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NY lawmakers want to restrict rap lyrics as trial evidence

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A pair of state lawmakers are moving to restrict prosecutors from using rap lyrics as evidence in criminal trials, arguing using music in courtrooms infringes on New Yorkers’ First Amendment protections.  

The “Rap Music on Trial” legislation, spearheaded by state Sens. Brad Hoylman and Jamaal Bailey, would change state criminal procedure law in order to bar prosecutors from using artists’ “creative or artistic expression” against them unless they provide “clear and convincing proof” of a direct connection between the work and the alleged crime.

If signed into law, the measure would bolster free speech protections in the Empire State by making sure that defendants are tried exclusively with evidence of criminal conduct, “not the provocative nature of their artistic works and tastes,” reads a portion of the bill text.

State Senator Jamaal Bailey
State Sen. Bailey said hip-hop shouldn’t be scrutinized at a higher level than other forms of creative expression.
Pacific Press/LightRocket via Ge

“The right to free speech is enshrined in our federal and state constitutions because it is through this right that we can preserve all of our other fundamental rights,” Bailey (D-The Bronx) said Wednesday in a statement.

“The admission of art as criminal evidence only serves to erode this fundamental right, and the use of rap and hip-hop lyrics in particular is emblematic of the systemic racism that permeates our criminal justice system.

The legislation — S7527, introduced Wednesday — does not yet have an equivalent in the State Assembly. Reps for Gov. Kathy Hochul did not respond to a request for comment.

According to the bill, the “concerning” tactic of using an artist’s lyrics against them in a court, hinders free expression, and “warp[s] criminal courts into instruments for suppressing provocative speech.”

Brad Hoylman
State Sen. Brad Hoylman said the legislation is aimed at protecting First Amendment rights.
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“Art is creative expression, not a blueprint of criminal plans. Yet we’ve seen prosecutors in New York and across the country try to use rap music lyrics as evidence in criminal cases, a practice upheld this year by a Maryland court,” said Hoylman (D – Manhattan). “It’s time to end the egregious bias against certain genres of music, like rap, and protect the First Amendment rights of all artists.” 

Rapper’s songs have in recent years been used in courtrooms

In 2019, federal prosecutors used music videos featuring Tekashi 6ix9ine, whose real name Daniel Hernandez, as “context” in a case against Nine Trey Bloods Gang members accused of kidnapping and robbing the vulgar, rainbow-haired singer.

A judge in 2018 approved a prosecutor’s request for a lengthened sentence due to a rapper’s alleged gang activities that he broadcast on social media and featured the alleged killings in song lyrics.

The American Civil Liberties Union has for years fought against the legality of using rap lyrics as evidence, recently labeling it “unconstitutional.”

In 2014, a New Jersey state supreme court judge ruled that rap lyrics could not be used against a defendant, writing “simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views.”

The judge noted at the time that one could not reasonably conclude that Bob Marley literally fired a gun at a sheriff due to him singing the 1973 hit “I Shot the Sheriff.”

Additional reporting by Bernadette Hogan

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