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Note: This is an unedited rush transcript. Please check any quotations against the audio recording.

Nico Perrino: All right. Welcome back to So To Speak: The Free Speech Podcast, where every other week we take an uncensored look at the world of free expression through personal stories and candid conversations. I am, as always, Nico Perrino, your host, broadcasting from our Washington DC offices today.

And I have two professors with me in the office, the authors of a relatively new book called Rap On Trial: Race, Lyrics, and Guilt in America. Professors Erik Nielson and Professor Andrea Dennis, thanks for coming on the show.

Andrea Dennis: Thank you for having us.

Erik Nielson: Yeah, thank you very much.

Nico: So, Erik Nielson is an associate professor of liberal arts at the University of Richmond. What do you teach there?

Erik: I teach a variety of courses, but African-American and, right now particularly, courses focused on hip hop and hip hop culture.

Nico: Very good. And, Professor Dennis, you're at the University of Georgia law school. What are you teaching there?

Andrea: Sure. My primary core courses are criminal law and evidence, but I also teach family law, and juvenile law, and sometimes criminal procedure.

Nico: So, we're in my office here in Washington DC. And behind me, I've got a poster that I've had in my office for many years. It's banned in the USA. It's got a picture of Luther Campbell on it. He was in 2 Live Crew, of course. And on the poster, it has the text of the First Amendment because Luther Campbell and 2 Live Crew, in the '80s and into the '90s, often had trouble with their albums. And there was one album in particular that was – what was it? It was called As Nasty As They Wanna Be.

Erik: As Nasty As They Wanna Be.

Andrea: As Nasty As They Wanna Be.

Erik: Yeah.

Nico: Yeah, 1989, they're in Florida. I think it was 1989, right?

Erik: I thought it was maybe '90 or '91, but I'm not sure. I remember being a kid buying it with my mother.

Andrea: Late '80s, early '90s –

Erik: Yeah, okay. Yeah.

Andrea: – is usually where I always group them.

Nico: But in Florida, there were police departments that would tell record stores that they couldn't sell this album because it constituted obscenity. And there was actually a trial court that did deem it obscenity. And thankfully on appeal, it was ruled not to be obscene. Of course, obscenity is excluded from First Amendment protections. What is obscenity has always been a challenge for the courts. But –

Andrea: They know it when they see, so they say.

Erik: Right. Right.

Nico: Well, in this case, I guess they thought they saw it until the appeal court –

Erik: Said otherwise.

Andrea: Right.

Erik: Right.

Nico: Yeah. And he went on to have other First Amendment issues. There was a song that he had based on "Pretty Woman" or "Oh, Pretty Woman" –

Erik: Yes.

Andrea: Yes.

Nico: – which kind of carved out or created the law around what is and is not parity and whether that gets First Amendment protections. So, in my office here, I put this poster up as kind of an homage to all the work that Luther Campbell has done –

Erik: A pioneer.

Nico: – for the First Amendment. But when we think about artistic expression and the stuff that was really challenged, we often think about obscenity. You can think about Lenny Bruce and his comedy. You can think about Luther Campbell. You can think about the many books that have been forbidden from being distributed because they were obscene in one way or another. But you two write this book, Rap On Trial, which is really about a different problem that artists have. So, what is that problem –?

Erik: Well –

Nico: – broadly speaking? I know.

Erik: Well, broadly speaking, it's that prosecutors – police and prosecutors are using one particular form of art, and that's rap music. And they're using it as evidence of a whole host of crimes, all sorts of criminal activity. This is, as we talk – we say in the book – we do mention Luther Campbell. And we do talk about how the First Amendment has really been – the First Amendment defense has been pretty ineffective when it comes to rap music. First, we see police targeting for obscenity. Now it's the true threats category that they're prosecuting for, and then often using it just to show people's involvement in, like I said, a wide range of criminal activities.

Nico: So, it's not that they hear the album and they determine that there's some sort of crime just by the nature of the words themselves, right? It's that there is some sort of other crime that's being committed, and they bring in the art as evidence.

Erik: Both.

Andrea: Yeah, I was gonna say. So, initially when we began to see these cases, it was that there had been or there was thought to have been some criminal activity committed in public and that these lyrics were then evidence that affirmed the crime had been committed. Either they were a confession, or they were evidence of the individual's intent to commit the crime, or motive, or explained how the individual committed the crime. But what we have begun to see in the last five years or so – I would say five to 10 years – is the lyrics themselves actually also constituting criminal activity.

Nico: So, threats?

Andrea: So, threats.

Erik: True threats.

Nico: Okay.

Andrea: But also, I think it's important to keep in mind Brandon Duncan and Aaron Harvey. This is what we think to be the new wave. So, these were two California men from San Diego her were prosecuted for essentially benefiting a gang through their lyrics. There was no allegation, no evidence that they had committed any criminal conduct, that they supported the gang in committing any criminal conduct.

Erik: That they were aware of in advance of any criminal activity whatsoever.

Andrea: Right. But the notion from the prosecutors was that their lyrics, which may have referenced individuals in the community, which may have referenced the gang – these were people that they grew up with, that they knew, but that they didn't necessarily associate with. But those lyrics endorsed the gang, benefitted the gang. And in turn, they also benefited from it. And so, in that case, the lyrics themselves were the criminal act.

Nico: Yeah. So, how are you finding these cases? You said, in the book, you've identified 500. It's probably pretty hard to find, as anyone who's tried to research state criminal laws –

Erik: Yeah.

Nico: – or state-based – so for litigation.

Erik: It's very hard.

Nico: So, how did you find these cases? How did this project begin?

Erik: Well, okay. The way we find them is – once we've exhausted the obvious sources, Lexis, Westlaw, legal databases, then it is often through our on-the-ground work. I've worked on 50 or 60 cases in various capacities, from just consulting to actually testifying in court. And through that work, that has then broadened our network of attorneys and other folks who let us know that this is happening. Honestly, Google alerts are pretty helpful. But the vast majority of cases are hard to identify because they're not reaching the Google alerts. They're not making it to the media, and they're not making it to Westlaw or Lexis often because there's a plea bargain, right.

