California could soon have a law that protects rap lyrics and other creative expressions from being used against defendants in court cases. Democratic State Assemblyman Reginald Jones-Sawyer, who represents South LA, introduced the bill earlier this year. Gov. Gavin Newsom has until September 30 to sign it.
It’s necessary now because “rap lyrics have been weaponized against [rappers] in criminal trials,” says USC Professor of Law Jody Armour.
He continues, “The words that they use to express themselves … have been turned on them, presented to the jury as proof of intent or motive, but really underneath as proof of a certain kind of wicked person and disposition, who would utter these kinds of profanities and threats and make these kinds of violent lyrics.”
Armour explains that prosecutors have been drawing conclusions by looking at rap lyrics for a long time.
“If you say, ‘I am going to shoot you’ before you shoot someone, that’s speech, but it can be used against you as evidence of your motive. … They're using the language in the songs to show the proof to the jury that ‘see this defendant really did have … that wicked motive, that culpable intent. And so you should draw that conclusion just from listening to those lyrics.’”
Why does this happen with rap in particular — and not other music genres like punk or country?
“The sneaking suspicion of many is that the low-hanging fruit for these kinds of cases … [is] our young Black folk, especially young Black males, who are … some of the leading architects of this genre of music, especially so-called gangsta rap.”
He points out that Tupac, Nas, Ice Cube, HOV, Jay Z have all said strong lyrics that would be devastating if used against them in court.
He identifies the stakes: “Will we give that kind of art elbow room to breathe when it's made by Black creators? Or will we limit more Black creators than non-Black creators?”
The California bill, if passed, would go into effect in January 2023. It would require court cases to weigh the “probative value” of creative expression like rap lyrics or dance or film against that of its prejudicial value. For example, if rap lyrics are introduced into a case, they could be prejudicial and inject bias into the legal proceeding. Armour adds that the bill would “give a lot of weight to the fact that you're talking about creative expression, and that we don't want that creative expression to be stifled.”
He says, “Especially in a town like LA, we appreciate the importance and value of creativity and innovation, allowing people to push the boundaries and be edgy. And so this bill is giving more concrete protection to artists who want to push those boundaries.”