In 2014, the most powerful judge in the United States did something fairly unexpected.
He quoted Eminem.
“Dada make a nice bed for mommy at the bottom of the lake. Tie a rope around a rock … There goes mama splashing in the water, no more fighting with dad.”
Yep. That’s a line from 97 Bonnie and Clyde, from the rapper’s massive 1997 album The Slim Shady LP.
John Roberts, Chief Justice of the Supreme Court, was not (unfortunately) gearing up for a career change.
His court was hearing arguments in a case about a guy who had been jailed for threatening his ex-wife in what he claimed were the lyrics to a rap song.
The Eminem track features a guy talking euphemistically to his baby daughter about how he killed her mother because she left him for another man.
So, Roberts was trying to parse a particularly thorny issue: if you make threats in the lyrics of a song, is that artistic expression, or a crime?
And in finding somewhere to draw that line, are the idiosyncrasies of hip hop — and the identities of the people who generally make it — getting overlooked?
Hip hop lyrics and the courts
Rap lyrics are increasingly being used as evidence in criminal trials in the US and Canada, according to recent research and a forthcoming book.
That’s despite concerns the practice reinforces racist stereotypes and relies on a misunderstanding of the genre, which these days is the world’s most popular.
In September, facing a lengthy jail term over his involvement with the Nine Trey Gangsta Bloods, New York rapper and Instagram celebrity Daniel Hernandez, aka Tekashi 6ix9ine, turned state’s witness, telling a US federal court about the gang’s alleged crimes.
During his testimony, prosecutors showed his music videos — at one point asking him if the guns featured were real — and quoted lyrics to his viral hit GUMMO, which can’t really be repeated on this website.
The journalist Matthew Russell Lee was in the courtroom:
This came a few months after Chance The Rapper, 21 Savage, and Killer Mike — all major figures in hip hop — took the unusual step of writing to the US Supreme Court to school its justices in the history of rap music.
They were doing so in support of Jamal Knox, a Philadelphia rapper jailed for threatening police officers in a song.
The rappers and Knox’s lawyers were hoping the US Supreme Court would overturn that conviction by finding that you have to read hip hop lyrics in the context of that genre and its associated culture.
The Supreme Court ultimately decided not to take the case, leaving murky the definition of what, in a rap lyric or elsewhere, constitutes a “true threat”, the kind of speech not protected by the United States constitution’s powerful First Amendment.
Knox’s lyrics ‘primarily portray violence towards police’
In 2012, Knox, who uses the stage name Mayhem Mal, and a friend had been charged for alleged drug and gun possession.
Before their case made it to court, they released a video for a song that drew on their experience. The title might feel familiar: it was a homage to NWA’s anti-authoritarian classic (let’s just say it rhymes with “duck the police”).
In the song, Knox made reference to the arresting police officers in case, and used phrases like “let’s kill these cops cuz they don’t do us no good“. Other lines talked about knowing where the officers lived and what time they clocked off work.
Within days of the clip being posted on YouTube and Facebook, Knox was arrested and charged with making terroristic threats and witness intimidation.
The police involved testified they feared for their lives, and one said it was partly why he decided to quit his job and leave Pittsburgh.
Knox was found guilty. He appealed, but that was knocked back, too, with the Supreme Court of Pennsylvania saying the lyrics:
“… do not merely address grievances about police-community relations or generalised animosity toward the police. They do not include political, social, or academic commentary, nor are they facially satirical or ironic.
“Rather, they primarily portray violence toward the police, ostensibly due to the officers’ interference with [Knox]’s activities.”
Violent rap lyrics, from NWA to Eminem
Knox’s lawyers argued you needed to understand something about hip hop to understand the case, and a good place to start would be that original NWA song, from 1988.
Here’s a sample of the lyrics:
Beat a police out of shape
And when I’m finished, bring the yellow tape
To tape off the scene of the slaughter
Hip hop is known for its bluster and bravado. Rappers make wild claims and accusations and, like folk singers before them, inhabit fictional characters.
Knox’s high-profile supporters say the work of NWA, Eminem and others — they even mention comedian Kathy Griffin and her controversial comments about Donald Trump — cannot be treated like a “true threat”.