And that's one of the things that we're very concerned about, is that police and prosecutors use the lyrics to compel a plea bargain. And so, we're not gonna see that case. We're not gonna be able to find that. Or it could be in a grand jury proceeding, which is generally sealed. And so, we've found five or so hundred cases, but that is only – we're certain that's a small slice of the overall number of cases in which rap lyrics are being used to put somebody away.

Andrea: Of course, the other problem we continue to have is that, even if we could identify a particular timeframe in which we're looking for cases, cases continue to happen. And so, we have to sorta periodically update our research. And so, we can do Westlaw and Lexis searches, but yet we have to come back and do them again for the newly published cases that might be in the database, and the same even for Google. We have to just sort of continually update what we have.

Nico: What are some of he emblematic kinds of cases? Or is there an individual case that really stands out to you as being emblematic of the problem?

Erik: Maybe we could each do one. The distinction to be made is that the majority of these cases are what you described and what Andrea was talking about, where the lyrics are used as evidence of a defendant's involvement in a crime, in some underlying crime. And then, there's another subset of cases where it's the lyrics themselves that are the crime, charged usually as terroristic threats, true threats.

Nico: Yeah, you said some post-9/11 laws have been used to –

Erik: Absolutely.

Nico: – justify these prosecutions.

Erik: Yeah. And I think they're of questionable constitutionality, to be honest, because they're written so broadly. But they're also not used very often, or at least they weren't being used very often at first. But I think the – an emblematic case for me – and this one had a good ending, which is rare – is a case of Vonte Skinner.

This was a guy in New Jersey who was charged with – I think it was attempted murder. Maybe it was – he didn't kill – the person he shot or was alleged to have shot didn't die, so I forget what the charge was. But there was really no evidence. The conflicting eyewitness testimony, prosecutors really didn't have anything. The facts of the case are a little hazy now. It's been awhile. But I believe, the first time around, the jury was hung.

And so, the next time around, prosecutors brought in, I think, 13 pages of his rap lyrics that they had found in the back of car. And these are lyrics that had been months or years before the crime, made no mention of the actual crime itself or any of the people involved. But because prosecutors were permitted to read those lyrics in front of a jury, I would argue that that was the difference. And they came back and sentenced him to 30 years.

Eventually, it went through the New Jersey appeal – first, it was the Superior and then the Supreme Court. And they did overturn that in a unanimous Supreme Court verdict. But that's the kinda case that we're talking about that is particularly frightening because now, if you don't even have much evidence or any real evidence, you can still convict on very serious crimes just by introducing these inflammatory lyrics to a jury.

Nico: And that's not supposed to be allowed though, right? Doesn't it prejudice the jurors in determining because these sort of character witness evidence sort of things are usually forbidden, right? You worked as a public defender, Professor Dennis.

Andrea: Right.

Nico: So, you can probably speak to this.

Andrea: Yeah. So, generally, you're correct. And in fact, the New Jersey Supreme Court ruled that it was unfairly prejudicial to admit the lyrics. So, the evidence rules generally do prohibit character propensity evidence, so this notion that if you did something before you've done it – you'll do it again. Or if you're of this particular character, that means you'll always engage in that type of conduct. So, generally, the evidence rules prohibit that.

But there's a workaround, which is if you can offer the same type of evidence, but for a non-character purpose – so for example, if you have maybe dealt drugs in the past, that might indicate you have some knowledge about drugs or how to deal drugs, right. And so, there's a workaround for this prohibition on character evidence. And so, that is often what prosecutors will do. And because the ability of the court to exclude is within their discretion, they don't have to exclude the evidence, even if they think it's unfairly prejudicial.

On balance, most courts will admit the evidence, even if there is some concern about unfair prejudice. Maybe they'll try and tell the jury, "Well, don't use it for that character-based reasoning that we prohibit. Use it for this other purpose." But once the elephant's in the room, right – choose your metaphor. Once the –

Erik: Cat's out of the bag.

Nico: The cat's out of the bag.

Erik: Jinx.

Andrea: – cat's out of the bag, right. The horse is out of the barn. But the point is, jurors have heard this evidence. And so, we have significant concerns about it being unfairly prejudicial. But the ability to exclude is within a judge’s discretion.

Nico: And there are also cases where the defense introduce character testimony. For example, there was one case in your book I remember where the defense decided to put the defendant on the stand.

Andrea: Yes.

Nico: And this defendant talked about himself and his character, and that allowed the prosecution to then introduce –

Andrea: Yes.

Erik: Yeah.

Andrea: It is rare, right, that the government is allowed to just offer character evidence. One exception is when the defendant, so-called, opens the door. So, in the case you're referencing, the defendant gets on the stand and testifies, "Well, I'm a peaceful guy. I couldn't have committed that violent crime." Then, that permits the government to rebut his character evidence. And in the instance you're talking about, the government rebutted it by offering lyrics that the defendant had written.

Erik: That case, in particular, really felt like a trap. And it opened my eyes because I'm not an attorney, and I'm not aware of these sort of nuances. But this was a case where there was surveillance footage of his – I think it was a stabbing maybe. And –

Andrea: And he claimed self-defense.

Erik: And he claimed self-defense. And so, if you're gonna claim self-defense, it seems vital that you take the stand, especially in a case like that. But in that moment, that became a trap. Because if he said, "Yeah, normally a peaceful guy," all of a sudden, they were allowed to bring in all kinds of character evidence that otherwise they would not have been able to. But then my question is, how do you mount a legitimate defense if those are the rules? That seems deeply unfair.

Andrea: Well, I think also the concern is why is there this assumption or conclusion that penned rap lyrics are evidence of a violent character.

Nico: Yeah.

Erik: Yeah.

