By Eliott C. McLaughlin, CNN
Atlanta-area District Attorney Fani Willis is unabashed in using rap lyrics to help prosecute her cases, repeatedly defending the practice in recent months. It’s a tactic hip-hop artists have decried as a racist double standard for years.
In May, following the arrests of Atlanta’s Young Thug and Gunna, a 56-count indictment showed Willis, who helms the Fulton County prosecutor’s office, included the artists’ lyrics among sweeping allegations that they violated the Racketeer Influenced and Corrupt Organizations Act. Among those cited were the Thugger lyrics, “I’m prepared to take them down” and “I never killed anybody but I got something to do with that body.”
This week, Willis, who is African American, again said she would be leaning on lyrics in another RICO case prosecuting 26 alleged members of the Drug Rich Gang, who are charged with kidnappings, armed robberies, shootings and high-profile home invasions.
Among the targeted were singer Mariah Carey, Atlanta Falcons wide receiver Calvin Ridley and Atlanta United goalkeeper Brad Guzan, according to a 220-count indictment.
“I think if you decide to admit your crimes over a beat, I’m going to use it,” she said, deflecting criticism. “I’m not targeting anyone, but however, you do not get to commit crimes in my county and then decide to brag on it.”
She added, “I have some legal advice. Don’t confess to crimes on rap lyrics if you do not want them used.”
Lawmakers work to protect expression
Following the Young Thug and Gunna indictments, Willis flatly told reporters she was a believer in the First Amendment, but nothing in the amendment precludes prosecutors from using lyrics as evidence.
She’s right, but there is a large contingent of artists, lawyers, professors and politicians working to change that.
“There’s a void in the law and the void allows abuse, and we’ve been trying to fill the void by changing the laws statutorily across the country so that everybody — which is everybody, and I mean everybody — gets their right to a fair trial,” said attorney Alex Spiro, who represents rappers including Jay-Z, Meek Mill and 21 Savage.
Spiro sent a letter this year to the New York Legislature in favor of S7527, colloquially dubbed the “rap music on trial” bill. The proposed legislation, which passed the Senate in June but has yet to navigate the state Assembly, would limit “the admissibility of evidence of a defendant’s creative or artistic expression against such defendant in a criminal proceeding.”
Along with his superstar clients, Spiro was joined by Andrea Dennis and Erik Nielson, authors of “Rap on Trial: Race, Lyrics and Guilt in America,” who have repeatedly said they know of hundreds of cases where rap lyrics were weaponized against defendants, and they suspect far more did not draw public attention.
California lawmakers passed a similar bill this year requiring courts “to consider specified factors when balancing the probative value of that evidence against the substantial danger of undue prejudice.” It awaits the governor’s signature.
At the federal level, Reps. Hank Johnson of Georgia and Jamaal Bowman of New York introduced the Restoring Artistic Protection Act in the US House in July, which would limit “the admissibility of evidence of an artist’s creative or artistic expression against that artist in court.” The bill hasn’t reached the floor for a vote.
In a news release, Johnson quoted a federal judge’s 2021 finding in a Philadelphia rapper’s case: “Freddy Mercury did not confess to having ‘just killed a man’ by putting ‘a gun against his head’ and ‘pulling the trigger.’ Bob Marley did not confess to having shot a sheriff. And Johnny Cash did not confess to shooting ‘a man in Reno, just to watch him die.’ “
‘Accepting a double standard is dangerous’
Spiro previously served as a Manhattan prosecutor and worked with a unit examining potentially wrongful convictions. He’s seen lyrics introduced in court many times, including during bail hearings in which prosecutors alleged a defendant must be a gangster because of his lyrics and the way he spoke, “which is mind-boggling and absurd,” he said.
“I always worry in this country when the quantum of proof that should be needed in a criminal case, somebody has to try to use music lyrics to bolster that level of proof — especially with the tortured history in this country of not having people in the system treated the same as others,” he told CNN.
Asked if it mattered in the Atlanta cases that Willis is Black, Spiro said, “No.” Further queried on whether he’d witnessed cases in which artists from a traditionally White genre such as country or rock had objectionable lyrics leveraged against them, the attorney replied, “Of course not.”
Atlanta’s Killer Mike, who has been outspoken on the topic, was encouraging his Twitter followers to read Dennis and Nielson’s book this week while pointing out what he sees as the double standard at play. Nancy Crampton-Brophy, the rhymesmith noted, was convicted of killing her spouse, but prosecutors had to win the case without a key piece of evidence after the judge barred them from admitting her essay, “How to Murder Your Husband,” because it had been written years earlier.
“She was still convicted but her rights upheld. Accepting a double standard is dangerous is all I say,” Killer Mike tweeted.
Spiro also took part in petitioning the US Supreme Court to set a standard in the 2019 case, Jamal Knox v. the Commonwealth of Pennsylvania, but the high court declined to hear the case. Advocates had hoped justices would accept the case to address what Spiro views as the “void in the law.”