“The outcome of this case is of great concern to the music industry, where artists often reference specific persons and real-world events alongside violent lyrics and themes — often to worldwide critical acclaim,” they said in their court submission.
Rapper 21 Savage, a major rising star in hip hop, was one of the artists to lend his support to Knox. (Reuters: Andrew Kelly)
“Rap music — which draws on many artistic traditions, including violent language, hyperbole, and basing stories off larger-than-life antagonists — is especially vulnerable to erroneous and underprotective ‘true threats’ analysis.”
The idea that hip hop imagery should not be taken literally is backed up by US-based academics Charis Kubrin and Erik Nielson.
In their 2014 paper, published in the journal Race and Justice, they wrote:
“The near-universal use of stage names within rap music is the clearest signal that rappers are fashioning a character, yet the first-person narrative form and rappers’ frequent claims that they are “keepin’ it real” (providing authentic accounts of themselves and “the hood”) lend themselves to easy misreading by those unfamiliar with rappers’ complex and creative manipulation of identity, both on and off the stage.”
Andrea Dennis, a professor at the University of Georgia School of Law who has researched the phenomenon of rap lyrics being used as evidence, said grandstanding carried over to rappers’ use of social media.
“There is that performative aspect,” she told the ABC. “They are creating personas; they feel free to engage in hyperbole and braggadocio.”
Which brings us back to the Tekashi 6ix9ine trial, which ended on Thursday with the conviction of his two former gang associates.
While the rapper said he was part of the Nine Trey Gangsta Bloods, he was never initiated — for that he would have had to “cut someone’s face” or commit some other act of violence.
Instead, he just gave them financial support in exchange for the valuable street cred that comes with a gang affiliation.
Hernandez has a lengthy criminal record, including for selling drugs, and is facing nearly 50 years in prison after pleading guilty to gun and drug-trafficking offences. He also admitted to paying a gang member to shoot at the rapper Chief Keef.
Nevertheless, his testimony revealed parts of his tough stage persona were fictitious.
Does the law understand hip hop?
These cases suggest hip hop remains misunderstood, particularly by people who occupy positions of power, says barrister Greg Barns.
“How does the law deal with cultures which might be alien to it,” he asked.
“We have judges who come from particular backgrounds, generally quite wealthy backgrounds … in this particular case [involving Knox] individual judges have to get their heads around what is in the meaning of these words given their context.”
Many critics of using rap lyrics as evidence in criminal trials have suggested the practice is inherently racist.
In a 2016 study, Professor David Tanovich of the University of Windsor looked at the issue in Canada and found courts faced the “very real danger that rap lyrics will trigger and inflame stereotypical assumptions” among judges and juries — about the genre and the kind of people who work within it.
In a case in New Jersey in 2014, the violent rap lyrics of a man charged with attempted murder were not valuable, and too prejudicial, to be admitted as evidence.
“One would not presume that Bob Marley, who wrote the well-known song I Shot the Sheriff, actually shot a sheriff,” the judges said in their reasoning.
Professors Dennis and Nielson argue something similar in their new book Rap on Trial, in which they have identified at least 500 cases in the US alone of rap lyrics being used in criminal trials, at times leading to inappropriate or wrongful convictions.
Few would say Johnny Cash’s famous lyric “I shot a man in Reno just to watch him die” was evidence of the country singer’s murderous leanings, they write.
“It is quite clear to us that this [rap] is the only fictional art form that is used in this way,” Professor Dennis said, adding that race was an essential factor in the story.
There are very limited examples of it being appropriate, Professor Dennis said. For example, when a lyric accurately describes a specific crime.
“Usually, what’s happening is the lyrics are somewhat generic — talking about general crime or very common types of behaviour that almost any rap artist might talk about,” she said.
In Australia, Mr Barns said, where freedom-of-speech protections are much weaker, artists face greater pressures from the law — he mentions the Bill Henson obscenity case as an example — though we are yet to see a similar case involving rap lyrics in Australia.
“If we go through history, there is a lot of language of violence in music, in art, in the written word,” he said.
“If we were going to start prosecuting people on the basis of what they wrote, given the context of what they are writing, which is fictional or fanciful, then we would be in real trouble as a society.”