Nico: So, let's talk a little bit about the lyrics. Often, these lyrics involve violence, drugs. But that's not necessarily unique to rap music. I grew up in a heavy metal band, and there's –

Andrea: Yes.

Nico: Some of the most popular bands involve – the names literally involve violence. I'm thinking Cannibal Corpse, for example.

Erik: Yeah, same with punk. All kinds with similar themes, yeah.

Nico: But you're not finding this sort of phenomenon happening with other music, correct?

Erik: No.

Nico: And that's why you say in the title, "Rap on trial," because it's literally this type of music that seems to be on trial.

Andrea: Correct.

Nico: What are some of the factors that go into your thinking on that? What does the research –?

Erik: As to why?

Nico: Yeah. You cite in the book a couple of studies where you've –

Erik: Yeah.

Nico: Because country music is often –

Erik: Right, very violent.

Nico: – often very violent.

Erik: Yeah.

Nico: And you cite Johnny Cash and Folsom Prison. "I shot a man just to watch him die."

Erik: Right. Well, I think that question really gets to the heart of why we wrote the book and what's going on here. There are a number, I think, of explanations. You mentioned some research that we include in the book. And the research really does show that rap tends to prime all kinds of stereotypes about young black or Hispanic men. And it's unique to rap.

So, in one study that cite, the researcher gave – separated people into two groups. Gave one group some generic lyrics, no indication about the artist or genre, and told that group that those lyrics came from a country song. Took the exact same lyrics, gave them to the other group, and said these came from a rap song – same lyrics, no indication of genre, and then got the results back. And what she found was that the people who believed that the music came from rap were significantly more likely to think of it as threatening, in need of regulation.

That study was conducted 20 years ago, but it's been replicated recently with the same results. And what a lot of these researchers and what we see is that there's something very – the racial dimension of this is front and center. That's, in my mind, what's going on here, and people's inability to understand the conventions but even to understand these young men as artists in first place.

Nico: Yeah, in the book, you have this great line. You say, "This isn't a First Amendment issue with a racial component. This is a racial issue with a First Amendment component," right.

Erik: Right.

Andrea: Right. And so, I think by building upon the studies that Erik was describing, let's not forget, right, that criminal justice is significantly focused on hyper-policing of black and Latino communities. And so, if your target population, right, is black and Latino, what you're going to look for is evidence that supports your stories you wanna tell about criminality, your theories of criminality, right, your evidence. And so, when you bring those two together, what you have is essentially a practice that is highly racialized and that amplifies an already hyper-focused criminal justice system.

Nico: Yeah. I should ask because I'm sure there are a lot of listeners out there who are wondering, well, can these sort of lyrics tell us anything about a defendant? Is there no situation in which we think it's valid to introduce them into a case? I know, in the book, you talk about probative value and prejudicial impact, different kinds of evidence. So, you also, in the book, say that not everyone who you're talking about may be innocent.

Erik: Right.

Nico: So, how should we think about how these could be used, if they can be used at all?

Andrea: So, one thing. Let me comment on the probative value, which is essentially one of the factors to determine whether or not any piece of evidence of any sort is relevant in a case. That's a pretty low standard. The definition is basically any tendency to help establish a fact, so any tendency. Almost anything in the world –

Nico: Yeah.

Andrea: – has some tendency to establish another fact. And it may directly establish it or circumstantially, or by inference. And so, that basic relevance threshold is pretty easy to overcome. So, I think it's probably fair to say, look, if we're applying that basic relevance standard, then most pieces of evidence can overcome that standard. In fact, I tell my students, when I teach them evidence, "If you can't surpass relevance, it's because you're not thinking creatively enough about the arguments you're making."

Nico: Right.

Andrea: So –

Nico: It's like the rational basis test in other contexts.

Andrea: Yes. There you go, yes.

Erik: Exactly.

Andrea: Absolutely right. If you cannot offer some rational or reasonable basis for this legislation, then you're just not –

Nico: Working hard enough.

Andrea: You're not working hard enough. But the problem though is that, even if you overcome relevance, there are a host of rules, some of which we've touched, which would exclude evidence potentially. So, character concerns can potentially exclude evidence, evidence that is unfairly prejudicial. And so, to your question about, well, is there a particular instance in which you think the lyrics should be admitted, Erik and I have gone back and forth about this.

Nico: And you talk about it a little. At the end of the book, you offer solutions –

Erik: Right.

Nico: – and potential ways of thinking about this.

Erik: We go back and forth on it because it is sort of where you're dealing with both theory and practice. And I suppose, if you've ever seen the Key and Peele sketch that involves rap lyrics as evidence, I would say in that case maybe we admit the lyrics. I encourage your listeners to check it out on YouTube. It's hilarious.

But I guess my problem is, based on my work in the courts, and with attorneys, and with these defendants, and dealing with police – what I see is such a overwhelming misunderstanding and misrepresentation of the genre that I really don't trust our judicial system's ability to introduce lyrics, even in cases where theoretically you might think they're relevant. I don't trust them to do so responsibly and to limit what they're introducing to these outlier situations.

The reality is, in the cases I've worked on, I haven't really found any cases where people are just rapping word for – what they – actual crimes that they committed, one after the other, after the other. Obviously, rap contain – with any fictional form, they contain grains of reality. But trying to sift through that and determine what might be real and what might not be is not something that police and prosecutors, judges and juries are good at. And so, what I worry is that you open the door a little. You open it all the way. And you allow juries to make irrational decisions. And so, it's hard for me to imagine a situation where it is really useful.

The other question is, what is probative? What's probative about something – a fictional form that is told in rhymed form from the perspective of a made-up narrator that, by its conventions, emphasizes exaggeration, word play? How is that probative if it presents itself as false, as fiction? That, to me, is a challenge. And that police overcome is they just deny that. I have worked on cases where police will say or prosecutors will say rap lyrics should be understood as autobiographical confessions. That's not true, but that's how you get around the, "How is this useful?" question.

Nico: Yeah. Well, when these are present in trials, are they presented – you mentioned context before. Are they presented as rhyme? Or is it just text on – are they just simply read out?

