July 8, 2022

When Johnny Cash sang “I shot a man in Reno just to watch him die,” no one took these lyrics – or those of many other country musicians – to be a literal confession. Although Cash was arrested many times for misdemeanors and even adopted an "outlaw" persona, they contributed to his musical success rather than his detriment. Other musicians are unfortunately not so lucky. Black, male rappers who face criminal legal trouble often experience the prosecution using their lyrics as evidence, a phenomenon known as Rap on Trial.

Rap lyrics have been introduced as evidence in many criminal trials in Georgia over the past several decades. A notable example was the 2016 trial of Gary “Eldorado Red” Bradford; the prosecution spent 30 minutes questioning Erik Nielson, an expert on Rap on Trial, ending after Nielson refused to claim that the persona Eldorado Red was a real representation of who Bradford was. In May of 2022, Rap on Trial became relevant in Georgia yet again as members of Young Slime Life - Young Thug’s music label - were indicted on a variety of drug, gun, and gang charges, with lyrics being introduced as evidence.

Rap lyrics are a form of artistic expression. They offer a glimpse into a rapper’s life and community experiences, touching on themes like systemic racism, police brutality, and gang violence. These creative expressions are protected under First Amendment rights. That rap lyrics and performance personas are often interpreted as real rather than fictitious artistic expression highlights a bias toward Black male rappers. Increasingly, rap lyrics are being used as evidence in criminal trials. The continued popularity of the genre, which arose from 70s block parties in Black neighborhoods in the Bronx, shows how well the art form and its messages resonate within the Black community and beyond.

Juries often interpret defendant authored rap lyrics introduced as evidence with bias, missing all artistry and nuance. The negative associations with rap music and its musicians allow for judges to frequently admit these lyrics as evidence. The broad admission of rap lyrics as evidence in criminal trials results in the criminalization of artistic expression and speech.

A 2013 poll by Public Policy Polling found that 68% of Americans rated rap as unfavorable, while almost every other genre polled received a favorable rating. A study by sociologist and criminology professor Charis Kubrin found that when participants were shown the same lyrics but were told it was rap versus country, they tended to interpret the rap lyrics “very literally” as compared to the participants who were told they were reading country lyrics.

Every time this type of evidence is admitted and the art is taken literally, the First Amendment rights of Black rap artists are violated and they are robbed of their voice. Rap on Trial is a pressing civil rights issue at the intersection of freedom of expression and racial justice.

Nneka Ewulonu (they/them) is a Staff Attorney at the ACLU of Georgia.