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\n\tIn June 2022, Jeffery Williams, the rapper professionally known as Young Thug, said from jail: \u201cI always use my music as a form of artistic expression, and I see now that Black artists and rappers don\u2019t have that freedom.\u201d <\/p>\n
\n\tRap is the most important musical development of the last half-century. It is a Black art form that reflects, comments upon and helps define the American experience. Like other artistic expressions, rap lyrics are often fictitious and hyperbolic; they cannot be assumed to be autobiographical. And like famous surrealist painters, some rappers combine their experiences with flights of imagination, leaving the audience to decide what is \u201creal\u201d and what is not. Other rappers write wholly fictional accounts without labeling them as such\u00ad \u2014 sometimes for commercial appeal. As Young Thug explained to XXL Magazine<\/em> in 2016: \u201cI started doing a thuggish style \u2026 I started to make cool trap music \u2026 Them songs have made millions of dollars but them songs are not me.\u201d <\/p>\n\n\tJust like other artists, the creators of rap music are protected by the First Amendment; as such, they are entitled to create ambiguous art that does not separate fact from fiction. <\/p>\n
\n\tUnlike other types of artists, however, rappers find their art used against them in criminal court, as overly aggressive prosecutors charge rappers with having committed the alleged crimes depicted in their lyrics. It seems the ultimate rap battle is between the First Amendment and the Sixth Amendment \u2014 pitting the freedom of expression against the right to a fair trial. The racial injustice of this tactic is obvious. Directors of horror and action movies are not forced to defend themselves in criminal court against allegations that their films depict actual events. Nor must the creators of country or death metal music justify their songs to a judge or jury as fiction \u2014 no matter how violent their lyrics may be. Only rappers are singled out in this way. <\/p>\n
\n\tHearteningly, the music industry and the social justice community have joined forces with lawmakers in opposition to this egregious prosecutorial overreach. For instance, California amended its rules of evidence to place additional burdens upon prosecutors who seek \u201cto admit as evidence\u201d of criminality \u201ca form of creative expression.\u201d In New York, proposed legislation similarly seeks to create a presumption against admitting evidence of a defendant\u2019s creative expression in criminal trials. And, at the federal level, the Restoring Artistic Protection Act (RAP Act), seeking to shield 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 safeguard artists from prosecutors who want to use their creative expressions as evidence in criminal trials \u2014 ensuring rap artists enjoy the benefits of both the First and Sixth Amendments of our Constitution. <\/p>\n
\n\tWhile these efforts are commendable, a significant loophole remains within the domain of criminal conspiracy prosecutions. A conspiracy is a crime where two or more people agree to commit an unlawful act, and someone in the conspiracy takes an affirmative step \u2014 or \u201covert act\u201d toward the act. While the actual and proposed California, New York and federal statutes would make it harder for prosecutors to use rap lyrics as evidence<\/em> of a crime, they do nothing to prevent prosecutors from alleging that rap lyrics themselves are an element<\/em> of a crime \u2014 specifically, the so-called \u201covert act\u201d <\/strong>element of a conspiracy crime. Additional legislation is urgently needed at the state and federal levels to prevent this from happening. <\/p>\n\n
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\t\t\t\t\tMegan Thee Stallion, Post Malone & More Music Heavyweights Demand Limits on Using Rap Lyrics…\t\t<\/p>\n<\/h3><\/div>\n
\t11\/01\/2022\t<\/p><\/div>\n<\/div><\/div>\n
\n\tConspiracy charges are darlings of prosecutors because many criminal conspiracy statutes permit the government to charge each alleged conspirator with all crimes committed by the conspiracy, so long as the alleged conspirator: (1) knowingly and willfully joined the conspiracy; and (2) committed an \u201covert act\u201d in support of the conspiracy. Thus, by alleging that a rapper\u2019s lyrics constitute an \u201covert act,\u201d a prosecutor can seek to hold that rapper criminally responsible for crimes that the rapper did not even commit but rather were committed by other members of the “conspiracy.” In other words, rappers can be charged with and <\/em>convicted for other people\u2019s crimes merely by virtue of rapping. This prosecutorial tactic is literally criminalizing rap music.