Erik: Good question.

Andrea: It's a variety of approaches. So, sometimes, you will have just the government's agent reading the lyrics into the record, with whatever cadence, or lack of cadence, or flat affect, or whatever have you.

Nico: Yeah.

Andrea: But that would include if there's any rhyme there. Sometimes, the lyrics are given hard copy into the record, and so it's just on paper.

Erik: And often terribly transcribed, full of inaccuracies.

Nico: Yeah.

Andrea: Right.

Erik: Yeah.

Andrea: It's unclear who's transcribing them, and what their qualifications are, and the quality of the transcription. Sometimes, audio may be played in court.

Erik: Certainly videos. Those are particularly useful for prosecutors because they also help undo visual images. So, if you see the defendant sitting there in a coat and tie, if you can show anybody a picture of him with gold teeth, tattoos, and maybe even holding a gun, or smoking marijuana, that goes a long way to undoing all of his work to appear sort of respectable in that situation.

Andrea: Right. And sometimes, you'll get even the summary. Someone overheard someone supposedly rapping a line, and they'll sort of give a summary of it. Or this is a summary of a conversation.

Nico: The reason I ask that question is because I made a – I helped make a documentary called Can We Take A Joke? which is in part about Lenny Bruce and the obscenity prosecutions in the late '60s. And he fired a lot of his attorneys. He represented himself. He made a lot of mistakes. But one of the things he begged judges to do was to let him do his routines, just begged them to do it, because he could not stand hearing these prosecutors read out his jokes.

Andrea: Right.

Nico: Because often, the jokes don't land or the jokes don't make sense –

Erik: Right.

Nico: – because they have a rhyme to them, or you're not hitting the final note right. You're not hitting the punch line right. And that might've killed him as much as he overdoes.

Andrea: Right.

Nico: Just having to go through that everyday –

Andrea: Right.

Nico: – seeing his art butchered by these prosecutors.

Erik: Yeah. Oh, and it does happen. I think that there're probably imprecise analogies. But to go to your question about the probative value of it all, one of the questions I always ask is, okay, why is very difficult – I know it depends on jurisdiction. It depends on the circumstances. But it's very difficult, for example, to introduce polygraph results. Now, our national security agencies use them. So, clearly, a number of informed people have determined that they are at least fairly reliable, reliable enough to be screening our national security personnel.

But we don't allow them or it's difficult to bring stuff like that in because of the chance, the percent is not gonna be reliable. If we understand that, how in the world are you bringing in rap lyrics that are clearly exaggerated, told from a made-up perspective from an invented narrator? How do we allow that? That sounds to me like a bit of a double standard.

And we also know that sometimes, even if it's probative, we still probably shouldn't let it in. That's what rape shield is an example of because somebody's past sexual history probably is, at the very low standard, relevant. But we understand that that information should not necessarily come in because it can cause a jury to behave irrationally. How is this different?

Nico: Yeah. And juries often behave irrationally, right, despite instruction not to do so.

Andrea: Humans behave irrationally despite –

Nico: So, one of the things that I was thinking about, a hypothetical that I was thinking about in reading this book, outside the context of rap, was Alice In Wonderland, written by Lewis Carroll. Evidence suggests these days that Lewis Carroll had a relationship with a minor child named Alice. There's been discovered, I guess, a picture that he took of her nude or semi-nude.

Hey, everyone, Nice here with a quick editor's note. The photo I'm referencing in this section is not actually a photo of Alice Liddell. Rather, it's a photo of Alice's elder sister Lorina Liddell. That's not to say Lewis Carroll didn't take any weird photos with Alice either. He did. There's one of him, for example, kissing Alice Liddell. But the photo of the child in the nude or semi-nude is of Alice's elder sister, Lorina. I learned about this from a BBC documentary that was put out in 2015 called The Secret World of Lewis Carroll. So, if you're interested in learning more about Lewis Carroll, the little children, and this photographs, I recommend you go and check that documentary out.

And so, I was thinking when I was reading this book. I was like, so what would we do with Alice In Wonderland if there was a prosecution in his time because the picture was discovered or there was a relationship discovered? Would Alice In Wonderland be admitted as evidence that he had some sort of fixation on this young girl? I don't know. But I have to think maybe. I could see someone trying, but I don't see it working. I don't even think it gets passed the first judge, right. Ultimately, on appeal, I think it's even less likely to stand. We do have –

Andrea: Well, so –

Nico: – that crime fiction example. Yeah.

Andrea: Yes. But the other question we might have to ask is, is C.S. Lewis in –

Nico: Lewis Carroll.

Andrea: Is Lewis Carroll – sorry, different author.

Nico: Yeah, believe it's Lewis Carroll.

Andrea: Sorry. Sorry, C.S. Lewis.

Erik: The Chronicles of Narnia.

Nico: Yeah. Yes.

Andrea: Lewis Carroll, not C.S. Lewis.

Erik: Plenty of violence in there, too, but okay.

Nico: And unicorns.

Andrea: I apologize for that, profusely. No defamation intended. So –

Nico: No, he's dead.

Andrea: – the question is, right, is he, as the defendant, a celebrity author, a well-known author? Because one of the concerns we have –

Nico: Oh, yeah.

Erik: Yeah.

Nico: Let's get into this.

Andrea: – is that fame and celebrity is impactful here as well. So, the example we talk about in the book was actually a little bit comical. Chief Justice Roberts is – during oral arguments in a Supreme Court case – quoting Eminem essentially threatening to kill or having killed his ex-wife, and –

Erik: Who he names by name.

Andrea: Right. He specifically identifies Kim. And the solicitor, responding that, well, Eminem would not be considered to have been making a threat because he was performing that song and that lyric, and it was for entertainment value.

Nico: You also talk about a case in Pittsburgh –

Erik: Yes.

Nico: – in which some amateur artist –

Erik: Yes.

Nico: – identify police officers, but are – were found to have made true threat, right?

