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“When They Came for the Rappers, I Did Not Speak Out; As I Was Not A Rapper…”: Rap Music and the Freedom of Artistic Expression On Trial

One of the first lessons that we learn with regards to our rights that are considered inalienable in the Constitution is that we have the right to freedom of speech. This right, though tempered by the scope and limitations so as to ensure the safety of the general population, has allowed culture and discourse to expand and grow exponentially. The right to expression and freedom of speech has led to a culture, subculture, and counter culture by which our ideas, even if they are unpopular, may lead to innovation and invention. This right has set our culture apart from many others and has been one of the foundations of the United States. However, the words of the (rap) artist may no longer be safe.

The Purpose: Crack-down on Gang-Related Crimes

In the United States, the federal and state courts have been split as to the use of rap lyrics as evidence to prove criminal intent. The move to incorporate rap lyrics was part of a movement by California prosecutors attempting to crack-down on gang-related crimes. The introduction of a new California law makes it a felony to promote criminal conduct in connection with and on behalf of a street gang. The defendant does not have to be a member of the gang; he or she only needs to have some association with or have taken some action that benefits a street gang.

Rap Lyrics Used as Evidence in Criminal Proceedings

Gang affiliation in California has extended beyond the wearing of colors and prosecutors are including everything from tattoos to hand signs, and finally to the inclusion of rap lyrics recorded by young rappers attempting to get stardom. These rap lyrics, in turn, are being used like confessions, suggesting that what one writes in pursuit of the arts, is, in fact, a detailed criminal encounter. Rap music for prosecutors is no longer a form of expression. They are using these words to terrify the jury.

The Use of Rap Lyrics in Florida

California is not the only court to be interpreting rap music loosely. All around the country, circuit courts are deciding which side of the issue to take a stand. Florida, which is part of the jurisdiction of the 11th Circuit Court, is bound by the decision in an Atlanta-based offense, where the defendant’s conviction was upheld and the use of the defendant’s rap lyrics was found admissible as evidence.

Major Concerns Surrounding the Use of Rap Lyrics as Evidence

The biggest fear about the use of rap lyrics as evidence of criminal intent is that it is up the judges to determine whether there are material links between the rap lyrics introduced and the criminal offense. A judge who is less familiar with the genre of rap music and the gangster rap culture may not realize that part of the culture is the expression of these criminal behaviors.

For example, a rap artist may write about these criminal or violent actions to get street cred, but not ever have partaken in the violent act itself. Just because one rapper referenced a weapon, does not necessarily make his reference unique. There could be several rap songs referencing a similar violent act and someone less familiar with rap music and its culture may not realize that it is part and parcel of the group’s mores.

The U.S. Supreme Court Will Review

The U.S. Supreme Court will be deciding on the admissibility of rap lyrics as evidence in criminal proceedings in the coming months. The main issue of the case will be based around whether rap lyrics may constitute criminal intent and can demonstrate an actual and real threat, which is not protected by First Amendment freedom of speech. This begs the question: after the rap artists, whose freedom of artistic expression will be clipped next?

Experienced Criminal Defense Attorney in Fort Lauderdale

It is your right to be able to express yourself without fear of government involvement or later prosecution. Florida, however, believes that your rap lyrics may be the evidential key to putting you behind bars. It is also your right to have an experienced Fort Lauderdale criminal defense attorney like Kevin J. Kulik to zealously defend you against these accusations. Contact the Law Offices of Kevin J. Kulik today for a free and confidential consultation.

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