You need to know more about rap music. It is at the center of a critical struggle between creativity and criminal law.
Prosecutors have been attempting to use rap performances by defendants as evidence that the artists were signaling their intent to commit crimes. The practice has been deployed in the prosecution of Black men, who dominate the music genre.
In a 2021 press release announcing the indictments for murder of the Bridgeport gang East End, the U.S. attorney’s office claimed, “East End members celebrated their criminal conduct on social media websites such as Facebook and YouTube….”
A federal indictment against alleged members of rival Bridgeport gang Only North End (O.N.E.) claims the defendants “promoted and celebrated criminal conduct of the [gang], namely acts of violence against rival gang members, in rap music uploaded to websites such as SoundCloud and YouTube.” The government is attempting to make the performance part of the crime.
Joshua Gilbert is a defendant in the O.N.E. prosecution. He is charged with car theft, drug dealing and homicide. Gilbert is a rising rap performer known as Lor Heavy. His music videos have been viewed more than 1 million times of YouTube. They are full-fledged productions with guns as props, references to rivalries and “going stick to stick.”
Prosecutors have been using rap videos, songs and lyrics as evidence of a defendant’s propensity to commit the crimes they are charged with. Gilbert’s lawyer points out that the standard elements of rap music “the boasting, the penchant for violence, the displays of guns and drugs, the discussion of crime, the belittling of cooperators, the territorialism — are all standard ‘gansta rap’ tropes.” They prove nothing about what Gilbert did but are likely to inflame a jury that knows little about rap. The deliberation room is no place for jurors to cobble together a seminar on rap.
My knowledge of rap is limited to watching two seasons of Sean Combs’s “The Four: Battle for Stardom.” Gilbert’s videos reveal a performer. One online reviewer wrote in 2020, “Lor Heavy drops off his video for ‘Dead Cappers Freestyle’ and he’s in the studio with heavy artillery. He talks about how the streets don’t respect liars and how lying can get you hurt. Lor Heavy is putting his real life in his raps, and it’s appealing to his audience”
Jay Z, the phenomenally successful rapper and producer, knows the business and is alarmed by prosecutors using performances as evidence of a crime. He and other artists supported a proposal by New York state Sens. Brad Hoylman and Jamaal Bailey to limit the use of an artist’s creative expression in criminal trials.
In written testimony submitted on behalf of Jay Z and other artists, Jay Z’s lawyer Alex Spiro and University of Richmond professor Erik Nelson argued that rap “is rooted in the long tradition of storytelling that privileges figurative language, is steeped in hyperbole and employ all of the same devices we find in more traditional works of poetry.” These are tales as old as time.
Prosecutors, the supporters of the legislation argue, present “rap lyrics as rhymed confessions of illegal behavior,” allowing them “to obtain convictions even when other evidence is lacking.” The trend is growing, and where the weight of it has fallen should surprise no one. “[T]he overwhelming majority of artists in these cases are young black and Latino men,” according to Spiro and Nelson.
Billboard, the bible of the music business, reported the legislation “would limit the circumstances in which any form of ‘creative expression’ can be shown as evidence of a crime to a jury. If passed, prosecutors could only present such material to jurors if they can show that an expressive work is ‘literal, rather than figurative or fictional.’” A performance is not a diary or a confession. It’s art. If a free society is to flourish, art cannot be distorted into an admission of a crime.
Popular music has long baffled and sometimes infuriated established figures. Elvis Presley’s hip-gyrating performances in the 1950s caused one Florida judge to threaten the singer with jail. Cameras during one of the rock ‘n’ roll phenomenon’s 1957 performances on the popular Ed Sullivan television show did not show him below the waist.
Depictions of violence are staples of fiction, film, television and music. Rap is part of that tradition.
The law has not always tried to meld an artist’s public and private personas in criminal prosecutions. Jack Benny, one of the 20th century’s great and durable comedians, portrayed himself as epically stingy on his popular radio and television shows. In 1939, Benny was prosecuted for purchasing jewelry smuggled into the United States from Europe. Prosecutors did not attempt to use Benny’s radio scripts as a confession. He pleaded guilty, paid a fine and spent a year on probation.
These are less restrained times, and rap elicits a different reaction from the powerful. The NY proposal passed the Senate, but time ran out before the Assembly could act. Hoylman and Bailey are going to introduce it again. Someone in Connecticut committed to free expression and creativity should too.
Kevin F. Rennie of South Windsor is a lawyer and a former Republican state senator and representative.