The conflict between rap lyrics and the First Amendment

The First Amendment’s free speech rights aren’t unlimited, and as some recent cases involving rap music artists show, rappers can be protected by that constitutional right, or face jail time for saying the wrong things.

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Image: Creative Commons User Tengilorg

The New York Times had a detailed review this week, written by Lorne Manly, of this double-edge sword.  Manly profiled the case of Antwain Steward, also known as Twain Gotti, a Virginia-based rapper who faces murder charges based on lyrics from one of his songs.

The song appeared on YouTube (it has since been taken down) and police believe the lyrics implicate Steward in a double murder back in 2007. Manly says there are three dozen cases in the past two years nationally where rap lyrics have played prominent roles in the prosecution’s cases.

At the center of the debate is the question of whether boastful rap lyrics, in the context of a criminal investigation, represent artistic expression or criminal evidence.

One example is the current case in front of New Jersey’s Supreme Court, where rapper Vonte Skinner faces attempted murder charges.

The court is considering if Skinner’s violent lyrics should be considered at trial. In 2005, Skinner was convicted after prosecutors introduced 13 pages of his lyrics as evidence.

An appeals court overturned the verdict. “This was not a case in which circumstantial evidence of defendant’s writings were critical to show his motive,” the majority wrote in the 2-1 decision.  The dissenting judge said that the “defendant’s songs narrated events similar to the conduct which resulted in the charged offenses.”

The American Civil Liberties Union is supporting Skinner in the latest case. It doesn’t dispute that lyrics can be used as evidence, but the group contends there needs to a direct link to the crime in the case.

Supporters of the free expression argument also cite as historic precedent one particular song from country music icon Johnny Cash.

In the Skinner case, the ACLU talks about “Folsom Prison Blues” in its brief to the court.

“That a rap artist wrote lyrics seemingly embracing the world of violence is no more reason to ascribe to him a motive and intent to commit violent acts than to … indict Johnny Cash for having ‘shot a man in Reno just to watch him die,’” the ACLU argues.

And as the Times points out, the Johnny Cash argument is being made in a Kansas case where an aspiring rapper, Philip D. Cheatham Jr., faces a retrial on double murder charges. Prosecutors used evidence from one of Cheatham’s songs, called “Prove Me Guilty,” to make their case.

Cheatham says he acts as a narrator in his songs, like Cash did. Prosecutors argue that song lyrics found in Cheatham’s car reference actual events he may have seen.

“If there had actually been a man in Reno that died,” prosecutor Jacqie Spradlin said, “and Johnny Cash was standing there watching it, it’s not too far of a jump to say that, ‘Hey, Cash may have been the one involved.’ ”

Another case from Florida shows where the wrong lyrics can cause legal problems.

In 2009, rapper Antavio “T.O.” Johnson accepted a two-year jail sentence after he was charged with threatening to harm police officers in one of his songs. Johnson pleaded no contest to charges he threatened two Lakeland police officers, allegedly by name, in a song called “Kill Me A Cop.”

The song was posted on MySpace by a third party when Johnson was in jail at the time on an unrelated charge.

First Amendment free-expression supporters raised points at the time of Johnson’s conviction that showed the complexity of the argument.

Penn professor Anita Allen, writing in the Daily Beast, thought the sentence was too harsh, and she put the case in context.

“The people arguing that all words set to song are protected by freedom of speech are wrong,” Allen said. “For all the protection afforded by the First Amendment, the Constitution doesn’t protect dangerous and offensive speech absolutely. …  And there is no unqualified freedom of speech to make threats to do a person bodily harm—that amounts to what the common law calls ‘assault.’” Allen said the question of whether the case should be a criminal or civil matter needed careful thought.

Gene Policinski from the First Amendment Center also said at the time that the free expression argument needed some constitutional context.

“Nothing in the 45 words of the First Amendment says we cannot be impolite, argumentative, insulting, even vile. Real threats to life and limb, whether we sing, say or post the words, are not protected speech,” he said.

Policinski said in the bigger picture, “we should expect — and protect — vigorous debate over serious public issues, which may well provoke tempers as well as intemperate remarks.”

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