Andrea: Yes.

Erik: Yes.

Nico: True threat in quotation marks because it's –

Erik: Yeah, even that's murky.

Andrea: Right. Yes.

Erik: Right, Jamal Knox and Rashee Beasley. Knox was the one who took it through the Pennsylvania court system and then eventually sought cert with the Supreme Court. Didn't get it.

Nico: Yeah.

Erik: But that was – that's a really good example because, A, what you see in a lot of these cases is that the amateurs – amateur artists we're talking about are imitating far more well-known artists. So, "Fuck the Police," which was the name of Jamal Knox's song in which he identified a couple of police officers, that, of course, is –

Nico: N.W.A.

Erik: – an iconic protest song, right. And so, already, they're sort of channeling these more famous artists. But at the same time, we have examples of well-known artists who have, in their lyrics, named police officers in their community and said, "I am going to go kill that police officer." Ice Cube did it after the Rodney King beatings – or beating. I don't know. Multiple – I don't even – now it just sounds insensitive.

Andrea: Was it one beating or multiple beatings?

Erik: Yeah. Okay, but you get my point.

Nico: Yeah.

Erik: There are – Eminem with Kim, right – all sorts of examples where you could – we're seeing a double standard based upon the level of fame, success, and probably wealth of artists, and race too.

Nico: Yeah, I was gonna say. Is this a problem of just having better attorneys, or not good enough attorneys, or being able to afford robust legal representation?

Andrea: Right. Or the assumption that if you are famous and have made it, you must be really adhering to artistic conventions of adopting an alter ego and a persona. Whereas, amateur artists, they must be just depicting their real life experiences.

Erik: Yeah, police have said as much. I think we quite one from Newport News who said, "These aren't the brightest guys. It's much easier for them to just write down stuff that they did than be creative." And that is what I think the mindset frequently is, particularly among these gang police, that what they're actually watching – because they spend all day in front of the computer instead of going out in the communities. They actually start to believe that they are hearing all kinds of confessions to true crime that's happening all around them.

Andrea: So, for Lewis Carroll, I would say I don't know.

Erik: He's all right.

Andrea: Maybe they might try.

Erik: I don't think it's gonna happen.

Andrea: But we would ask for parity, right.

Nico: Right.

Andrea: We would ask for parity on the side of do not admit fictional writings against anybody.

Erik: Yeah. And I guess that's the whole thing. If you've got the picture of the naked girl, that seems good as far as – that seems good as evidence. So, what do we need his book for? Maybe look for other – actual evidence to support the idea that this guy is a pedophile or whatever he's being charged with. But bringing in fictional creations is highly problematic because the fact that he may have led a life that was somehow similar to something that occurs in his book does not seem like an adequate justification for cherry-picking examples from the book.

Andrea: Which leads to something I think is important to think about here, which is, in a case in which the government has large amounts of other evidence, the question will be, well, why do you need this fictional art form, right, to tip the balance? And so, we would suggest you err on the side of excluding the evidence. If you have significant other evidence to reach your burden, you don't need to pile on this other unreliable evidence.

Erik: And if you don't –

Andrea: And if you don't, if you have a case in which you have no evidence, or very little evidence, or questionable evidence, then it seems patently unfair to tip the balance using evidence that is highly unreliable, that inflammatory, that is unfairly prejudicial. That seems problematic.

Nico: Yeah. You shouldn't be trying the case in the first place.

Erik: At all.

Andrea: Correct.

Erik: Correct.

Nico: Yeah.

Andrea: And so, for those cases in between, we have significant concerns about the implicit bias, the stereotyping, the unreliability, the difficulty untangling truth from any semblance of reality.

Nico: Well, what might the First Amendment – you talk about this a little bit in the book – say about evidence being introduced? Does the First Amendment prohibit this sort of – I don’t know what you even call it – viewpoint? Is it? I don't know.

Andrea: You think it should say a lot.

Erik: It doesn't.

Andrea: Right now it says nothing, as interpreted.

Erik: That's why when you see these cases starting that we're working to bring these to higher levels. To bring cases to the Supreme Court, you see those center around threats cases because that's an example of where the First Amendment is obviously operating.

I think a lot of people would argue that in vast majority of cases, where you're not actually punishing the words, you're not punishing speech, right. You're allowed to introduce speech as evidence. And so, you're not directly preventing somebody from making these records. But –

Andrea: Right. And the related argument is you're punishing the underlying conduct. You're not punishing the speech.

Erik: But the chilling effect is undeniable. It is very difficult to imagine that if you are systematically prosecuting people for poetry – whether it's good poetry, bad poetry, we can all disagree. But it's poetry. If you're doing that, when are these artists going to realize that it is not okay to make this poetry?

We do have isolated examples of people who have said after they have been prosecuted, "Yeah, I still make rap, but I'm steering clear of the violent stuff." Probably a wise decision but a hugely unfortunate one, that he would have to make an artistic decision like that based upon this use of lyrics as evidence. And we're also seeing disclaimers in videos now, right. Once again, probably a smart – a savvy move, right. Everything here is a prop.

But if you think about rap music, just as the way you think about wrestling or maybe some other forms of entertainment, should they – the suspension of disbelief you want while you listen to believe in the authenticity of it – should they have to, at the beginning, say, "Totally making this all up," before they begin? I have questions about that artistically.

Nico: Sometimes, when I talk to people about free expression, they accuse me of First Amendment absolutist. They say, "Well, you wouldn't advocate that the First Amendment should apply in court rooms, that there shouldn't be any rule of evidence, that you can say whatever you want in court rooms. So, part of me is asking the question just kinda to understand where strong free expression advocates would like to go with these sorts of things. Because it seems to that if there is this sort of issue with artistic expression being introduced in court as evidence of someone's guilt that there might be an organization, like the ACLU or someone, who would bring test cases to try and prevent that from happening under – on First Amendment grounds.

