Rap Is Art, Not Evidence

A new documentary chronicles efforts to keep rap lyrics from being used by prosecutors, combatting a long-standing trend of criminalizing this particular art form.

Though rap music is the most listened to genre in the United States, it is still the only creative medium consistently being used to prosecute and incarcerate people. The ongoing criminal trial of Grammy-winning artist Young Thug exposed this prosecutorial tactic to many people for the first time, but it’s in no way a new practice, with nearly 700 documented cases of lyrics being used to criminalize artists, predominantly young Black and Latino men.

As We Speak: Rap Music on Trial, a documentary by J.M. Harper, Emmy-nominated director of jeen-yuhs: A Kanye Trilogy, intricately examines the evolution of racist attitudes and actions toward Black music genres that spans centuries, connecting the current legal weaponization of rap music to a long-standing history of Black musical genres being deemed immoral and illegal.

“At every stage of a new Black [musical] genre being made, it was stifled,” Harper says. “It was bringing white and Black people together. It was erasing these fabricated racial boundaries that allowed one people to oppress another. That was, and still is today, a very contentious thing to do. So why are lyrics used in this way? There’s 400 years of history to go through to answer that question.”

During the trans-Atlantic slave trade, enslaved people used song as a way to hold onto home, hope, and culture. While working in fields, Negro spirituals often disguised hidden messages that could be sung in front of plantation owners. Following the Stono Rebellion, the largest rebellion by enslaved people in the British mainland colonies, South Carolina created the Negro Act in 1740, banning drums and citing them as a tool of insurrection.

There were also protest songs in the rhythm and blues era. Both jazz music, which emerged in criminalized places like brothels and speakeasies, and rock ’n’ roll (before it was stolen from Black artists like Sister Rosetta Tharpe and appropriated by artists like Elvis Presley) were demonized. During the civil rights movement, soul music was a clear outlet for Black voices to be heard, like James Brown’s “Say It Loud—I’m Black and I’m Proud.”

Hip-hop followed shortly after, emerging from the underground scene and quickly growing into a whole new genre and culture that encapsulated DJing, graffiti, breakdancing, and eventually rap, born out of frustration and chaos of negligent social structures within the South Bronx, New York. Sally Banes, one of the first journalists to report on breakdancing back in ’81, described it as “ritual combat that transmutes aggression into art.”

Hip-hop and rap created an outlet for battles to diffuse nonviolently, repurposing struggle to provide social mobility while being therapeutic, and providing systemic critique and social commentary that was upfront, anti-establishment, and anti-police. It’s no surprise that the genre—which includes N.W.A’s “Fuck tha Police,” which can be viewed as political speech—hasn’t been received well by institutions. As Harper says, “No system of entrenched power wants to be questioned [or] threatened in such a way.”

Lyrics read during court, isolated from music and meaning, is undeniably an attack on the art form. Rap is embedded with metaphors, allegories, double entendres, and references to other musicians’ bodies of work, which can easily be misinterpreted or misunderstood.

“The only voices that are speaking are the district attorney, the prosecutor,” Harper says. “The only person who’s silent in that whole constellation of people is the rap artist, the person on trial. It just seemed so bizarre that the person who was at the center of the circus was quiet, and these are people who live for the stage.”

Erik Nielson, a professor of liberal arts at the University of Richmond and co-author of *Rap on Trial: Race, Lyrics, and Guilt in America*, has testified on behalf of defendants in more than 100 cases. *Photo courtesy of Paramount+*

Harper was inspired to create the documentary after reading Erik Nielson and Andrea L. Dennis’ 2019 book, Rap on Trial: Race, Lyrics, and Guilt in America, which is full of testimonies from people whose lives were forever changed because of this prosecutorial tactic. Nielson and Dennis estimate that in 95% of cases where lyrics were admitted into evidence, the defendant was a Black or Latino man.

Nielson, a professor of liberal arts at the University of Richmond, focused his Ph.D. research on the policing of Black creative expression in the United States from antebellum South to the present day. He has since testified, on behalf of defendants, in more than 100 cases.

“I really see the prosecution of rap as a trap,” Nielson says. “You systemically put people in circumstances where they have very few ways out. You dangle a couple of options, and then if you pursue one of those options, you slam the door as soon as they take it.”

Mac Phipps spent more than two decades wrongly incarcerated because of lyrics. In the documentary *As We Speak*, he shares his story while steering a boat. *Photo courtesy of Paramount+*

Mac Phipps is a living example of this. While performing at a show in Louisiana in 2000, a fight broke out that eventually resulted in gunfire. Knowing his family was in the audience, Phipps drew his firearm for protection, leading to him being identified as the primary suspect. There was a lot of conflicting evidence: Phipps’ gun was never fired, there was no forensic evidence tying him to the crime was uncovered, witnesses changed their stories, and a description of the shooter didn’t resemble Phipps. Even after another man confessed to the crime, Phipps was still charged with first-degree murder and sentenced to 30 years, despite having no previous criminal record.

