Bill Would Bar Use of Lyrics in Court Proceedings

WASHINGTON — A pair of Democratic congressmen are seeking to protect recording artists from the use of their lyrics as evidence against them in criminal and civil proceedings.

On Wednesday, Reps. Hank Johnson, D-Ga., and Jamaal Bowman, D-N.Y., introduced the Restoring Artistic Protection Act, which would add a presumption to the Federal Rules of Evidence limiting the admissibility of an artist’s creative or artistic expression.

In a release announcing the filing of the legislation, Johnson and Bowman said it’s the first bill of its kind at the federal level.

They also said that they are addressing a growing problem for the recording industry. Since 2020, they note, prosecutors in over 500 criminal cases have used artists’ lyrics as evidence against them.

“Freedom of speech is the constitutional foundation the framers thought necessary to enable a new and free society to craft not only its own destiny through commerce and innovations, but through culture, expression, and art,” said Johnson in a written statement

“It is no longer enough that the Bill of Rights guarantees that freedom: Without further congressional action, the freedom of speech and of artistic expression present in music will continue to be stifled, and that expression will be chilled, until the voices behind that protected speech are silenced,” he said.

Both congressmen cite the 2021 case Bey-Cousin v. Powell, which was heard in the federal court in Philadelphia, to illustrate the kind of situation they are trying to address.

On the night of March 28, 2016, two Philadelphia police officers responded to a call for backup from a fellow officer and ultimately arrested Muadhdhin Bey-Cousin, a budding hip-hop artist, on a charge of being a felon in possession of a firearm.

Bey-Cousin was ultimately convicted and remained incarcerated until December 2018, when the 3rd U.S. Circuit Court of Appeals vacated his sentence.

He then sued the officers who arrested him, Ernest Powell and Phillip Cherry, for malicious prosecution and malicious use and abuse of process. He claimed the officers planted a gun on him on the night of his arrest.

As the case proceeded, Powell and Cherry sought to introduce Bey-Cousin’s debut album, “Busted by Da Fedz Vol. 1,” as evidence against him.

The officers asserted the songs describe the facts at issue and suggest that the court permit them to cross-examine Bey-Cousin about the lyrics.

But in this case, U.S. District Judge Joshua Wolson declined to grant their request.

“Freddy Mercury [sic] did not confess to having ‘just killed a man’ by putting ‘a gun against his head’ and ’pulling the trigger,’” he wrote in his decision on the motion. “Bob Marley did not confess to having shot a sheriff. And Johnny Cash did not confess to shooting ‘a man in Reno, just to watch him die.’

“In a society that treasures First Amendment expression, courts should start with a presumption that art is art, not a statement of fact,” Wolson continued. “To rebut that presumption, the party offering the evidence must demonstrate that the art is the artist’s attempt to tell a factual story.

“The mere fact that an artistic expression resembles reality is not enough because holding otherwise would risk chilling the free expression that our society holds dear,” he said. 

“As a society, we have decided to encourage free expression in all its forms. The court will not adopt a rule that might undermine that goal. It therefore adopts a rule that presumes that artists tell stories, even when they draw inspiration from reality,” Wolson said.

Bey-Cousin was lucky, but others haven’t been as fortunate, Bowman said.

He cited the case of Tommy Munsdwell Canady, a 17-year-old from Wisconsin, who is currently serving a life sentence for murder after a conviction that relied heavily upon lyrics he wrote. 

“I was deeply moved to hear that Mr. Canady continues to pursue his art in the face of our carceral systems that would otherwise stifle Black art,” Bowman said.

“Rap, hip-hop and every lyrical musical piece is a beautiful form of art and expression that must be protected,” he said. “[Yet] our judicial system disparately criminalizes Black and Brown lives, including Black and Brown creativity. 

“Evidence shows when juries believe lyrics to be rap lyrics, there’s a tendency to presume it’s a confession, whereas lyrics for other genres of music are understood to be art, not factual reporting,” Bowman continued. “This act would ensure that our evidentiary standards protect the First Amendment right to freedom of expression. We cannot imprison our talented artists for expressing their experiences nor will we let their creativity be suppressed.”

Not surprisingly, a number of entertainment industry entities have thrown their support behind the bill.

These include the Recording Academy, Recording Industry Association of America, Universal Music Group, Sony Music Group, Warner Records, Atlantic Records, Warner Music Nashville, Artists Rights Alliance, SAG-AFTRA, the Black Music Action Coalition, the Music Artists Coalition, Songwriters of North America, 300 Elektra Entertainment, Warner Chappell Music, Warner Music Group, Warner Music Latina.

The text of the bill can be found here. 

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