Erik: Well, yeah. The ACLU has been – I've worked with the ACLU with some – I'm working with a local – the Tennessee affiliate right now. And the New Jersey affiliate has worked on the Vonte Skinner case, the case I mentioned. But the ACLU has actually been strangely – especially at the national level – has been strangely silent on it.

I think one thing you see is that a lot of First Amendment purists are really not that interested in the racial dimension of the work that they're doing. And I feel that, unfortunately, the ACLU has fallen into that trap. I think they're trying to address that. But the problem is that I think they're still caught a little flat-footed by this because they keep making the same First Amendment arguments over and over, and they don't work.

Even in the New Jersey case, yeah, he won. But he didn't win because of the ACLU's First Amendment argument. The justices just ignored that. The First Amendment, the traditional slippery slope, chilling effect, whatever the traditional arguments are don't work.

Nico: So, you would argue it like a disparate effect sort of.

Andrea: I was gonna say. Yeah, I think –

Nico: Just kinda like you've seen would be successful in civil asset forfeiture.

Andrea: Yes.

Nico: You've seen some of that work in Texas, for example, where the disparate racial effects of it –

Andrea: Yes.

Nico: – were able to strike down some of these laws.

Andrea: Well, and this is why it's important to come back to an earlier part of our conversation, that we are not finding cases involving other musical art forms which are predominated by white artists or white entertainers. So, right, the disparate impact, the disparate effect that what is happening here is that it is the First Amendment rights of a particular class of individuals that are being burdened in comparison to others.

Erik: And I would argue that we've already collected enough data to begin to make that argument because often, these disparate impact cases, it's all about – it's often about data collection.

Nico: Well, the social science research on its own is compelling to me.

Erik: Is compelling.

Nico: But, yeah, seeing the cases themselves –

Erik: But then, the numbers also, the – yeah.

Nico: Yeah.

Erik: The cases themselves, the numbers, I really do think that those are the – so that's a really good example of a strategy that I don't think the ACLU is necessarily equipped. Maybe they're equipped, but they haven't shown evidence of that. But I do think that would be a more productive avenue than the same tired, old First Amendment argument, as much I agree with it totally. It's just not working here because there's – the racial element of this is powerful.

And so, if one of these cases ever goes to the Supreme Court – when we tried with Knox – I'm afraid, right, because in some ways I think this court is good on speech, for sure. But on the other hand, when it comes to race, I'm not sure how all of these justices are gonna come down. Alito in the Elonis case in '14 –

Nico: I wanted to talk about Elonis, but that involved a white guy, right?

Erik: It involved a white guy. But what Alito said – the fact that it's a white person, I think, doesn't totally erase the racial dimension of it. Everybody understands that it's a white person who is engaging in a black or a predominantly black art form. I think that has it's own sort of issues among the white community, right. You're selling out, or you're –

Nico: Yeah, we should kind of –

Andrea: You're crossing borders.

Nico: We should maybe summarize the case quickly for our listeners.

Erik: Oh, yeah. Very quick, yeah. So, this guy – do you wanna do it, or do you want me to do it?

Andrea: You can do it.

Erik: This guy Anthony Elonis, he was getting in the middle of a divorce. He may have been divorced at the time. But he started putting things up on Facebook, sometimes threatening sounding language. Now, he didn't tag his ex-wife. He didn't sort of actually – he didn't, yeah, tag her. So, he wasn't intending for her to necessarily see it. But it was public, so she could.

And he was saying threatening things, but he was often couching those threatening things in the form of rap lyrics, specifically Eminem lyrics. And he was including in some of these posts – a lot of these posts all the standard caveats that you'd expect. "I'm pushing the limits of free speech. I'm doing this." So, he was invoking all of that. When he was doing it involving his – when he was targeting his wife this or at least mentioning his wife with this, nothing.

But when he – when the FBI intervened, and then he started going after a police officer, an FBI agent, then they took him to court. And they charged him with making threats. And he was incarcerated. Yeah, he was found guilty and incarcerated. And then, that case ultimately went to the Supreme Court because, as it turns out, true threats is a totally messy area –

Nico: Yeah, you talk about this in the book. Yeah.

Erik: – of First Amendment jurisprudence. And even now, because the Supreme Court rulings only apply to the federal courts, some courts say, yeah, if a reasonable person perceives it as a threat, it counts. If others say you have to have intent – and so, that's what this case was all about. And so, the Supreme Court did ultimately rule – and I think in a rational way but not a First Amendment way, yet my point again.

Andrea: Right. So, just to be clear –

Erik: Yeah.

Andrea: – not a First Amendment way because they were interpreting –

Erik: A statute.

Andrea: – the federal threat statute, and so what it meant to issue a threat to another individual and how you evaluate that.

Erik: Yeah.

Nico: So, they didn't strike down that statute on First Amendment grounds, which –

Andrea: Correct.

Erik: No.

Andrea: They completely – they avoided the First Amendment issue, which is what courts will do if they have –

Nico: And the case was tried using the federal threat statute. It wasn't a state?

Erik: It was federal.

Andrea: It was federal.

Erik: It was federal.

Nico: Gotcha.

Erik: Yeah, it was federal because – probably because he used the internet.

Nico: They punted essentially and said they interpreted wrong.

Erik: Yes. That is –

Andrea: Correct.

Erik: You interpreted the statute incorrectly. But the oral arguments in that case were somewhat revealing because what you saw on the one hand was somebody like Justice Roberts who had a – I thought, a very good grasp of the issues, and surprisingly, right.

Nico: Yeah. He quoted Bonnie and Clyde or something. Yeah.

Andrea: Yes, Bonnie and Clyde.

Erik: Yeah, he did.

Andrea: He did, yes.

Erik: But you also could hear the Alito-type criticism that I wonder does that extend to the Gorsuches, and the Kavanaughs, and whatever, where he was like, "Is this speech or art even worth protecting in the first place." And he didn't couch it in racial terms. I worry about, if this goes up, which side of that wins. Are they actually speech purists, especially if you're targeting a police officer. I don't know how this court goes. But I'm worried.

