Can Rap Lyrics Lead to Incarceration?

Who would’ve thought that listening to lyrics could lead to incarceration? Is it possible that song lyrics could be deemed as a party admission in a court of law? Where does the line between the first amendment’s freedom of speech and one’s fifth amendment right not to incriminate one’s self collide?  This is an issue that we are dealing with in different counties in the State of Michigan.

The phenomenon of listening to rap lyrics to cause one to be arrested is an issue that has gained momentum over the past three years. In Wayne County, Michigan, where many aspiring rappers reside, the issue has become one of considerable controversy. Today, we will discuss the issue both nationally and in the Metro-Detroit, Michigan area.

“The National Issue”

This is an issue that caught national attention when Mayhem Mal’s song, titled “F*** the Police,” drew the eye of prosecutors. The song contains some rather detailed descriptions of how he and his friends would fight and kill cops. The song names two officers that were expected to testify against Mayhem Mal and a co-defendant, stemming from their arrest on gun and drug charges. In what is not surprising, Mayhem Mal faced additional criminal charges due to his song and was convicted. On appeal, the conviction was upheld, which prompted a call to the Supreme Court.

There was an outcry in the music industry. Different rappers stepped up to defend Mayhem Mal in an amicus brief (a friend of the court brief), which included the support of such noted artists as Chance the Rapper, Killer Mike, Fat Joe, 21 Savage, and others, the Supreme Court refused to take up the case. The theory of the brief is that no reasonable person would view the song lyrics as a legitimate threat.

        “Is this an issue of racism?”

 It appears that rap lyrics are the ones that are being targeted. We don’t see police or opposing counsels listening to county and western songs or alternative music and bringing additional charges. It does appear that young black rappers that write lyrics that can be misinterpreted are the targets of this type of prosecutions. We are not finding a lot of white kids being charged more severely over song lyrics.

 “The True Threats Doctrine”

 Whenever words are brought into the courtroom that leads to prosecutions, we see a grave concern. The First Amendment provides freedom of speech for those that are speaking or writing.  The True Threats Doctrine leads us to a debate over which speak is protected and which is not.

A true threat is a threatening communication that can be prosecuted under the law. It is distinct from a risk that is made in jest. The U.S. Supreme Court has held that true threats are not protected under the U.S. Constitution based on three justifications: preventing fear, preventing the disruption that follows from that fear, and diminishing the likelihood that the threatened violence will occur. There is some concern that even satirical speech could be regarded as a “true threat” due to worries over terrorism.

Our courts have not been consistent with the determination of which speech is protected and which is deemed a true threat. In Michigan, the risk of false terrorism is considered a 2 year felony, and this has created recent issues across our state.

“The Detroit Issue”

 In Detroit, there is a growing trend of prosecutions being strengthened due to rap lyrics.  Prosecutors scour Facebook pages and listen to rap lyrics to determine the accountability of criminal defendants. The issue that we are left to debate is whether or not this issue takes profiling to a new level. Should a rap lyric lead to one’s freedom being compromised, or is this a situation where the government is taking things too far?

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