Hip Hop Is Down by Law (Just Don’t Take it to the Court)

In 1992, a California jury convicted Offord Rollins, IV, of murdering his former girlfriend. Rollins was a nationally ranked high school triple jumper and an aspirant for Olympic gold. But he was also an amateur rapper, the author of lyrics such as:

Let me go, Let me go
Bitch let me go
She wouldn’t let me go
So I slapped the ho

The prosecution presented the lyrics to the jury (11 whites and one Latino) as evidence that Offord was a violent misogynist capable of murder; he was convicted and sentenced to 29 years in prison.

Before Rollins’ appeal was decided, though, a psychologist presented the lyrics to a random sample of the local population. The psychologist told all participants Rollins was a high school athlete with a good academic record. One group also learned that Rollins had been charged with murder. A second group was not told about the charges, but instead was shown lyrics Rollins co-authored. The group given the lyrics evaluated the defendant worse on several scales, including likability and aggression. When the expert presented this evidence before retrial, the judge excised the majority of the lyrics. Without the lyrics, the jury deadlocked and prosecutors decided not to retry the defendant for a third time.

American courts, thus, have been dealing with the question of rap and hip-hop lyrics for a generation now.

Last month, in the case of U.S. v. Pierce, the Second Circuit Court of Appeals upheld co-defendant Melvin Colon’s lyrics as admissible. The Court allowed the lyrics as evidence proving motive and intent in crimes, including conspiracy, racketeering, firearms offenses and murder of a member of a rival gang. Colon performs under the name “Melly,” and in the rap video admitted at trial, his lyrics include territorial boasts such as:

YG to OG
Somebody make somebody nose bleed
I’m OG shoot the Ruger
I’m a shooter.

The court held that the lyrics were relevant to establishing Colon’s ties to the Courtland Avenue Crew (CAC) and his motive to commit violence against the CAC’s rival crew, the Young Gunnaz. The court acknowledged that rap lyrics might lead to undue prejudice against the defendant. But it found that the relevance of the lyrics was great enough to outweigh the potential for harm.

Hip hop music, which grew out of rap, is rebellious, radical and ragged, filled with violent images and expressions of lust and rage. Like the protest songs of the 1960s, hip hop music, at its heart, does not make for easy listening. True hip hop says love me or hate me, but this is who I am. American courts, by contrast, are staid and even stodgy; their views of art sometimes shift at a glacial pace.

Elonis v. U.S., decided earlier this spring by the Supreme Court, was tangentially concerned with when rap lyrics can be held to be a “true threat.” Prosecutors, the Court said, must show something beyond negligence—that the defendant either knew or intended his words to be taken as an intention to commit harm. Although Elonis was the first case in more than two decades in which the Supreme Court applied its wisdom to rap lyrics, state prosecutors have long been presenting rap lyrics as evidence to prove knowledge, motive, intent, opportunity or even mental state.

In American culture, to call someone a rapper summons a range of stereotypes—thug life, bottles of Cristal, and the sound of pistols. But in fact, hip hop music and culture are widespread and many “hip hoppas” don’t conform to stereotype. I am a woman, a ballet dancer, a published poet and a graduate of Yale Law School. I am also a hip hoppa, and since middle school, when I first began rapping on the bus, I have considered myself part of the hip hop nation. In November 2014, as our country reeled from the failure of our criminal justice system to bring to trial the officer who killed Michael Brown, an unarmed teenager, I wrote a rap to sort out my feelings. In the third verse, after suggesting in verse two that “my skin tone makes me the problem” but “I wish to God I could stop it,” I got real.

We gotta keep on, keep moving forward
Our world ain’t equal and we can’t ignore it
Our schools ain’t equal so we can’t reward them
Our scales are crooked so we gotta restore them.

“Keeping it real” might be the most central value in hip hop. But keeping it real does not mean every first-person song is a sober description of the rapper’s life. A rapper can keep it real by telling the story of that kid he knew in high school who took the wrong turn, even if telling it in the first-person for effect.

Yet, the gap between the “I” swaggering in a song and the “I” swearing an oath before a judge seems lost on prosecutors. The U.S. Attorney’s handbook on gangs begins with a quote from a rapper who boasts he has “dope and coke and all” and he’s “selling it,” and then suggests that lyrics are useful evidence of “true-life experiences” and “gang mentality.” But the handbook also admits that being “gangster” is now a mainstream synonym for “cool.” Such talk may be nothing more than a way for a young person to gain acceptance among his peers.

During the late eighties and early nineties—hop-hop’s golden age–groups such as Tipper Gore’s Parents Music Resource Center (PMRC) sought to restrict access to rap records. The FBI investigated West Coast hip hop group N.W.A. after it released the song “Fuck Tha Police.” A Florida sheriff succeeded in removing 2 Live Crew’s 1989 album “As Nasty As They Wanna Be” from shelves, even convincing a district court the record was legally obscene, before the Eleventh Circut overturned the ruling. From a hip hop perspective, all the negative attention meant the world was taking notice. If they are not hating, Kanye West would say, you must be doing something wrong.

In addition to the Elonis decision, a recent New Jersey case dealing with rap lyrics, State v. Skinner, augurs hope for hop. The New Jersey Supreme Court reversed the defendant’s conviction on the basis that highly prejudicial violent rap lyrics should not have been admitted. The Pierce decision noted this case, but then ignored its result.

The situations in which lyrics can come into court should be very narrow. Admissible lyrics should be an exact match of the crime charged. For example, lyrics about murdering a rival by beating him with a bottle of Hennessy and a tennis racket could come into court when the crime is a murder committed in that particular fashion. To be admissible, however, those lyrics should not have been recorded, performed or shared before the crime occurred -or else another may have copied the method to wrongfully implicate the lyricist.

Before courts admit lyrics as evidence, they should remember the peaceful side of hip hop: verbal aggression is often an alternative, not a precursor, to physical aggression. Instead of popping a few caps in his enemies, a rapper can drop a few tracks that merely talk about popping caps in his enemies, even if he never intends to pick up a gun. Rap battles can deescalate tensions and build camaraderie between rivals, two outcomes lethal battles or even legal battles almost never achieve. The law cannot ban a rapper’s album itself. But if the law can make real the fear that everything a rapper says in a recording studio will be used against him in court, the genre really may become nothing more than the “get money, fuck bitches” club everyone loves to hate.

For hip hop’s part, all it can do is keep telling the stories the majority finds hard to swallow, and hope one day something reaches the constipated judicial gut. As 2 Live Crew proclaimed on “Banned in the U.S.A.,” its follow-up to the album that ensnared the group in legal controversy, “Listen up y’all to what we say. We won’t be banned in the U.S.A.”

Karlanna Lewis

Karlanna Lewis , originally from Tallahassee, Florida, is a recent graduate of Yale Law School where she led a course on criminal law through the lens of hip hop. She is also an aspiring MC and plans to release her first mixtape soon. Follow her on twitter at @klannathebird.