Posted on August 8, 2022

Rappers Keep Getting Locked Up Over Their Lyrics. Could a New Law Change That?

Drew Schwartz, Vice, August 4, 2022

For decades, prosecutors have been using rappers’ lyrics against them in court, convincing judges and juries that their music should be considered evidence, not art. It’s an argument a number of high-profile musicians have had to fend off, including Lil BoosieDrakeo the Ruler, and, more recently, Young Thug and Gunna, who are currently facing up to 20 years in prison on charges based, in part, on the content of their songs. Last week, a pair of legislators introduced a bill that would tamp down on that practice, a major step in a campaign First Amendment attorneys and racial justice activists have been waging for years.

The RAP Act, introduced by two House Democrats, Georgia’s Hank Johnson and New York’s Jamaal Bowman, seeks to limit lyrics from being used as evidence in criminal and civil trials. It would amend the rules governing how evidence is used in federal court to prohibit that legal tactic, at least in large part. The bill contains a few exceptions: Prosecutors could still use lyrics against a defendant if they “intended a literal meaning,” and if a given lyric “refers to the specific facts of the crime alleged”; is “relevant to an issue of fact that is disputed”; and “has distinct probative value not provided by other admissible evidence,” which, in other words, means it’s necessary to prove a fact, and there’s no other way to prove that fact.

To get a better handle on what would happen if the RAP Act became law, VICE called up Erik Nielson, a University of Richmond professor who co-authored Rap on Trial, a book about what happens when rappers’ lyrics are used against them in court. He walked us through how pervasive this practice is in the criminal justice system, and how far the RAP Act could go toward changing that.

VICE: On a big picture level, what’s problematic about using an artist’s lyrics against them in court?

Erik Nielson: We’re not seeing lyrics from other genres being used against artists. It really is almost exclusively focused on rap music and rap musicians. And I think it’s problematic at a number of levels. For one, it denies rap music the status of art that we willingly give to other fictional genres. I think more important than that, though, is it allows prosecutors to attain convictions in cases where they may not have much in the way of other evidence. I’ve worked on so many cases [in which rap lyrics are used as evidence], and I have not yet seen a case where I believed what I was reading was somebody’s confession to a crime that had happened, or their plan to commit the crime that they were accused of.

Unless I’m just missing those obvious cases, I would say by and large, rap lyrics really don’t have a place in the courtroom. I mean, it’s a fictional form. That’s not to say fiction can’t contain threads of reality; fiction always works like that. But [rap] is fictional. It privileges figurative over literal language. It’s got a long tradition of hyperbole behind it. It’s told by somebody who’s generally not even using their real name, but is using the name of their invented persona. This is the basic distinction between author and narrator that we have no trouble applying to all other fictional forms. But all of a sudden with rap, it’s all autobiography? That doesn’t make any sense to me. And so I think that given that [rap] is inherently unreliable as literal fact, I find it unlikely that there would be many scenarios in which using it as evidence would be appropriate.

You mentioned that lyrics are really only being used against defendants who make rap music. Why is that?

Well, because that’s what the criminal justice system is built to do. It’s built to punish and incarcerate, en masse, Black and Brown young men. It’s also happening because it works. We’ve seen this time and time again where prosecutors bring a case against somebody, the evidence is flimsy at best, and they use these lyrics in order to get a conviction that they otherwise probably wouldn’t have gotten. If a defendant is convicted in a case where his lyrics are being used against him—and I say “his” because it’s almost all young men—and he appeals later on and says, “Hey, that was improper, that shouldn’t have been allowed to happen,” the vast majority of times, that appeal will fall on deaf ears. So it works to secure convictions, and then at the appellate level, it’s generally upheld. So what incentive do prosecutors have to not bring these lyrics [up at trial]? Prosecutors know that if they can get these lyrics in, they’re more likely to get a conviction. And they know that on the back end, they’re not going to face reversals.


How common is it to see prosecutors use a defendant’s lyrics against them in court?

We’ve identified roughly 600 cases, but we know that it’s far, far greater than that. Rap lyrics are a really powerful tool that give prosecutors leverage early on in the process and can compel a plea bargain, which is what the vast majority of cases end with. We’re not going to see that if it’s happening behind closed doors in an interrogation room.


I want to pivot to talking about the RAP Act itself. Could you spell out what this legislation is calling for, and what would happen if it became law?

The presumption, if this were to be enacted, would be that these lyrics can’t [be used against a defendant]. And if you want to overcome that presumption, you can. But you have to demonstrate several different things before [lyrics are] allowed in. So it really just turns the tables and places the burden on prosecutors to demonstrate why these lyrics are really appropriate and necessary as part of their case versus the current practice, which is almost as if it’s a given and defendants have to fight it. It doesn’t ban anything outright. It just limits the practice.

What would it mean? Well, the RAP Act is federal. So that would apply to federal cases, but not the 50 states. Now, that’s still a big score. But in order for something like this to have a meaningful, widespread effect, you would need to see similar legislation passed at the state level as well. That’s not realistic for all 50 states. But I do think that if there was something like this at the federal level, and you get something in New York and California—these populous states where there are these cases—it would do a lot, hopefully, to limit the practice. {snip}