Putting Rap Lyrics on Trial is a Violation of Free Speech
If song lyrics could be used as evidence in criminal trials, many of the most famous artists in history would be in serious trouble. Bob Marley sings 鈥淚 Shot the Sheriff.鈥� The Talking Heads鈥� biggest hit is 鈥淧sycho Killer.鈥� The opening lines to Queen鈥檚 鈥淏ohemian Rhapsody鈥� are 鈥淢ama, just killed a man.鈥� Fortunately for these artists, artistic expression is protected as free speech under the First Amendment.聽
However, some art forms are seen differently by many courts. Rap music, in trial after trial, has been treated as inherently incriminating. In Tennessee, an aspiring Knoxville rapper, Christopher Bassett, was convicted of the 2015 murder of Zaevion Dobson. At trial, the state showed the jury a rap video featuring Bassett as evidence against him, despite the fact that the videos were recorded months before the murder and make no mention of the victim. Prosecutors argued that Bassett鈥檚 sometimes violent and graphic imagery was a confession in song.聽
鈥淒ouble O,鈥� the song they claim indicated the defendant鈥檚 gang affiliation and appetite for violent retribution, includes lyrics like: 鈥淲e all gon鈥� blow / Till we all ten toes / To the sky.鈥�
To understand lyrics like these, they must be put in context. Bassett鈥檚 music is 鈥渄rill rap,鈥� a genre characterized by themes of gun violence, maintenance of neighborhood boundaries, and the tragedy of lives lost or taken. Nobody familiar with drill rap would raise an eyebrow at Bassett鈥檚 lyrics 鈥� they reflect the genre and its frequent use of the trope of a protagonist engaged in criminal activity. The actions described in the lyrics may sound violent, but the lyrics themselves are protected by the First Amendment.聽
The Supreme Court has ruled that it is unconstitutional to use protected speech as evidence when that speech is irrelevant to the case. This precedent was established in the 2013 case , in which the state tried to introduce the defendant鈥檚 Aryan Brotherhood tattoo as evidence in a murder trial. But because both the defendant and the victim were white, the tattoo 鈥� artistic expression protected by the First Amendment 鈥� was irrelevant. Dawson set a heightened evidentiary standard when it comes to art forms and other protected speech, whether a tattoo or a song. 鈥淒ouble O鈥� does not meet this standard.
The state claims that Bassett鈥檚 lyrics prove gang affiliation, and they proposed a theory that the murder was gang-related. But it was never proven that either the victim or Bassett were actually in gangs. This accusation hasn鈥檛 been proven, and nor is it relevant. And Bassett was not charged with any gang-related offenses. The music video was entirely irrelevant to any issue before the court.
Rap is not the only genre of music with lyrics about crimes. Country music in particular frequently features lyrics glorifying criminal behavior. We see it in Nashville 鈥渙utlaw鈥� musicians like Johnny Cash, who sang he 鈥渟hot a man in Reno just to watch him die.鈥� We see it in Appalachian 鈥渕urder ballads,鈥� like Dolly Parton鈥檚 鈥淏anks of the Ohio,鈥� which is about a jilted lover stabbing a victim in the heart. But country lyrics are understood to be fiction, not criminal evidence. In almost every case that used music lyrics as evidence, the defendant has been Black or Latinx. Bias against rap is merely thinly-veiled bias against Black and Latinx people.聽
Tennessee鈥檚 use of 鈥淒ouble O鈥� lyrics as evidence at trial is not only an illegal violation of constitutional free speech and free association rights, but would discourage artistic expression in the future. This is why we filed an amicus brief last week in Bassett鈥檚 appeal, challenging the admission of the rap video as evidence and asserting his right to free speech. If this precedent is allowed to stand, no one who has ever spit a rhyme is safe.
