Spread throughout the 88-page indictment, among accusations of felony drug possession with intent to sell, armed robbery and murder, are details from Young Thug and Gunna’s music videos and lyrics cited as evidence of their alleged guilt and association with the Bloods-affiliated gang Young Slime Life, or YSL.
“It is intensely problematic that the state relies on song lyrics as part of its allegations. These lyrics are an artist’s creative expression and not a literal recounting of facts and circumstances,” read a motion filed Thursday by Kitchens’s lawyers arguing for his release on bond. “Under the state’s theory, any artist with a song referencing violence could find herself the victim of a RICO indictment.”
Using rappers’ own music against them in a court of law is an increasingly common prosecutorial tactic that critics say steps on First Amendment protections and smacks of racial stereotyping within the criminal justice system.
“The same thing you’re being praised for, you’re being punished for,” said A.D. Carson, a rapper and academic.
Three of Young Thug’s albums have reached No. 1 on the Billboard 200 chart. Gunna has had two. Their latest collaboration, “Pushin P,” spurred viral memes and landed in the top 10 of Billboard’s Hot 100 list. Gunna has been nominated for two Grammys and Young Thug for four; Thug took home the trophy in 2019 for song of the year, awarded to songwriters, for his work on Childish Gambino’s “This is America.” Three years later, his rhymes have helped land him in jail.
The indictment highlights Young Thug lyrics such as “I killed his man in front of his momma,” “ready for war like I’m Russia” and “cooking white brick,” among others, as “overt evidence of conspiracy.”
At a news conference earlier this week, Fulton County District Attorney Fani Willis said that the First Amendment is “one of our most precious rights,” but then added that it didn’t apply in this case. “The First Amendment does not protect people from prosecutors using it as evidence if it is such.”
That argument should set off alarm bells, according to civil rights attorney Timothy Welbeck.
“We don’t criminalize other forms of art,” said Welbeck, director of the Center for Anti-Racism Research and an assistant professor at Temple University.
Art has a degree of First Amendment protection, meaning artists should not be punished by the government for the art they produce. In the case of Young Thug, the prosecutors are arguing that the rapper’s lyrics prove his involvement in criminal activity and therefore are not protected as pure artistic expression.
But what’s disconcerting about the case, Welbeck said, is that the lyrics cited in the indictment are overly general and “not necessarily admission of criminal wrongdoing.” While fans and critics might assume rappers are actually living the life they rap about, the court of public opinion is not a court of law.
“When we’re talking about the court of law there is a different standard in place,” said Welbeck, who described parts of the indictment as “lazy in some of their presumptions.” “The state has a constitutional requirement to meet their burden of proof if they want to deprive someone of their life and liberty. They can’t solely rely on rap lyrics,” he added.
Carson, an assistant professor of hip-hop and the Global South in the department of music at the University of Virginia, argued that “rap has become a really convenient shortcut” for police work.
The problem, Carson and Welbeck said, is how rap itself is perceived.
“It’s this notion we have that rap and rappers are especially deviant and especially violent,” Carson said.
“You’re using a genre created by Black people and alleging that these young Black men have a propensity to commit crime because of their link to Black art,” Welbeck said.
The genre has been targeted and blamed for societal ills since its inception. When large fights broke out in California on a stop for Run-DMC’s 1986 “Raising Hell” tour, Tipper Gore, who would become known for her campaign against “gangster rap,” said “angry, disillusioned, unloved kids unite behind heavy metal and rap music, and the music says it’s okay to beat people.”
In 1992, rapper Ice T’s heavy metal record “Cop Killer,” which highlighted police brutality, incited a culture war. At Snoop Dogg’s 1993 trial for murder (for which he was acquitted), the district attorney used a play on words from Snoop’s song “Murder Was the Case” during closing arguments in an effort to prove the rapper’s guilt.
The question of whether art imitates life or life imitates art is an endless philosophical loop that will be debated ad infinitum. But to counteract the legal shift, hip-hop’s biggest stars are increasingly using their influence outside of the arena to change both public perception and policy.
In November, New York state Sens. Brad Hoylman and Jamaal Bailey (D) introduced legislation dubbed Rap Music on Trial that, according to a joint news release, would ban “the use of art created by a defendant as evidence against them in a courtroom” to protect artists from “having their lyrics wielded against them by prosecutors.”
The lawmakers pointed to the 2019 case of Brooklyn rapper Daniel Hernandez, who performs under the stage name 6ix9ine, as an example. Hernandez boasted about his alleged gang affiliations in his songs, particularly in the hit record “Gummo.” With the potential of decades in prison if he were convicted on firearms and racketeering charges that the prosecution claimed were supported by his lyrics and brazen behavior on social media, Hernandez became a key government witness against members of the very gang with which he once publicly aligned himself.
Jay-Z, Meek Mill, Big Sean, Killer Mike and other marquee names in the music business signed their names to a January letter encouraging New York state to sign the bill into law.
“Rather than acknowledge rap music as a form of artistic expression, police and prosecutors argue that the lyrics should be interpreted literally — in the words of one prosecutor, as ‘autobiographical journals,’” read the letter co-written by Jay-Z’s lawyer, Alex Spiro, and Erik Nielson, co-author of the book “Rap on Trial.”
The letter emphasizes rap’s artistry as “rooted in a long tradition of storytelling that privileges figurative language,” hyperbole and poetry.
The New York letter was preceded by an amicus brief submitted to the Supreme Court by rappers Killer Mike, Meek Mill and Chance the Rapper in 2019. The brief was filed in support of Pennsylvania rapper Jamal Knox, known as Mayhem Mal. The industry influencers urged the court to consider Knox’s appeal after he was convicted of threatening two police officers in his song, “F— the Police.”
That same year, Los Angeles rapper Drakeo the Ruler was charged with conspiracy for a murder for which he had already been acquitted. As in the Young Thug case, California prosecutors used Drakeo’s music in an attempt to prove he was the leader of a gang — not a rap group. While awaiting trial, he recorded an album from jail, “Thank You for Using GTL,” before eventually accepting a plea deal and pleading guilty to a lesser charge. In a review of the album, Washington Post pop music critic Chris Richard wondered: “What makes it so difficult for so many to grasp the idea of rap as fiction? … We didn’t make Johnny Cash stand trial for shooting the man in Reno … We seem to understand the difference between a person and a persona just fine — but not when the artist is black?”
That distinction between person and persona is what’s at the core of these legal cases: Are lyrics poetry or an admission of criminal activity?
The biggest fight, Welbeck said, is the monumental task of divorcing Blackness from criminality.
“As long as we use ‘hip-hop’ and ‘urban’ and ‘Black’ as euphemisms for crime, we’re going to have issues like this.”
