Why proposed laws to stop the criminalization of rap lyrics don't go far enough (Guest Column)

In June 2022, Jeffery Williams, the rapper known professionally as Young Thug, said from prison: “I've always used my music as a form of artistic expression and I see now that black artists and rappers don't have that freedom.”

Rap is the most important musical development of the last half century. It is a black art form that reflects, comments on, and helps define the American experience. Like other artistic expressions, rap lyrics are often imaginative and exaggerated. they cannot be considered autobiographical. And like famous surrealist painters, some rappers combine their experiences with flights of fancy, leaving the audience to decide what's “real” and what's not. Other rappers write entirely fictional accounts without labeling them as such – sometimes for commercial appeal. As Young Thug explained XXL magazine in 2016: “I started doing a thug style… I started doing cool trap music… Their songs have made millions of dollars, but their songs are not me.”

Like other artists, creators of rap music are protected by the First Amendment. Therefore, they have the right to create ambiguous art that does not separate fact from fiction.

Unlike other types of artists, however, rappers find their art used against them in criminal court as over-aggressive prosecutors accuse rappers of committing the alleged crimes depicted in their lyrics. It seems the ultimate rap battle is between the First Amendment and the Sixth Amendment — pitting freedom of expression against the right to a fair trial. The racial injustice of this tactic is obvious. The directors of horror and action films do not have to defend themselves in criminal court against claims that their films depict real events. Nor should the creators of country or death metal music justify their songs to judges or a jury as fiction — no matter how violent their lyrics may be. Only rappers stand out like this.

With heart, the music industry and social justice community joined forces with lawmakers in opposition to this egregious prosecutorial overreach. For example, California amended its rules of evidence to place additional burdens on prosecutors seeking to “admit into evidence” of the crime “a form of creative expression.” In New York, proposed legislation similarly seeks to create a presumption against admitting evidence of a defendant's creative expression in criminal trials. And, at the federal level, the Restoration of Artistic Protection Act (RAP Act), which seeks to protect artists from the misuse of their lyrics in both criminal and civil proceedings, has been reintroduced in Congress. This bill has support from groups such as the Black Music Action Coalition (BMAC), the Recording Academy, the Black Music Collective, and SAG-AFTRA. All of these pieces of legislation aim to protect artists from prosecutors who want to use their creative expressions as evidence in criminal trials — ensuring that rap artists enjoy the benefits of both the First and Sixth Amendments to our Constitution.

While these efforts are laudable, a significant gap remains in the area of ​​criminal conspiracy prosecutions. A conspiracy is a crime where two or more people agree to commit an illegal act and someone in the conspiracy takes an affirmative step — or “overt act” — toward the act. While actual and proposed California, New York and federal statutes would make it more difficult for prosecutors to use rap lyrics as evidence of a crime, they do nothing to prevent prosecutors from claiming that the rap lyrics themselves are element of a crime — specifically, the so-called “overt act” crime element of conspiracy. Additional legislation is urgently needed at the state and federal level to prevent this.

Conspiracy charges are dear to prosecutors because many criminal conspiracy statutes allow the government to charge any alleged conspirator with all crimes committed by the conspiracy, so long as the alleged conspirator: (1) knowingly and willfully participated in the conspiracy; and (2) committed an “overt act” in furtherance of the conspiracy. Thus, by claiming that a rapper's lyrics constitute an “overt act,” a prosecutor may seek to hold that rapper criminally responsible for crimes that the rapper did not even commit, but other members of the “conspiracy” committed. In other words, rappers can be charged as well convicted of other people's crimes just because of rap. This prosecutorial tactic literally criminalizes rap music.

The ongoing Young Thug/YSL lawsuit highlights the urgent need for legislation to ban this tactic. In that case, the prosecution charged the defendants under the Georgia Racketeer Influenced and Corrupt Organizations (RICO) Criminal Conspiracy Act. The grand jury indictment characterizes YSL as a gang involved in criminal activity, with the Grammy-winning artist at the forefront. To link various defendants to the alleged “conspiracy” and thereby lock them into the dock at trial, the prosecution claimed that specific sets of rap lyrics constituted “overt acts.” On their face, these lyrics are a form of artistic expression, involving clever wordplay and other forms of humor. Verses cited by prosecutors include:

Without legislation preventing these or other rap lyrics from being charged as “unseen acts,” prosecutors will continue to use them to bolster their cases. We call on the music industry to join its allies in pushing for the introduction and passage of such legislation. Until that happens, the music industry and its allies should pressure the candidates running for attorney general to promise not to prosecute rap lyrics as “unseen acts.” Additionally, and until the new legislation is passed, criminal defense and music industry attorneys should advise their clients of the risks of prosecution for simply creating rap, however outrageous and unfair that may be. Otherwise, rappers will continue to walk a precarious line that could see their lyrics interpreted as a crime, undermining fundamental principles of artistic freedom and raising urgent questions about racial and creative justice in the courtroom. Rap artists don't have to choose between their First and Sixth Amendment rights.

Jeffrey Movit is a civil litigator in New York and Los Angeles whose practice areas include copyright, trademark, defamation, and entertainment law. He has been called the “lawyer to the stars”. New York Postand named after Advertising sign magazine as one of the “Top Music Lawyers” for 2022, 2023 and 2024.

Priya Chaudhry is a nationally known, award-winning criminal defense attorney who regularly handles high-profile, high-stakes criminal cases. With nearly 50 jury trials in 25 years of practice, The Hollywood Reporter named Ms. Chaudhry as one of the “25 Power Lawyers” it identified as “Hollywood's Troubleshooters.”

Awais Arshad is a criminal defense attorney at ChaudhryLaw, a Fulbright Scholar, and barred in many jurisdictions, including New York, England and Wales, and Pakistan.