No, Courts Shouldn't Be Able to Use Defendants' Rap Lyrics As Evidence Against Them

If the Supreme Court of New Jersey's August 4 decision in New Jersey vs. Skinner is any indication, 2014 could prove to be the year when courts—including, perhaps, the U.S. Supreme Court—finally recognize rap as a form of artistic expression and social commentary in which hyperbolic lyrics, often filled with exaggeration and references to violence, typically are not meant to be taken literally. 

In Skinner, the Garden State's highest court held it was wrong for a trial judge to admit into evidence rap lyrics written by defendant Vonte Skinner in order to try to prove he was guilty of attempted murder. Prosecutors argued that "the lyrics helped to demonstrate [Skinner's] 'motive and intent' in connection with the offense because the rap lyrics addressed a street culture of violence and retribution that fit with the State's view of defendant's role in the attempted murder."

In rejecting this view, the Supreme Court of New Jersey wrote: would not presume that Bob Marley, who wrote the well-known song I Shot the Sheriff, actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story The Tell-Tale Heart, simply because of their respective artistic endeavors on those subjects. Defendant's lyrics should receive no different treatment.

New Jersey prosecutors in future cases are not completely out of luck, however. The court held that rap lyrics may be admitted as evidence of a defendant's intent and motive to commit criminal activity, but only if the government first demonstrates the lyrics have "a direct connection to the specifics of the offense for which it is offered in evidence" and the probative value of the evidence "is not outweighed by its apparent prejudice." 

In Vonte Skinner's case, the New Jersey Supreme Court found, there was no assertion whatsoever that his "violence-laden verses were in any way revealing of some specific factual connection that strongly tied [him] to the underlying incident." The court added that "the violent, profane, and disturbing rap lyrics that [Skinner] wrote constituted highly prejudicial evidence against him that bore little or no probative value on any motive or intent behind the attempted murder offense with which he was charged."

It's been a long time coming. More than two decades have passed since N.W.A. lit a political and cultural firestorm in the late 1980s with the song "Fuck Tha Police" and Ice-T's metal band, Body Count, followed up in 1992 with the inflammatory "Cop Killer." These were angry songs of political protest, not literal messages of intent to commit crimes against the police.

More good news for rap, rappers and fans of rap music could be just ahead. That's because the U.S. Supreme Court now has the opportunity to similarly acknowledge the artistic merit of rap and that its violent lyrics, by and large, are not meant to be taken literally. 

Next Friday, briefs are due with the nation's high court from the parties in the case of Elonis vs. United States. The dispute involves the question of whether or not the intent of the speaker/writer of words—in Elonis, the intent of the self-proclaimed rapper—must be considered in determining if those words constitute a true threat of violence and thus fall outside the scope of First Amendment protection.

Defendant Anthony Douglas Elonis was convicted of threatening his estranged wife and an FBI agent based on messages he posted in the form of rap lyrics on Facebook. Elonis claims his lyrics were merely a form of cathartic artistic expression and were not meant to be taken seriously—thus the importance of considering his actual intent about their meaning when he posted them. Unfortunately, most lower courts today, including the one that convicted Anthony Elonis, do not consider the intent of the speaker (in this case, the intent of the rapper). Instead, they determine whether something is an illegal true threat based on how some mythical "reasonable" observer would interpret them.

That standard is highly problematic. What level of knowledge of rap's artistic conventions of wordplay, signifying, boasting, posturing and metaphor is a "reasonable" person supposed to have? Many jurors don't understand rap. Meanings get lost in translation between rap literate speakers and rap illiterate jurors. Additionally, many jurors are likely biased and prejudiced against rap by news media portrayals of rap and rappers as associated with crime and violence. It is a point that rap music scholars Erik Nielson and Charis Kubrin made in the New York Times.

A victory this fall for rap music and the First Amendment freedom of speech in Elonis would mean holding that Anthony Elonis can be convicted of communicating true threats only if a court finds that it was, in fact, his actual subjective intent to threaten. That is the decision the U.S. Supreme Court must now make and give rap music back-to-back victories—and legitimacy—in Skinner and Elonis.

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