Shoshana Paget
Ph.D. in Social and Cultural Analysis II, Sociology & Anthropology, Concordia University
August 1, 2018
Introduction
In 2010, high school student Taylor Bell was approached by several of his female classmates who told him that two of their coaches were engaging in inappropriate sexual behaviour towards female students. Bell, an aspiring rapper, was convinced that any report of misconduct would be ignored. He responded by writing “PSK da Truth,” where he called out the coaches and then posted the song online. The response by the high school and then the Fifth Circuit Court of Appeals illustrate many of the problems rappers face. In his song, Bell names the coaches and uses violent lyrics. He was questioned by school officials and maintained that while the allegations were true the violent lyrics were never intended to be taken literally. Nevertheless, Bell was suspended. He appealed the suspension but was denied on the grounds that he had threatened school staff. The school never involved the police or searched Bell’s locker for weapons when he was suspended on charges of intimidation and harassment. Significantly, one of the coach’s named in the song was quoted as saying that he did not believe that Bell was actually threatening him and that it was “just a rap.” Bell and his legal team appealed to the U.S. Supreme Court, arguing that the ruling censored Bell’s music, violated his 1st Amendment rights and denied 1st Amendment protection to rap music. (Nielson 1-5) Bell’s petition for review by the Supreme Court was denied in February of 2016.
Figure 1: Antwain Steward in jail on charges of murder, based largely on the lyrics in one of his rap songs. Picture by Khue Bui, source: New York Times.
Such incidents take place across the U.S. with alarming regularity: rap lyrics are used as evidence and mistaken by judges and juries to be first-person accounts. Bell is not the only one to be charged based on his lyrics nor is he the only one whose art has been taken out of social, historical and artistic context and used as evidence of a violent crime. Torrence Hatch was tried for murder based on his lyrics and one witness statement, which was later recanted. Clyde Smith rapped about selling prescription drugs, was charged with intention to distribute and, despite having prescriptions for the drugs, was found guilty and sentenced to 30-years in prison. Snoop Dog, Beanie Sigel, Ronell Wilson, Anthony Johnson, Antwain Steward, Olutosin Oduwole, and many others have had their lyrics used as evidence against them, lyrics which should be protected by the 1st Amendment (Kubrin and Nielson 186-193). So, why are prosecutors so successful in convicting rappers using lyrics? And why, if rap is an artform, is it not protected by the 1st Amendment?
The 1st Amendment, Legal Precedent & the Sound of Rap
The 1st Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.” The 1st Amendment protects freedom of speech including political opinions, media, and art including music. The Supreme Court has held that “under the First Amendment, artistic expression compares favourably in importance to purely political speech. Free speech guarantees thus protect the right of audiences to listen as well as the right of musicians to perform.” (Kahan 2593)
As Erik Nielson and others point out, rap has become a medium for voicing social and political protest, reflecting the often-harsh environment faced by many young people of colour. Research has shown that rap works as an effective tool of political engagement and mobilization, and that rap listeners are statistically more likely to engage in political protest (Nielson 11). As an art form, a tool for social change, and a vehicle that gives voice to a historically disadvantaged community, rap is exactly the type of speech which should be protected by the 1st Amendment.
Figure 2: Flyer for Professor Charis Kubrin’s lecture on “Rap on Trial.” Image Source: The Los Angeles Institute for Humanities
Unfortunately, rap is being used to charge and often convict rappers in astonishing numbers. While there are types of speech not protected by the 1stAmendment, legal precedent should provide protection for both rapper and rap music. Violent speech is protected unless it urges “imminent lawless action.” The imminent lawless action standard holds that speech “preparing a group for violent action and ‘steeling it to such action’ could be justifiably suppressed” while speech which “teach[es] a resort to force or violence may not be abridged” (Wolfe 686) So, while rap may have violent lyrics, if it does not incite “imminent lawless action,” it should be protected. The 1st Amendment also protects profane speech with the Supreme Court recognizing that the state does not have the right to edit public debate and that specific words can represent more complex meanings and ideas so that censorship of those words should be considered a violation of protected speech. Similarly, obscenity is protected if it is acceptable by local community standards (Wolfe 676-682). Most rap should therefore qualify as protected speech despite it’s often violent, profane and obscene nature.
