Don’t let artistic expression take the rap

In 2005, Vonte Skinner was arrested after shooting, and paralysing, a fellow gang member; in 2008, he was found guilty of attempted murder and sentenced to 30 years in jail. But in 2012, an appellate court overturned the conviction on the grounds that a particular form of evidence should never have been admissible. Last Thursday, the case reached the New Jersey Supreme Court as the prosecution continues to insist that the evidence ruled inadmissible in 2012 does indeed suggest Skinner was guilty of attempted murder.

And what is this evidence? What is it that is so potentially incriminating? Incredibly, it’s song lyrics.

When police officers pulled over and arrested Skinner, an amateur rap artist, shortly after the crime was perpetrated, they found a notebook on the back seat of his car with page after page of rap lyrics. These lyrics – which were mostly written in the first person, describing violent acts, and using racial epithets and profanities – were certainly graphic: ‘I love bringin’ heat and to beef melt ya’ Jeep. Two to your helmet and four slugs drillin’ your cheek to blow your face off and leave your brain caved in the street.’

To anyone who has listened to rap music, particularly the gangsta sub-genre, this will sound pretty typical. It is also important to note that the lyrics were written between two months and four years prior to the alleged attempted murder and bore no specific relation to the crime in question. Despite this, prosecutors at Skinner’s trial in 2008 relied heavily on the lyrics as evidence, referring to them repeatedly during the trial. In fact, the trial judge allowed the state to read out 13 pages of lyrics in court.

This case is not unique and is part of a worrying trend across the United States. At the time of writing, 16 states have allowed rap lyrics to be presented as evidence by the state in prosecutions. In Virginia, the case of Antwain Steward goes to court in May. Steward is accused of murder, a charge which he denies, and his rap lyrics are a central part of the prosecution case.

Much of the coverage of these cases has focused on rap and associated racial stereotypes. The discussion has focused on the biases that exist when dealing with young men of colour in the US legal system. But there is another very troubling underlying issue here. As the American Civil Liberties Union (ACLU) states in its brief for the Skinner case, ‘that a rap artist wrote lyrics seemingly embracing a world of violence is no more reason to ascribe to him a motive and intent to commit violent acts than to saddle Dostoyevsky with Raskolnikov’s motives or to indict Johnny Cash for “having shot a man in Reno just to watch him die”’. The ACLU argues that rap lyrics, as artistic expressions, are protected under the First Amendment.

These cases suggest a worrying development whereby artistic expression can be used to prosecute someone. If we pursue the logic of these prosecutions, we allow a situation where any artistic expression of any sort may be used as evidence. The implications and absurdity of this trend become clear if we think beyond rap and murder. Would Lolita be admissible in attempting to try Nabokov for paedophilia? Perhaps Morrissey should be careful that the next case of theft from Harrods is not pinned on him as the writer of ‘Shoplifters of the World Unite’.

Humanity has benefited immensely from the creativity, openness and diversity of ideas generated by freedom of expression. And the ability of artists to discuss and write about their depraved and offensive thoughts and ideas is as important as their ability to write freely about love, sex and happiness. As Wendy Kaminer wrote recently on spiked, the right to ponder and express ideas should be nearly absolute.

The very idea of being punished or prosecuted on the basis of your jottings or musings in a notebook is deeply troubling and against the fundamental tenet of freedom of expression. All of us – and not just writers, songwriters and poets – should pay close attention to this type of case and fight tooth and nail for our freedom to express ourselves without fear of prosecution.

Neil Ross is a writer based in New York.