\u00a0<\/p>\n\n\tThe ongoing Young Thug\/YSL trial vividly illustrates the urgent need for legislation banning this tactic. In that case, the prosecution has charged the defendants under a criminal conspiracy statute, Georgia\u2019s Racketeer Influenced and Corrupt Organizations Act (RICO) law. The grand jury indictment characterizes YSL as a gang engaged in criminal activities, with the Grammy-winning artist purportedly at the forefront. To link various defendants to the alleged \u201cconspiracy,\u201d and thus to ensnare them into the defendants\u2019 seats at trial, the prosecution has alleged that specific sets of rap lyrics constitute \u201covert acts.\u201d On their face, these lyrics are a mode of artistic expression, involving clever wordplay and other forms of humor. Lyrics cited by prosecutors include the following: <\/p>\n
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\n- \u201cRed just like Elmo but I never f—in\u2019 giggle\u201d\u2014 Jeffery \u201cYoung Thug\u201d Williams <\/li>\n<\/ul>\n<\/div>\n
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\n- \u201cWhere you from, I\u2019m from Bleveland, throw your set up\u201d \u2014 Wunnie \u201cSlimelife Shawty\u201d Lee <\/li>\n<\/ul>\n<\/div>\n
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\n- \u201cI shot at his mommy, now he no longer mention me\u201d \u2014 Jeffery \u201cYoung Thug\u201d Williams <\/li>\n<\/ul>\n<\/div>\n
\n\tWithout legislation preventing these or other rap lyrics from being charged as \u201covert acts,\u201d prosecutors will continue to use them to bolster their cases.\u00a0We call for the music industry to unite with its allies to press for the introduction and passage of such legislation.\u00a0Until that happens, the music industry and its allies should press candidates running for district attorney to promise not to prosecute rap lyrics as \u201covert acts.\u201d Moreover, and until new legislation passes, criminal defense and music industry attorneys should advise their clients about the risks of prosecutions for merely creating rap, however outrageous and unfair that may be. Otherwise, rappers will continue to navigate a precarious line that could see their lyrics construed as a crime, undermining the fundamental principles of artistic freedom and raising urgent questions about racial and creative justice in the courtroom. Rap artists should not have to choose between their First and Sixth Amendment rights.\u00a0<\/p>\n
\n\tJeffrey 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 \u201clawyer to the stars\u201d by the\u00a0<\/em>New York Post, and he was named by\u00a0<\/em>Billboard\u00a0magazine as one of the \u201cTop Music Lawyers\u201d for 2022, 2023, and 2024.<\/em><\/p>\n\n\tPriya Chaudhry is a nationally-known,\u00a0award-winning\u00a0criminal defense trial attorney who routinely handles high-profile, high-stakes criminal cases.\u00a0With nearly 50 jury trials in 25 years of practice,\u00a0<\/em>The Hollywood Reporter\u00a0named\u00a0Ms. Chaudhry as one of the \u201c25 Power Lawyers\u201d it recognized as \u201cHollywood\u2019s Troubleshooters.\u201d<\/em><\/p>\n\n\tAwais Arshad is a criminal defense attorney at ChaudhryLaw, a Fulbright Scholar and barred in multiple jurisdictions, including New York, England & Wales and Pakistan.<\/em><\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"In June 2022, Jeffery Williams, the rapper professionally known as Young Thug, said from jail: \u201cI always use my music as a form of artistic expression, and I […]<\/p>\n","protected":false},"author":1,"featured_media":1598,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[6],"tags":[2270,729,2273,694,2272,2100,2271,2269],"class_list":["post-1597","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-lawyers","tag-criminalization","tag-dont","tag-guestcolumn","tag-laws","tag-lyrics","tag-proposed","tag-rap","tag-stop"],"_links":{"self":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/1597","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/comments?post=1597"}],"version-history":[{"count":1,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/1597\/revisions"}],"predecessor-version":[{"id":1643,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/posts\/1597\/revisions\/1643"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media\/1598"}],"wp:attachment":[{"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/media?parent=1597"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/categories?post=1597"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/usatrustedlawyers.com\/blog\/wp-json\/wp\/v2\/tags?post=1597"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}