California Gov. Gavin Newsom on Friday (Sept. 30) signed into law a first-in-the-nation statute that aims to restrict when prosecutors can cite rap lyrics as criminal evidence against the artists who wrote them.
The new law’s enactment came amid increasing focus on the tactic, which critics say can sway juries by playing to racial bias. Young Thug and Gunna, two of rap’s top young talents, are currently in jail in Georgia awaiting trial on an indictment that heavily quoted from their lyrics.
California’s new law, labeled the Decriminalizing Artistic Expression Act, will effectively ban such lyrics from the courtroom unless prosecutors can show that they are directly relevant to the facts of the case and won’t “inject racial bias into the proceedings,” among other hurdles to using them.
“Artists of all kinds should be able to create without the fear of unfair and prejudicial prosecution,” Newsom said in a statement. “California’s culture and entertainment industry set trends around the world and it’s fitting that our state is taking a nation-leading role to protect creative expression and ensure that artists are not criminalized under biased policies.”
In his own statement to Billboard, the new law’s author Assemblymember Reggie Jones-Sawyer celebrated California becoming the “first in the nation” to pass such legislation, and thanked artists like Killer Mike and Meek Mill for supporting his efforts.
“I am an advocate for fairness under the law and saw that young Black and Latino artists were systematically targeted by prosecutors who sought to unfairly skew the image of an artist in a negative and racial light to taint a jury’s perspective,” Jones-Sawyer said. “It is clear that there was a need for protective measures to allow for scrutiny of relevance, especially for rap artists.”
California’s new law will only cover cases in that state, meaning it won’t be of any help to Young Thug and Gunna. Lawmakers in New York came close to passing similar legislation earlier this year and have vowed to try again next session. Democrats have also introduced a federal version in the U.S. House of Representatives, though it appears far less likely to pass than the state bills.
Following Friday’s signing, the new law quickly drew praise from the music industry, which had pushed for its enactment in recent months.
“Today we celebrate an important victory for music creators in the state of California,” said Recording Academy CEO Harvey Mason jr. “Silencing any genre or form of artistic expression is a violation against all music people. The history that’s been made in California today will help pave the way forward in the fight to protect creative freedom nationwide.”
Mitch Glazier, the chairman and CEO of the Recording Industry Association of America, offered similar praise: “All too often rap and hip-hop artists have suffered for the same kind of hyperbole and imagery other genres routinely use without consequence. With the signing of the California rap lyrics bill into law, voices that may have been stifled are now fully open to expression.”
Warner Music Group, home to outspoken advocate Kevin Liles, lauded California lawmakers for taking action: “For far too long, particularly in the rap and hip hop communities, we have seen the widespread prosecutorial tactic of using lyrics and artistry as evidence of criminal conduct.”
Prosecutors have used rap lyrics for decades to win convictions against the people who wrote them, and critics have long called the tactic unfair. They say it denies defendants – innocent or guilty – their right to a fair trial, swaying juries by playing to racial bias while offering little real insight on actual crimes. But courts around the country have largely upheld the practice, leading to the push for legislative change.
In technical terms, the new California law will create a so-called presumption against the use of any creative expression as evidence – meaning not an outright ban, but a hurdle for prosecutors to overcome. The law will require courts to hold that such evidence offers “minimal” value unless the state can show that the expression was created near in time to the crime; bears a level of similarity to the crime; or includes “factual details” about the crime are not otherwise publicly available.
That type of presumption was also the centerpiece of New York’s failed legislation, but the new California law goes even further, like an express requirement that judges consider whether such evidence will “inject racial bias into the proceedings.” It also notably requires that courts consider testimony on the particular genre of expression being cited by prosecutors – a nod to the fact that experts say hip-hop’s unique conventions are often weaponized when lyrics are cited in court.
The law will also require courts to admit testimony about “experimental or social science research” showing that a particular genre “introduces racial bias into the proceedings.” Multiple empirical studies have shown that jurors view hip-hop lyrics as more dangerous than those from other genres, even when they cover the exact same words.