The real incrimination came in the courtroom, when a prosecutor presented lyrics from two of his songs. The prosecutor spliced them together, one from a battle rap and another rap referencing his father’s experience as a Vietnam vet, to create a more violent verse that Phipps had never spoken nor written. Phipps served 21 years, refusing to accept parole because he would not say he was guilty for a crime he did not commit, before being granted clemency by Louisiana Gov. John Bel Edwards in April 2021.

“It almost seems ridiculous when a judge is reading a lyric out, divorced from its music [and] its context,” Harper says. “It’s very easy to mischaracterize that music. And it just totally ignores the fact of the tradition of hip-hop, of lyrics passed from one song to another, or one artist to another.”

Even with the First Amendment, Nielson says artists’ creative expressions are able to be criminalized because in most cases it’s not the lyrics themselves being punished. A crime is being punished, and the speech is used to establish involvement. If the actual lyrics are being punished, it’s because they’ve been deemed a threat.

Yet Johnny Cash, who sang, “I shot a man in Reno just to watch him die,” and Freddie Mercury, who famously belted, “Mama, just killed a man / Put a gun against his head / Pulled my trigger now he’s dead,” are beloved. Authors who write horror or crime novels are not accused of being killers because they possess the knowledge to write about it. There’s a clear distinction between author and narrator that is respected and not questioned.

Hip-hop artists aren’t afforded that same distinction because, as Harper sees it, there’s a cultural disbelief in the idea that Black people have the intelligence and creativity to create anything besides a direct account of their life, failing to see the “brilliance and poetry” of rap.

Rap has grown into a radical tool for social mobility, allowing communities who’ve been systematically oppressed and excluded the opportunity to get rich relatively quickly. When asked whether he believes prosecutors are using this tactic to stifle social mobility, Nielson said, “In some instances, maybe knowingly [or] subconsciously, I see this as an attempt to check these young men. As a way to say, ‘Remember who you are. Know your place.’”

“Too often, prosecutors are not really focused on a just outcome. They are focused on a win. And for them, a win is a conviction,” Nielson continues. “Any kind of foothold they can get, they’re going to use it. It’s a combination of much broader systemic inequalities and racism, but also just the nature of what it means to be a prosecutor in the American criminal legal system.”

While prosecutors use lyrics to incarcerate rappers, there are also many cases in which lyrics are used against people with no ties to an alleged crime or even to the music itself. Just being in the background of a music video or having lyrics from a favorite rapper scribbled in a notebook can be enough for prosecutors.

Thanks to visibility sparked from Young Thug’s trial, there’s hope that this heightened attention can be used to address inequities in the criminal legal system. In 2023, Georgia Rep. Henry C. Johnson reintroduced the Restoring Artistic Protection (RAP) Act, a first-of-its-kind federal legislation that attempts to limit prosecutors’ ability to use creative expression as evidence in criminal trials.

However, in order for the legislation to be truly effective, Nielson says it needs to be implemented on both a federal and state level. California, which has seen the most cases of lyrics introduced as evidence, passed Assembly Bill No. 2799. Although it isn’t the strictest legislation, it’s a start. A New York state law, passed in the senate, limits the admissibility of lyrical or creative evidence. In March, the Georgia Supreme Court overturned a conviction of an incarcerated man whose lyrics were used in his trial.

J.M. Harper, director of *As We Speak*, believes prosecutors are missing the “brilliance and poetry” of rap music. *Photo courtesy of Harper*

Harper is hopeful that legislators on both sides of the aisle can come together to address this issue. For Republicans, it is an issue of freedom of speech. For liberals, it is an issue of racial justice.

“There’s a rare opportunity for there to be agreement that this is something that shouldn’t be happening constitutionally,” Harper says. “The system won’t correct itself. Prosecutors’ job is to win with any tool in front of them. It’s a matter of making this tool less available, so that it’s not so easy to abuse and put people away wrongfully.”

Since it’s an election year, Nielson is encouraging people to be vigilant about local elections. As We Speak discusses the case of Drakeo the Ruler, an influential rapper who was wrongly incarcerated for three years. The day after Jackie Lacey, the former district attorney for Los Angeles, was removed from office and replaced with George Gascón, he was released from prison. (Drakeo’s freedom only lasted a year; he was killed in 2021.)

Nielson is hopeful that this prosecutorial tactic can be thwarted through continuous conversation and education about this issue and pressuring elected officials to pass legislation. However, in the meantime, rappers have begun censoring their own work, starting music videos with self-protective disclaimers.

“These artists attesting to the fictional nature of their lyrics, combined with all the disclaimers you now see on these videos [stating that] everything here is a prop,” Nielson says. “All of it reveals the sort of specter of the law hanging right over what they’re doing and their awareness that they are being watched. A mistake could be tragic for them. That to me, is not a healthy way for art to evolve.”

Kelsey Brown is a freelance journalist based in California, who is passionate about storytelling and social justice. As a queer, Black biracial person, her work often explores the intersections of race and gender on culture and society. Her writing and photography is featured in outlets like Insider, Brown Girls Doc Mafia, and Documentary magazine.

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