Knox and fellow rapper Rashee Beasley were accused of threatening to kill police after being arrested with heroin and a gun. While many cases involve prosecutors tying artists to crimes by citing lyrics in the abstract, Knox and Beasley were pointed, naming the officers and boasting knowledge of their schedules.
“I’ma jam this rusty knife all in his guts and chop his feet/You taking money away from Beaz and all my sh*t away from me/Well your shift over at 3 and I’m gonna f**k up where you sleep,” Knox rhymed.
Beasley added he was “strapped nasty” like Richard Poplawski, a reference to the heavily armed man who killed three Pittsburgh police officers in 2009.
One of the officers testified he retired from the police force and relocated because of the song, while the other officer required time off and a security detail, he testified.
Knox was convicted on two counts of terroristic threats and two counts of witness intimidation, which has been upheld by appeals courts. The Pennsylvania Supreme Court cited the rappers’ specificity in ruling the song constituted a “true threat to the victims” deserving of no First Amendment protection.
What is a true threat?
The void in the law involves the legal definition of a true threat — a matter experts say the US Supreme Court left open four years earlier in its Elonis v. the United States ruling.
Anthony Elonis posted threats on social media, in a skit and in rap lyrics targeting former co-workers, his estranged wife and elementary schools. When FBI agents visited his home, he took to Facebook to post, “Little Agent lady stood so close/Took all the strength I had not to turn the b*tch ghost/Pull my knife, flick my wrist, and slit her throat/Leave her bleedin’ from her jugular in the arms of her partner.”
Amid posting the lyrics, Elonis alluded to a First Amendment battle, saying, “Art is about pushing limits. I’m willing to go to jail for my Constitutional rights. Are you?”
Elonis was convicted on four counts of violating a federal threat statute and sentenced to 44 months in prison. But before the high court, his legal team contended his songwriting was cathartic, comparing his lyrics to those of Eminem, who has repeatedly threatened to kill his wife and others in his music.
The case, considered the Supreme Court’s first dealing with true threats on social media, ended with justices ruling 8-1 the lower court had erred in convicting Elonis based on the assertion a reasonable person would consider his posts threatening.
Such a legal standard was too low, the court ruled with Chief Justice John Roberts writing, “Our holding makes clear that negligence is not sufficient to support a conviction.”
Yet the high court left open what the standard should be and did not address the larger constitutional issue, which analysts predicted would result in disparate rulings.
Analyst Lyle Denniston wrote for SCOTUSblog that the ruling “was based solely on the premise that (Elonis) was convicted without proof that he knew what he was writing and that the ordinary meaning of his words would be a threat.” The 1939 federal law on true threats requires a communication containing a threat must be transmitted, and that the accused must be aware.
Denniston wrote, however, the ruling failed to set a standard, as mentioned in Justice Clarence Thomas’ dissent and Justice Samuel Alito’s partial dissent.
Alito predicted the ruling would “cause confusion and serious problems” because the majority provided only a partial answer as to what mental state was required for conviction, Denniston wrote. Thomas lamented the ruling left lower courts “to guess at the appropriate mental state” required for conviction. It discarded the approach of the previous appeals court, leaving “nothing in its place,” Thomas wrote.
Rappers: Our art is incomparable
The hip-hop community sees it in simpler terms, as evidenced by a legal brief filed in the Knox case four years later by Spiro and joined by Chance the Rapper, Killer Mike, 21 Savage, Meek Mill, Fat Joe and Luther Campbell, whose 2 Live Crew was integral in shaping the nation’s obscenity laws in the 1990s.
“Rappers famously rely on exaggeration and hyperbole as they craft the larger-than-life characters that have entertained fans (and offended critics) for decades,” the brief said. “A person unfamiliar with what today is the nation’s most dominant musical genre or one who hears music through the auditory lens of older genres such as jazz, country, or symphony may mistakenly interpret a rap song as a true threat of violence and may falsely conclude a rapper intended to convey a true threat of violence when he did not.”
If Knox’s conviction were upheld, they predicted, it would demonstrate different standards are applied to rap music than other forms of entertainment. Spiro sees it no differently today, which is why he has worked with rappers, politicians and think tanks to “lend a voice to various efforts of policy reform,” he said.
“There’s not any binding precedent that says you can’t, right? And so when the law doesn’t say you can’t do something and you’re a prosecutor trying to get a conviction, trouble can ensue,” he said.
“Given the gravity of the harm that can come from this and the important artistic rights and First Amendment rights at stake, this is an easy call,” the lawyer said. “We should not forget the history of this country and the fact that things that can be used to tilt the scales against some disenfranchised people … in the criminal justice system should be looked at very skeptically — and this is one of them.”
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CNN’s Amy Simonson, Dave Alsup and Leah Asmelash contributed to this report.