think is intended to scare the hell out of old white jurors."

Hamasaki represented Drakeo the ruler of his murder trial, which also featured his song lyrics. The prosecutor in that case did not respond to a request for comment.

"If you go to a war-torn country there's people taking photographs of images that are troubling," he said. "Those photographers are not necessarily complicit of what's going on, they may be commenting through their photography on the reality that they know. So, too, the rapper."

Spiro added: "If you really need that rap lyric to convict that person then find a different case."

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