Rap v. United States

A case against one of the globe’s most influential artists highlights the longstanding prejudice against Black music in U.S. courts.

Call it creative, artistic, or poetic license. Writers and musicians have long used bold and provocative language, trusting audiences to distinguish between what is metaphor and what is literal. But recent U.S. court cases suggest that not all artists are given that same license when it comes to using their words as evidence of guilt. 

On one hand, we have the words of Nancy Crampton Brophy, an Oregon novelist: “I spend a lot of time thinking about murder,” she wrote. “Divorce is expensive, and … if you married for money, aren’t you entitled to all of it?” Guns are “loud, messy [and] if it takes 10 shots for the sucker to die, either you have terrible aim or he’s on drugs.” Brophy concludes that “it is easier to wish people dead than to actually kill them,” but “every one of us has it in him.”

Now consider the words of Jeffery Williams, a Georgia hip-hop artist better known as Young Thug: “Red just like Elmo but I never fuckin’ giggle,” he raps, spitting other lyrics like, “Ready for war like I’m Russia,” “I never killed anybody / But I got somethin’ to do with that body,” and “Ooh Woo, I done did the robbin’ / I done did the jackin’, now I’m full rappin’.”

The former are from Brophy’s 2011 essay titled “How To Murder Your Husband.” The latter are part of the work of a musician the BBC named the twenty-first century’s most influential rapper, a Grammy-winner who’s sold 2.5 million albums, with fifty-one songs certified platinum or gold. 

In May this year, jurors convicted Nancy Brophy, who is white, of killing husband Daniel Brophy with a ghost gun in 2018. Her words were excluded as evidence. Earlier that month, Jeffery Williams, who is Black, was arrested and charged with renting a car used in a homicide, reckless driving, and drug and weapons charges. His lyrics are at the heart of a Fulton County racketeering indictment against twenty-eight people allegedly in a Bloods-affiliated gang called “Young Slime Life,” which Williams purportedly leads. His lawyer says Williams is innocent and “cannot wait” for trial, which could begin as soon as January — at which point Williams will have been incarcerated for nine months. 

The Young Thug case is the latest, most high-profile example of U.S. courts’ decades-long, racist history of prosecuting rappers for creative expression. But it is also fueling a growing grassroots movement looking to finally put a stop to the practice of putting rap on trial.

California recently passed the nation’s first “Decriminalizing Artistic Expression Act,” which will make it harder for rap lyrics to become evidence. In New York, S7527 passed the Senate, and two U.S. Representatives have proposed a new federal law called the RAP Act, which would amend federal rules to limit the “admissibility of evidence of a defendant’s creative or artistic expression” in a criminal proceeding. Outside legislative halls, rap mogul Kevin Liles has launched both a Change.org petition called “Protect Black Art” that now has 68,000 signatures, and an open letter advocating for First Amendment protections for Black and brown artists signed by a lengthy list of stars and companies. 

The movement is focused on courtrooms, but springs from a basic question of creative freedom: Who, exactly, owns the power of metaphor? 

“Unlike white artists, especially men, who are often read as geniuses, there is a longstanding treatment of Black artists as if they are instinctual and only speaking about their feelings and themselves,” says Stephan Pennington, a musicologist at Tufts University. “They never get to be metaphorical.”

In their original fifty-six-count, eighty-eight-page indictment, prosecutors call Williams’ lyrics “overt acts,” or acts which show a clear intent to commit a crime. “The law is, if you sing the song, that’s an adoptive admission, you don’t have to write them,” a prosecutor told a Georgia court in August, in a proceeding in which Judge Ural Glanville denied Williams’ request for bail. His lawyer says Williams, who often collaborates with other artists, didn’t even write some of the words.

“Unlike white artists, especially men, who are often read as geniuses, there is a longstanding treatment of Black artists as if they are instinctual and only speaking about their feelings and themselves.”

In Oregon, in the very first minutes of Nancy Brophy’s 2022 trial, Multnomah County Judge Christopher Ramras excluded her essay as evidence. “Any minimal probative value of an article written that long ago,” he said, “is substantially outweighed by the danger of unfair prejudice and confusion of the issues.” 

When I quote this to him, University of California-Irvine law professor Jack Lerner responds, “If that’s not the criminal justice system telling on itself, I don’t know what is.” Some of Williams’ words, he adds, were written eight years before his indictment, making them older than Brophy’s. 

Can Williams’ lyrics show criminality? “It doesn’t mean shit,” Lerner says. That’s not an off-the-cuff remark, but one backed by careful research: Lerner co-authors a legal guide for attorneys with University of California, Irvine criminology professor Charis Kubrin, whose research has confirmed that the same lyrics, when presented as rap rather than country music, are often perceived as more “threatening.” 

Two other professors, Erik Nielson and Andrea Dennis, documented 500 cases of rap lyrics used as evidence and nearly thirty cases “where rap lyrics were introduced to help prosecutors obtain death sentences,” in their book Rap on Trial.

To anyone who grew up “on the wings of hip-hop,” as former MSNBC anchor Tiffany Cross has put it, the idea that a rapper’s rhymes about Elmo would be the centerpiece of a major criminal racketeering trial might seem laughable. But it’s been happening for over three decades, Lerner says, and may be just another symptom of our nation’s growing racial and cultural polarization. 

