As we celebrate the 50th Anniversary of Hip Hop, it is time to reexamine the ways in which lyrics are used in legal proceedings by examining the bias held for the art form. While the birth of hip hop has spurred international conversations about the realities of living in under-resourced communities, it has also been met with legal pushback since its infancy. Whether it was the president of the free world denouncing a song, a parental advisory label aimed at stymying distribution, or the creation of a task force to prevent artists from performing in a given town, hip hop has been one of the most criminalized art forms to date.
Unlike other art forms, hip hop is subject to a unique paradox within the legal community. Some may argue this is due to the fact that the legal field is profoundly lacking in diversity — with less than 5% of attorneys being Black. But regardless of the cause, the dearth of understanding of the genre has far-reaching consequences. When it comes to the criminalization of speech, regulation was traditionally rooted in safety. For instance, we all know that you cannot yell “fire” in a crowded room; however, when it comes to hip hop, the art form is far too often deemed violent at the outset, and relevant for evidentiary purposes, often with little in the way of investigation and a total disregard for the prejudicial underpinnings at play.
This conundrum stands front and center in a case of the Young Slime Life (YSL) racketeering trial, wherein Atlanta prosecutors are pursuing Racketeer Influenced and Corrupt Organizations (RICO) Act charges against rapper Young Thug (Jeffrey Williams). A great deal of that indictment included various lyrics and songs to prove the existence of a criminal element. It would appear that instead of having to prove the elements of the crime, the existence of the lyrics and bravado associated with the art form is treated as conclusory evidence.
These everyday normative conversations lead to racial disparities within the criminal justice system. Despite being a predominantly White-consumed genre, it is estimated that in the majority of cases where rap lyrics are used against a defendant, they are done so against a Black or Brown person.
What does this mean when it comes to the rule of law? Studies have shown an innate prejudicial element with respect to rap lyrics. In some cases, the mere introduction of such lyrics can instill bias into the key players in a case against a client.
While relevant evidence is permissible in any instance, there are cases where the prosecution uses lyrics against a defendant despite said lyrics having nothing to do with the alleged crime. For instance, in some cases songs have been created before the alleged criminal act occurred, or were created under circumstances that were not relevant to the suspected crime but have been used regardless to paint an individual as someone who is violent and harmful. This blatant disregard for how to use lyrics in criminal proceedings can be easily rectified by amending the rules of evidence to require a further inquiry into the relevance of their usage. This would not only help to ensure a defendant has a fair trial; it would also help mitigate prejudice against victims who also happen to perform in the genre. In many instances when there is an individual who has lost their life, the genre is treated as a reason for their death before there is an actual adequate inquiry into the reasons for their deaths. The ways in which the legal community has engaged hip hop have created a pervasive stereotype that stands as an obstacle to justice.
The Jamal Knox trial has been a premiere case study in the ways in which hip hop is castigated. Knox, in a frustrated state, created a song that referenced two officers who had recently contributed to an arrest. The song included a few words about using the knife against the officers. After the completion of the record, a third party uploaded it to a streaming site. The courts upheld charging Knox with making threats in part because the officers were directly named; the creation of the song was seen as adequate grounds to establish an intent to harm, even if the song was not intended to be a work of nonfiction. And in dismissing Knox’s song as a personal gripe and not a broader political statement against police overreach, they did not give weight to any cultural inquiry into the criticism of police behavior.
A factual issue rarely discussed but brought up in the Knox case is the reality that when songs are being recorded, there are multiple individuals in the studio space who are contributing to the creation of the record. Yet, there are no mass arrests or indictments against engineers, labels, producers, or ghostwriters. The reality is that while an artist may be the public face of a song, this does not necessarily mean they are the one who wrote the song, or that they are living the lifestyle portrayed by its lyrics. For instance, narcocorridos is a specific genre of Mexican rap by which a criminal life is romanticized in words and ballads, but there is a recognition that the artists themselves may not have lived that lifestyle.
Another issue raised by the Knox case is that of the allegations of pervasive abuse, assault, and surveillance at the hands of the police. The most controversial and infamous songs in the genre have focused on exposing police violence in a direct, crude manner. Yet to this day, there has not been one police officer arrested, charged, or convicted of misconduct based on a lyric in a hip hop song or a portrayal made by a rapper. The analysis used when evaluating these lyrics has centered on the exaggeration and hyperbole of the artists and in the art form. But if there is such a robust belief that these lyrics are autobiographical, why is there a lack of their usage in investigations of state-sponsored violence and abuse?
Regulating the content of speech requires subjective analysis, because the punishment for violating such regulations can be severe, including imprisonment and the loss of one’s freedom. Hip hop has often been misunderstood and mischaracterized, leading to prejudice and discrimination against the genre and the words Black people use. When analyzing hip hop lyrics in a criminal justice setting, it is important to take a subjective approach that accounts for the unique context and meaning of the words. This is especially important given the severity of the potential punishments. An investigatory inquiry similar to the Gibbs factors is needed to answer the following questions:
- Who is the actual creator of the song?
- When was the song recorded?
- What percentage of the song is at issue?
- Are there other known lyrics or cultural elements being referenced?
- Is the work original content?
- What is the purpose of the song?
As artificial intelligence is increasingly used to create music and art, the ways in which hip hop interacts with the criminal justice system will become more complex. It is important to be aware of these challenges and to develop fair and just approaches to analyzing hip hop lyrics in a legal context.
As we celebrate the 50th anniversary of hip hop, it is time to reconsider our biases against the genre and create better rules for when, where, and how hip hop lyrics can be used in criminal trials.
Miracle Jones is a graduate of the 2018 Class of Pitt Law and is Barred in New York. She is currently the Director of 1Hood Media Academy, a social justice arts organization based in Pittsburgh.