Nico: You might get Gorsuch on it, I think. But –

Erik: Right.

Andrea: So, one of the things we have tried to do is educate attorneys who have approached about their cases, that they should at least raise the First Amendment issue. I think probably there have been long a tendency not to raise a First Amendment issue because the law seems pretty clearly settled that the First Amendment doesn't prevent the use of lyrics as evidence, at least as the First Amendment is now interpreted. And so, we've had to encourage attorneys to at least raise that argument so that we can at least begin to make the inroads to raise the issue.

There was case that we don't talk about in the book. It's a Mississippi case, a high school named Taylor Bell, who was an aspiring rap artist, was working a lot on his own to develop his craft and to record lyrics. And he's on a winter break, and he records a song allegedly threatening some teachers at the school because some of his female classmates had told him that some teachers and coaches had been sexually harassing the girls, and he was quite upset about it and the fact that the administration wasn't doing anything about this. And so, he wrote a song in his own time, using his own resources.

Erik: Never performed it at school.

Andrea: Never performed it at school. He published it to the internet, but –

Nico: Like SoundCloud or something, yeah

Erik: Yeah, it was YouTube.

Andrea: Yes, but did not direct it at the school or anything. They eventually go back to school off of their winter break. Actually, I think it was a – might've been even a snow break, oddly enough. And somehow, one of the teachers or coaches who had been the subject of the song hears about this and then brings it to the administration. So, there haven't been any disruption to the school setting. None of the kids were saying anything or doing anything.

But ultimately, he's suspended for the remainder of the semester and has to go to alternative school on the basis of these lyrics allegedly being threatening. And he pursued it through the administrative level and then through the federal courts. He almost prevailed. He had a ruling from – I guess they're the Fifth Circuit, right – in his favor. But on bonk, they reconsidered –

Nico: Oh.

Andrea: – and reversed. But that was a good case, a good opportunity –

Erik: Yes.

Andrea: – for the Supreme Court. They did petition the Supreme Court, which refused to take the case. But that was a good opportunity to consider both schoolhouse issues in terms of First Amendment, but also this rap lyrics.

Erik: That worries me because since Tinker –

Andrea: Yes.

Erik: – hasn't gone very well for us.

Andrea: Well – so, yeah. So, on the one hand, we're thinking this an ideal case, right. It seems right. But on the other hand, I teach juvenile law, so I don't want bad –

Nico: Yeah.

Andrea: I don't want bad schoolhouse decisions. But that was the kind of case that really could've presented it.

Erik: I absolutely agree. It was clearly intended to address a real problem. It's political speech. That was what was infuriating about the Jamal Knox case, that Pennsylvania – the Pittsburgh case that we mentioned, that true threats case, was the Pennsylvania Supreme courts finding that there was no social or political commentary in it. And I'm thinking, it's called "Fuck the Police." It is channeling the most iconic protest song in rap music or certainly one of them.

Nico: Yeah.

Erik: How is there not social or political commentary there? And then, you listen to the lyrics, and there very clearly is. You're harassing our communities. And I know they went on to –

Nico: Especially when you look at the "Bong Hits 4 Jesus" case in which the court tried to bend over backwards –

Andrea: Yes.

Nico: – to find some sorta commentary there. And the only reason they didn't find it is because the person who made the sign essentially said, "I had no" –

Andrea: Right, yeah.

Erik: Yeah. Yeah. But –

Andrea: Just being a stupid teenage boy, right.

Nico: Yeah.

Erik: I'm sure they had to do that because they understand that political speech should be protected – particularly protected. And so, you negate all of that if you just say there isn't any social or political commentary. But that was an absolutely absurd thing to say. It doesn't even seem – it doesn't seem – it seems disingenuous.

Andrea: Right. Well, I can't even decide though if Bell is slightly worse because, throughout his administrative appeals and maybe even into the lower court decisions, they recognize that Bell had, right, through his lyrics, right, expressed social commentary and political discord. And they said, "Oh, but it was threatening and this a schoolhouse." So, they both recognize that this was a potentially serious concern about sexual harassment and assault of high school girls. And he's commenting about it and trying to attract attention, but we'll put that to the side.

Nico: Yeah.

Andrea: So, I don't know which is worse, either outright denial or –

Nico: Yeah.

Andrea: – we recognize it –

Erik: But too bad.

Andrea: – but we're not gonna do anything.

Erik: Yeah, that's fair.

Nico: So, we're at about 45 minutes now. I wanna talk solutions. You kind of tipped your hat to one there, which is, the lawyers who are trying these cases – who are working on these cases, I should say – they need to know what issues to present. Are there certain issues that they should present? What are some of the other solutions? And in particular, I ask you because you have a whole chapter here at the end of the book. You've written about this before.

Andrea: Right. So, I do think what we're pretty proud of trying to do is address solutions to a variety of different individuals, to citizens, to judges, to lawyers, and to legislators. And I think [inaudible] [00:46:38] of this being a first amendment podcast, one of the recommendations we have is for a – an expressive speech privilege that would be embedded in the evidence rules.

So, as we talked about, there are all sorts of policy reasons why there might be a particular type of evidence that is relevant, but we otherwise exclude because we think there's a particular danger of because we wanna advance some social policy. And here, we would say, right, we think that lyrics should not at all be admissible, even if they are technically relevant or survive other evidence rule scrutiny, because of social policy, which is the protection of free speech, which is not chilling speech.

And so, there are other circumstances in the evidence rules where we also make that kind of a social policy choice. So, we protect attorney-client communications. We protect therapist-patient communication.

Nico: Yeah.

Andrea: We protect spousal communications.

Nico: Was this the thing in your chapter where you talked about how this would require bringing an expert witness to – witnesses to determine what actually constitutes rap lyrics and not some other sorta just lines on a page?

