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US Congress members propose new law to stop rap lyrics being used in criminal cases

By Chris Cooke | Published on Thursday 28 July 2022

Two members of Congress in the US have proposed new laws that would restrict the use of an artist’s lyrics as evidence in any criminal cases they may become involved in.

The proposals are in response to increased concern in the music community – and especially in the hip hop community – about the use of lyrics by prosecutors, with campaigners arguing that using lyrics as evidence rarely adds anything of substance to any criminal proceedings, but can be impactful on juries to the detriment of the defendant, whose freedom of expression is also infringed.

In a statement, the proposers of the Restoring Artistic Protection Act – or RAP Act – Hank Johnson and Jamaal Bowman say that since 2020, prosecutors in over 500 criminal cases across the US have used artists’ lyrics as evidence against them in court. The proposed legislation would “add a presumption to the Federal Rules Of Evidence that would limit the admissibility of evidence of an artist’s creative or artistic expression against that artist in court”.

Johnson added: “Freedom of speech is the constitutional foundation the framers thought necessary to enable a new and free society to craft not only its own destiny through commerce and innovations, but through culture, expression and art”.

“It is no longer enough that the bill of rights guarantees that freedom”, he went on, “without further Congressional action, the freedom of speech and of artistic expression present in music will continue to be stifled, and that expression will be chilled, until the voices behind that protected speech are silenced”.

The use of lyrics and other forms of creative expression as evidence in criminal cases tends to disproportionately affect rappers – and especially black artists – something honed in on by Bowman.

He told reporters: “Evidence shows when juries believe lyrics to be rap lyrics, there’s a tendency to presume it’s a confession, whereas lyrics for other genres of music are understood to be art, not factual reporting. This act would ensure that our evidentiary standards protect the First Amendment right to freedom of expression. We cannot imprison our talented artists for expressing their experiences nor will we let their creativity be suppressed”.

In their announcement of the RAP Act, the two Congress members also cite comments made by a US judge last year when he refused to allow a defendant’s lyrics to be used as evidence in court. “Freddy Mercury did not confess to having ‘just killed a man’ by putting ‘a gun against his head’ and ‘pulling the trigger'”, the judge wrote. “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'”.

Of course, no one would ever think of those lyrics as being actual confessions, yet prosecutors have often assumed – and, it seems, jurors are more prone to believe – that a rapper’s words are somehow automatically more rooted in reality and real world events.

Johnson and Bowman’s proposals to change the rules at a US-wide level regarding the use of lyrics in court cases follows moves to introduce similar rules in New York, which passed in the state’s Senate in May. Various campaigners in the music community have called for similar measures across the US, including 300 Entertainment CEO Kevin Liles and Atlantic Records US COO Julie Greenwald, who recently set up a petition on this issue.

They were prompted to do so by the arrest in Georgia of rappers Young Thug and Gunna, with whom the two Warner Music divisions work. The criminal allegations against the two rappers, Liles and Greenwald noted in an open letter, “heavily rely on the artists’ lyrics that prosecutors claim are ‘overt evidence of conspiracy’. [But] weaponising creative expression against artists is obviously wrong”.

Both Liles and Greenwald have welcomed the RAP Act.

Liles said yesterday: “Today, too many artists, almost always hip hop artists, face allegations of wrongdoing which rely heavily on their lyrics as evidence. Beyond the disregard for free speech protected by the First Amendment, this racially targeted practice punishes already marginalised communities and their stories of family, struggle, survival, and triumph. Black creativity and artistry are being criminalised, and this bill will help end that. We must protect black art”.

And Greenwald added: “I applaud Reps Johnson and Bowman for introducing this bill to limit the admissibility of an artist’s creative or artistic expression as evidence against them in criminal cases. More than any other art form, prosecutors are attempting to use rap lyrics as confessions of criminal wrongdoing. With troubling racial disparities already present in the criminal justice system, this practice only adds to the uneven scales of justice that black men and women face”.

The proposals are also supported by a number of music industry organisations, including the Recording Academy. In a joint statement, the Academy’s CEO Harvey Mason Jr and the chair of the organisation’s Black Music Collective, Rico Love, said: “Today’s introduction of the RAP Act in the House Of Representatives is a crucial step forward in the ongoing battle to stop the weaponisation of creative expression as a prosecution tactic”.

“The bias against rap music has been present in our judicial system for far too long”, they added, “and it’s time we put an end to this unconstitutional practice. We extend our gratitude to Representatives Hank Johnson and Jamaal Bowman for their leadership on this issue, and we will continue to work closely with them to advance the protections in this bill that ensure all artists can create freely without fear of their work being criminalised”.