In 2019, Maryland’s Supreme Court ruled in Lawrence Ervin Montague v. State of Maryland that “rap lyric evidence has heightened probative value … when the lyrics bear a close nexus to the details of an alleged crime.” And in a 2020 California casePeople v. Ramos, Lerner says, “The court said, ‘well it’s true that some rap is fictional, but street rap is like a diary. Gang rap is true.’ Just this blanket statement, using this term no one ever really uses. It’s super irresponsible.”

Court records show police officers and prosecutors scouring “diss” tracks online, taking what they see and hear not as art but as confession. White artists, by contrast, are assumed to be abstractly profound, to the point where even Eminem’s ultra-violent and misogynist rhymes—often directly referencing his mother and ex-wife—are still deemed Shakespearean. 

In law, as in music, Lerner sees the same double standard. “A lot of the decisions by overwhelmingly white judges to admit rap lyrics comes from this notion that a young Black man is somehow less capable of having a fantastical or an active imagination, an inner life, and anything he puts down on paper can only be a literal expression of what he’s doing,” he says. 

“Rap music is a creative expression and covered by the First Amendment, which is neither a Democratic or Republican idea.” —U.S. Representative Jamaal Bowman

Nationally, evidentiary rules that protect “crime novelists, radical poets and screenwriters of horror films,” Nielson and Dennis write in Rap on Trial, don’t help rappers “unless the defendant is famous.” 

That’s certainly true of Williams, who helped make Atlanta an epicenter of hip-hop. His high-flying stature in the industry is clear in his collabs: Post Malone, Drake, Ariana Grande, Nicki Minaj, Camila Cabello, Usher, T.I., Future, Kanye West. It’s likely that some of the officials who have removed Williams’ freedoms have enjoyed his autotuned melodic verbiage at a bar or sports arena. 

Even the strongest pro-rap advocates agree that defendants should answer for any crimes for which there’s real evidence. “If you have hard evidence against someone, and you want to indict them, try them and convict them,” Representative Jamaal Bowman, Democrat of New York and co-sponsor of the RAP Acttold Cross on MSNBC, “that’s fine. But do not choke the life out of rappers and go after their free speech.”

Like rap songs, the murder ballads that pepper country and folk music can be interpreted as illicit or threatening. Taylor Swift and Haim recorded “no body, no crime” last year— in which Swift sings the real name of Haim member Este Haim: “I’ve cleaned enough houses to know how to cover up a scene / Good thing Este’s sister’s gonna swear she was with me.” 

Imagine Taylor Swift in court, facing those words. It wouldn’t happen. When asked in separate interviews, country music historians Rich Kienzle and Bill C. Malone couldn’t cite a single example of a white musician’s lyrics used as evidence in a criminal proceeding against them. 

Will the Young Thug case prove a turning point?

Support for the RAP Act bill keeps growing in the U.S. House of Representatives, its co-sponsors doubling to ten Democrats in recent weeks. Governor Gavin Newsom says that California’s new law ensures creative content can’t be used against artists without review. The New York bill—which passed the state Senate just days after Williams’ May arrest in Atlanta, but is not yet law—requires a higher standard: “clear and convincing” proof of lyrical relevance. 

In October, in what Lerner calls a “major” decision in the California case People v. Bryant that turned on rap lyrics, the verdict was overturned and a retrial ordered. Judge Clare Maier of Contra Costa County Superior Court ruled that prosecutors violated California’s Racial Justice Act, which became law on September 30, but applies retroactively

“Rap music is a creative expression and covered by the First Amendment, which is neither a Democratic or Republican idea,” Representative Bowman writes in a statement to The Progressive. “Nearly 600 mostly Black and brown men are incarcerated because lyrics have been used against artists in court. People are realizing that these are unjust prosecutions.”

The open letter—signed by companies including Sony, Live Nation, and Spotify and celebrities including the members of Coldplay and Drake—focuses hip-hop’s popularity on the halls of power. It was spearheaded and has been heavily promoted by Kevin Liles, former head of legendary Def Jam Records. Liles is the current CEO of 300 Elektra Entertainment, a branch of Warner Music Group and home of Williams’ Young Stoner Life label.

Liles has been fighting these battles for four decades, he told Judge Glanville. “So we sit here on trial, and we talk about lyrics,” he said. “Lyrics? I don’t understand the thing. But I’m going to keep fighting for it, because I believe [in] self-expression. And I believe we should protect Black art. And I’m on trial for lyrics? Come on, man.” 

As RAP Act co-sponsor Representative Hank Johnson of Georgia noted in a statement (quoting a 2021 caseBey-Cousin v. Powell): “Bob Marley did not confess to having shot a sheriff. And Johnny Cash did not confess to ‘shooting a man in Reno, just to watch him die.’” 

White misperceptions about Black music go back to Robert Johnson, said to have sold his soul to the Devil rather than practicing until his fingers bled, musicologist Pennington says. 

“There’s a persistent idea that Black people are only instinct, that they’re the body, not the mind. This is racism.”