Opinion: It’s scary to use art as trial evidence

YSL racketeering trial’s use of rap lyrics worries lawyers and artists alike, author says.
Outside of the front of the Fulton County Courthouse were a Young Thug new album promotional bus drove by on August 16, 2023 in Atlanta. Today is Young Thug’s Birthday. (Michael Blackshire/Michael.blackshire@ajc.com)

Credit: Michael Blackshire

Credit: Michael Blackshire

Outside of the front of the Fulton County Courthouse were a Young Thug new album promotional bus drove by on August 16, 2023 in Atlanta. Today is Young Thug’s Birthday. (Michael Blackshire/Michael.blackshire@ajc.com)

While the world knows Fulton County District Attorney Fani Willis for the RICO charges she’s brought against former President Donald Trump, her ongoing RICO prosecution of Grammy-winning artist Jeffery Williams - better known by his stage name, Young Thug - has also earned global attention for the implications it carries.

Specifically, DA Willis’s questionable decision to make Mr. Williams’ lyrics central to her RICO case against him has set the legal and music communities ablaze with concern.

Part of the challenge with using artistic works in criminal settings is that judges have little guidance when it comes to the First Amendment. In pretrial hearings, Chief Judge Ural Glanville decided he sees no free speech protections for creative expression and the First Amendment does not restrict the use of 17 sets of lyrics included in the indictment. The prosecution didn’t hesitate to abuse the court’s lax ruling in opening arguments, presenting lyric after lyric to the jury purportedly connecting Mr. Williams to alleged crimes committed by others.

Law professor Jack Lerner.

Credit: contributed

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Credit: contributed

This threat to free speech should concern us all, regardless of what we think about rap music or the case against Mr. Williams. The ease of sharing content via social media and streaming platforms has district attorneys increasingly using rap lyrics to rile up juries as a shortcut to conviction. If this tactic is normalized, artists of every stripe, and even fans on social media, are at risk.

Like any art, rap cannot be flattened into literal confession. Just as no one believes Johnny Cash “shot a man in Reno, just to watch him die” in “Folsom Prison Blues,” no one believes Rick Ross is “owed a hundred favors” by the late Panamanian dictator and drug trafficker Manuel Noriega as he boasts in “Hustlin”. Where is the line between this kind of exaggerated storytelling and a lyric like “ready for war like I’m Russia” cited in Mr. Williams’s indictment as “an overt act in furtherance of conspiracy”? Wordplay, creative license, nuanced cultural history and insider references make it dangerous to use any art form without prejudicing the jury or presenting fiction as fact.

Even music fans can misunderstand lyrics. Social media performed a collective spit-take when Mr. Williams’s attorney claimed the hit song “Pushin P” was about “pushing positivity,” but interviews immediately after the song’s release back up his claim. This underscores the danger of figurative works being presented literally.

Rap lyrics have been weaponized in criminal prosecutions at least 700 times since 1991, but researchers have found only four instances since the 1950s where lyrics from any other genre were used — and all four were tossed out or overturned.

Meanwhile, researchers have been demonstrating since the 1990s that juries carry negative prejudices about rap. A well-known study presented a folk song’s lyrics as rap to one group and as country to another. Test subjects who thought the lyrics were from a rap song perceived them as more literal, autobiographical and offensive than when the same lyrics were labeled “folk” or “country.”

In response, a bipartisan movement is growing to protect artistic works in court. Democrats alarmed by criminal justice double standards have found common cause with Republicans around the slippery slope these cases create for First Amendment protections and the danger to local creative economies. Notably, these laws take pains to balance free speech and public safety concerns. Although they establish the presumption that creative expression is inadmissible, they permit admissibility when there’s a demonstrated connection between specific allegations and lyrics, something consistently lacking in the YSL case.

Just last year, California enacted by bipartisan, unanimous vote a new rule that places guardrails on the use of all creative expression in court. Similar bills have passed chambers in red states like Missouri and blue states like New York. In Louisiana, the Republican Speaker sponsored a new law that requires pretrial hearings when lyrics are used.

In Georgia, DA Willis is on a political island regarding lyrics in court. The federal Restoring Artistic Protection Act is led by U.S. Rep. Hank Johnson, D-Lithonia, and has 29 co-sponsors, including U.S. Rep. Nikema Williams, D-Atlanta. The Atlanta City Council passed a unanimous resolution calling to limit the use of lyrics as evidence and leaders like Stacey Abrams have weighed in against the practice.

In the next legislative session, Georgia should act to stop this abusive practice. With rap on trial in Atlanta, Americans of all musical tastes and every political persuasion should be concerned about where this road leads and how DA Willis’s overreach will establish precedent threatening freedoms of music artists and fans.

Jack Lerner is a law professor at the University of California, Irvine School of Law and co-author of “Rap on Trial: A Legal Guide.”