Andrea: Well, so that's also another concern we have, which is that judges should be quite careful in their scrutiny of what experts are permitted to testify about lyrics, if any. Right now, what's happening is you just have regular law enforcement officers with some additional training that is of questionable value being deemed experts –

Nico: Yeah.

Andrea: – and permitted to opine on the lyrics. And so, we think –

Erik: In farcical fashion, many cases.

Andrea: Right.

Erik: I mean, demonstrably wrong. I worked on a case once where they pulled a picture off this guy's phone. And they saw the pictures, and they identified someone in the picture as a gang member. It was actually The Notorious B.I.G. standing next to another rapper, Craig Mack. That's the level of – there's no clue.

Nico: Yeah.

Erik: There's zero clue. And so, expertise is a problem.

Nico: I'm even worried about that because art often pushes limits. And art is often not recognized as art when it's first introduced, even though it might later be seen as revolutionary. I'm thinking of just a painting of a Campbell Soup can, for example.

Andrea: Right.

Nico: It's like when that's first introduced, if you were trying to determine whether that was expressive, I don't know – not that there was any controversy surrounding it outside of the art community. But –

Erik: Yeah.

Andrea: Yeah. But we do think judges should do a much better job of demanding rigorous credentials for so-called experts. We think, obviously – we think Erik has those rigorous credentials. So, that would be another proposal. And this one would be focused on judges.

Nico: What about jurors?

Andrea: Jurors, you go. You take the juror.

Erik: That gets into jury nullification, the idea that if you're –

Nico: You're sounding very libertarian, Professor Nielson.

Erik: To my understanding, again, as a non-lawyer, non-law professor, you are – jury nullification, it has been found to be – it is permitted. And –

Nico: You just can't talk about it, right.

Andrea: It's not authorized.

Erik: You can't talk about it.

Andrea: It's not endorsed. But it is –

Nico: You can't talk about it, but if you do it without mentioning it, yes.

Erik: Yes, you can. And you see it. It's not uncommon. That's one of the reasons why marijuana legislation has changed so dramatically, is that people on juries just decided that, yes, I know it's against the law. But, no, I'm not gonna vote to convict. And so, people don't bring those cases.

Nico: Well, our free speech culture was essentially created here in America through jury nullification, the John Peter Zenger case in which – clearly – Zenger was clearly guilty of seditious libel. But they just said this is a bullshit law, so we're not gonna convict.

Erik: Yeah. And now that Louisiana has finally come correct – I guess we still have Oregon. But basically, you need a unanimous jury verdict to convict somebody. And what that does is places a lot of power in the hands of one individual juror.

And so, if this book reaches one person who gets on a jury and sees the prosecution using rap lyrics as evidence, we suggest that – if they are so inclined – that they consider maybe just not considering that evidence in their decision. Or if you're really serious about it, just acquit because the prosecution brought that in. That's a very personal decision because a lot of these are very serious crimes. And again, we're not asserting the innocence of these folks.

Nico: You're never gonna get on a jury.

Erik: That's kinda the idea. That's true. But that is one of the thing – it's one of those moments where, in a big legal system that's Byzantine, that is expensive, that is difficult, that is inaccessible, that's one concrete example of where individuals wield a lot of power. And so, this is one place where we think that they could in fact wield it with real success.

Nico: Yeah. And I think a lot of people, when they think about these crimes and allegations – they're just bias from the get-go because the crimes are so horrendous, and everyone wants justice. But the system is very libertarian in the sense that it does everything it can to get to the facts of the matter. It excludes evidence for good reasons. You need to have a unanimous jury to convict. So, it's important to consider what this – these sort of lyrics being introduced might do to prejudice a jury or to bias a jury.

As we've seen with the social science research, people can't help or don't care to help draw certain conclusions about people who work on – work in the rap industry, or write these lyrics, or even interested in it. Because you've seen cases, right – you talk about some cases in the book of people just listening to the music being prejudicial in any given case, right?

Andrea: Right, yes.

Erik: Yeah. And it's surprising that, in many of these cases, prosecutors aren't even asked to and don't establish even authorship, right. So, in a lot of cases, they don't do the hard work of even showing that it's this guy's voice and that he penned those lyrics. Because what if his friend wrote the lyrics, which is – that's how many songs are written. They're either ghost written or written by somebody else, which should complicate things if he didn't write. But they're not even doing that basic ground work.

Andrea: And even if they do, they're willing to accept that association with the artist. So, if you –

Erik: As endorsement or something.

Andrea: Right. If you're in the video with the artist, of if you are not the author of the lyrics, but you actually perform the lyrics, then, right, you have now endorsed the content of the lyrics. You have accepted those words as your own.

Erik: Imagine applying that to Hollywood.

Nico: Oh, geez. Yeah. Well, I'm gonna leave it – this is fascinating stuff. And I've been doing this podcast for three and a half years. I've been working in the First Amendment space for many years beyond that. And I had passing knowledge of this issue, especially when Elonis came up to the Supreme Court.

I thank you both for writing this book, for bringing this to my attention. And hopefully through this podcast, we can bring to other First Amendment attorneys' attention. And hopefully, we can get some good defenses and some of these issues presented in court, and hopefully some of this evidence being prevented from being introduced in some of these cases.

So, Professor Erik Nielson, thanks for coming here.

Erik: Thank you.

Nico: Professor Andrea Dennis, thanks for –

Andrea: Thank you.

Nico: – coming from – up from Georgia and being here today.

Andrea: Yes. Yes.

Nico: The book, again, is Rap on Trial: Race, Lyrics, and Guilt in America. This podcast is hosted, produced, and recorded me, Nico Perrino, and edited by Aaron Reese. To learn more about So To Speak, you can follow us on Twitter at twitter.com/freespeechtalk or like us on Facebook at facebook.com/sotospeakpodcast. We take email feedback at sotospeak@thefire.org. We also take questions for future shows if you have one at 215-315-0100. Again, every episode, I ask you to review us on Apple Podcast or Google Play. They help us attract new listeners to the show. And until next time, I thank you all again for listening.