There is also the way that rap itself sounds. Research indicates that playing a rap song in a courtroom will increase negative associations of hostility, violence and sexism towards African American defendants and can influence juries to be less empathetic overall (Nielson 22). How rap sounds, then, affects why it is not being protected. Research indicates that in 2017 only 4% of people 65 or older listen to rap with the percent rising to only 8% for those between 55-64.
Figure 3: Favorite music genres among consumers in the United States as of June 2017, by age group. Image source: Statista with data from Audiencenet and the Music Business Association
Unfortunately, statistically speaking, judges fall within the age group least likely to listen to rap music. Generally, judges are appointed somewhere between 54 and 62, and on the Supreme Court, the average age of Justices is 69 (McMillon 11). Essentially, judges just don’t listen to rap music and aren’t used to hearing, so they will not be able to discern its structure and this impacts negatively on liking. Over time, a person can become acclimated to a new genre and learn to, at the very least, tolerate it, but judges have no time for rap.
Another factor is the sheer speed of rap, which can be overwhelming and make the lyrics sound like gibberish. For example, in Eminem’s “Rap God” which holds the official record for most number of words per second in a hit single, Eminem raps 1,560 words in the 6 minutes and 4 seconds. This averages to 4.28 words per second, and in one 15 second segment, 97 words or 6.46 words per second. And even if a listener adapts to the speed of rap, there is also the language to get used to. Rappers use figurative language, following in the footsteps of African American poets by giving new meanings to familiar words. Lyrics are full of slang and coded references that are unrecognizable to outsiders (Nielson 15). Rap also builds on itself, referencing past songs, other artists and lyrics so not being familiar with the genre, it becomes nearly impossible to grasp the meaning of a song.
Conclusion
As a form of entertainment, a vehicle for political mobilization and protest, and as a means to give voice to a historically disadvantaged population, rap should be protected by the 1st Amendment. Yet, the number of rappers being charged and convicted using the lyrics of their music as evidence continues to rise. As A.L. Dennis argues, “when courts permit the prosecutor to admit rap music lyrics as criminal evidence, they allow the government to obtain a stranglehold on the case”(in Kubrin and Nielson 186). Part of the difficulty, as noted above, is the speed at which rappers speak, which is exceptionally fast and can be hard to follow. In “Rap God,” Eminem averages 4.28 words per second while Harry Shotta, who just dethroned Eminem for the world record of most words in a hit single, raps 1,771 words in 6 minutes. In essence, without listening to rap and without an appreciation for the structure or the historical and social context that has shaped it as a genre, judges and juries are unable to appreciate or understand the music and interpret its meaning. If rap is unintelligible, both literally and figuratively, why should it be considered worthy of 1st Amendment protection? However, despite, or perhaps because of how it sounds, rap should be considered a unique art form, a kind of social and political protest, a vehicle for social and political mobilization, and exactly the type of speech which needs be protected by the 1st Amendment.
Figure 4: Harry Shotta in the Guinness Book of World Records 2017 for most words in a hit single. Image source: UKF Music.
All links in this probe accessed on August 1, 2018
Further Reading
“Anything But Heavy Metal”: Symbolic Exclusion and Musical Dislikes by Bethany Bryson
Ban(ned) in the USA: Popular Music and Censorship by Steve Jones
Freedom of Speech and Press: Exceptions to the First Amendment by Kathleen Anne Ruane
The Conflict between rap lyrics and the First Amendment by Scott Bomboy
Bibliography
Kahan, Jeffrey B. “Bach, Beethoven and the (Home)Boys: Censoring Violent Rap Music in America.” Southern California Law Review 66.1 (1993): 8–23. Web.
Kubrin, Charis E., and Erik Nielson. “Rap on Trial.” Race and Justice 4.3 (2014): 185–211. Web.
Mcmillion, Barry J. U.S. Circuit and District Court Judges: Profile of Select Characteristics. Washington D.C.: N.p., 2017. Print.
Nielson, Erik et al. Bell v. Itawamba County School Board: On Petition for a Writ of Certiorari to the United States Court Of Appeals for the Fifth Circuit. Vol. 80202. Washington D.C.: N.p., 2016. Web.
Wolfe, Christopher Jon. “Sex, Violence and Profanity: Rap Music and the First Amendment.” Mercer Law Review 44.1 (1993): 667. Web.
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