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Amid Rap Lyrics Controversy, California Enacts Legislation to Protect Artists in Court

Reni de la NuezNews & Insights

By Reni De La Nuez

Those who follow music news have likely come across articles discussing the admissibility of lyrics as evidence in criminal cases involving rappers. Perhaps the most famous recent case in which lyrics were presented as evidence was that of Young Thug and Gunna, two rappers from Georgia accused of violating the state’s Racketeer Influence and Corrupt Organizations (RICO) Act.[1] Fani Willis, the district attorney who has argued that Young Thug’s label, Young Stoner Life, is actually a gang responsible for up to 80% of all crimes in Atlanta, has advocated for the use of the rappers’ lyrics as proof of criminal involvement.[2] Although this prosecution strategy is not new, its recent use against such prominent figures in the industry has catalyzed the development of new legislation to limit the use of rap lyrics as evidence.

Prompted by this growing controversy, California Governor Gavin Newsom signed the Decriminalizing Artistic Expression Act (hereafter, the “Statute”) after unanimous approval by the state’s House and Senate in August of this year.[3] In passing the Act, the legislature intended to “provide a framework [to] ensure that the use of an accused person’s creative expression will not be used to introduce stereotypes or activate bias against them,” and to limit the use of rap lyrics and other creative expression as character or propensity evidence given the substantial risk of unfair prejudice.[4] The statutory language does not specifically reference rap lyrics, instead directing judges to consider the minimal probative value of the “creative expression” submitted as evidence, and the likelihood “that the trier of fact will … treat the expression as evidence of the defendant’s propensity for violence or general criminal disposition as well as … explicitly or implicitly inject racial bias into the proceedings.”[5] In order to accomplish this, the statute requires that the creative expression only be considered if it was created near in time to or is sufficiently similar to the charged crime(s).[6] If the proposed evidence survives this test, the Statute further calls on judges to consider any undue prejudice which may follow if “the trier of fact treat[s] the expression as evidence of the defendant’s propensity for violence” which may lead to bias.[7] To limit this possibility in a case where such evidence is admitted, the Statute calls for the admission of credible testimony on the social or cultural context of the creative expression and research related to racial biases.[8]

At the federal level, the recently proposed Restoring Artistic Protection Act (the “RAP Act”) takes a similar approach by restricting the use of creative expression such as “music, dance, performance art, visual art, poetry, literature, and film” as evidence to cases in which the prosecution can show that the defendant intended a literal meaning in their expression.[9]

Jurisdictions have been split on this issue. In State v. Skinner, the New Jersey Supreme Court reversed a murder conviction after finding that the use of rap lyrics as evidence against the defendant constituted “highly prejudicial evidence that bore little to no probative value” on the case.[10] The court elaborated that “even disturbingly graphic lyrics” cannot be used as propensity evidence under the Federal Rules of Evidence.[11] Five years after this holding, however, the Maryland Court of Appeals allowed the inclusion of lyrics as evidence in Montague v. State, holdingthat there was a close nexus between the defendant’s lyrics and the details of the murder at issue.[12] The Court further reasoned that because the lyrics qualified as proof of wrongdoing under a circumstance similar to the one for which the artist was being tried, their value was not “substantially outweighed by any unfair prejudice.”[13] Given this jurisdictional split, the question remains open as to whether these types of laws will do enough to protect artists.

Public opinion may be even more divided than the courts. When asked whether her strategy of using rap music as evidence infringes upon constitutionally protected freedom of speech rights, Willis conceded that while freedom of speech is “one of our most precious rights … [it] does not protect people from prosecutors using [music] as evidence.”[14] Others argue that music is inextricably bound to the freedom of expression that is inherent to the First Amendment. According to music attorney Dina LaPolt, rap music “[draws] on African-American storytelling traditions [and] often utilizes violent rhetoric as a form of intellectual competition and a vehicle for change … not to be taken literally.”[15] Those who share LaPolt’s views contend that lyrical evidence disproportionately impacts black artists as a result of a failure to understand the heritage and nature of rap music.[16]

Whether California’s new law will actually restrict courts’ use of rap lyrics as evidence remains to be seen. Given the state’s rich rap history and closeness to the entertainment industry, strict adherence to the Statute’s guidelines could set a precedent for other states struggling with how to properly address this issue.


[1] Charles Bethea, The Controversial Legal Strategy Behind the Indictment of Young Thug, The New Yorker (June 24, 2022), https://www.newyorker.com/news/letter-from-the-south/the-controversial-legal-strategy-behind-the-indictment-of-young-thug.

[2] Id.

[3] Ashley King, California Passes ‘Decriminalizing Artistic Expression Act’- Restricts Use of Rap Lyrics in Criminal Trials, Digital Music News (October 3, 2022), https://www.digitalmusicnews.com/2022/10/03/california-passes-decriminalizing-artistic-expression-act/.

[4] Decriminalizing Artistic Expression Act, A.B. 2799, State Assemb. § 1 (Cal. 2022).

[5] A.B. 2799 § 2.

[6] Id.

[7] Id.

[8] Id.

[9] Restoring Artistic Protection Act, H.R. 8531, 117th Cong. (2022).

[10] State v. Skinner, 95 A.3d 236, 238 (N.J. 2014).

[11] Id. at 249.

[12] Montague v. State, 243 A.3d 546, 570 (Md. 2020).

[13] Id.

[14] Bill Donahue, Young Thug’s Indictment Quotes His Own Lyrics. Here’s Why That’s Controversial, Billboard (October 5, 2022), https://www.billboard.com/business/legal/young-thug-indictment-quotes-lyrics-controversial-1235069258/.

[15] Dina LaPolt, Rap Lyrics Now Admissible as Court Evidence: A Dangerous Precedent, Variety (January 5, 2021), https://variety.com/2021/music/opinion/rap-lyrics-admissible-evidence-dangerous-precedent-1234878315/.

[16] Donahue, supra note 14 (quoting UGA Law School Professor Andrea Dennis) (“The tactic denies the artistic heritage, nature, and value of rap music, and strips the work and authors of all creative effort, as well as internal and external context that should inform one’s understanding of the music.”).