A rap over the knuckles for US prosecutors

Vonte Skinner is one of the many amateur rap artists whose lyrics have been used as evidence against them in US court cases. Skinner was charged and convicted of attempted murder by a New Jersey court in 2008. Part of the evidence submitted by the prosecution, and which led to his conviction, was a notebook full of scrawled rap lyrics that was found in Skinner’s car. This decision was overturned by the New Jersey appeals court in 2012 which deemed the lyrics inadmissible. Due to a split decision at the appellate court, the prosecution was able to take the case to the New Jersey Supreme Court which last week finally ruled in Skinner’s favour.

In a unanimous verdict, the court upheld fundamental principles of freedom of expression, denounced the state’s prejudicial use of song lyrics and upheld the right to be offensive:

To be sure, writing rap lyrics – even disturbingly graphic lyrics, like the defendant’s – is not a crime. Nor is it a bad act or a wrong to engage in the act of writing about unpalatable subjects, including inflammatory subjects such as depicting events or lifestyles that may be condemned as anti-social, mean-spirited, or amoral.

As argued on spiked in April, the creation of a legal culture in which lyrics, poetry, writings or any other form of artistic expression can be used against the author in a court of law could seriously inhibit artistic freedom, limiting what artists feel they can create. The Supreme Court justices used their own examples to underline the absurdity of using fictional materials to aid prosecutions:

One cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff”, actually shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story “The Tell-Tale Heart”.

Vonte Skinner will now be retried for attempted murder; his rap lyrics will not be admissible as evidence, nor will similar forms of artistic expression be admissible in future cases.

Yet there are still numerous similar cases being heard in courts throughout the US. In the Autumn, the US Supreme Court will hear the case of Anthony D Elonis. Like Skinner, Elonis’s rap lyrics have been used to convict and imprison him. But unlike Skinner, Elonis’s only crime was to write the lyrics. Elonis did not physically do anything. Indeed, the ‘threat’ invoked by the lyrics was enough to convict him. In this case, the lyrics were published on Facebook and, according to the prosecution, were a direct threat to Elonis’s estranged wife.

Various legal issues arise from this case, including the legal definition of ‘true threat’, particularly in the context of social media, and also the use of threatening and offensive language in a socially complex artistic genre such as Gangsta Rap. The case provides an opportunity for the court to address the use of language and artistic expression in the context of today’s media landscape, one in which the soap box has been replaced by Twitter and Facebook. First Amendment protection for freedom of speech must not be limited to certain people at certain times using certain mediums of communication. To that end, Supreme Court justices should follow the lead of their New Jersey colleagues in distinguishing words from actions – this is something we should all be encouraging.

Neil Ross is a writer based in New York.

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