Lyrics on Trial: A Closer Look into California’s Legislation
This post is featured on Music Ecosystem Institute
Sarah Gilbert — MEI Fellow
In the first post in our series on the various RAP Acts around the United States, we analyzed Louisiana’s version which recently was enacted. In this post, we analyze California’s version, which was actually enacted first.
In September 2022, Governor Gavin Newsom signed California Assembly Bill 2799, Jones-Sawyer “Evidence: admissibility of creative expressions,” which had passed both the California State Senate and General Assembly unanimously. Similar to the context of other RAP Acts around the country, California’s law was introduced as a response to perceived improper use of rappers’ lyrics in criminal prosecutions. The California bill expressly recites this fact and includes citations to “a substantial body of research shows a significant risk of unfair prejudice when rap lyrics are introduced into evidence.”*
California’s situation was especially acute because of the development of “gangsta rap” there, with its graphic and arguably misogynistic depictions of violent gang life on the streets. This subgenre of rap likely arose in Los Angeles because it was the epicenter of one of the most notorious street gang rivalries of the late twentieth century.
Although L.A. had gangs from as early as the 1920’s, the “Crips” emerged as one of the most powerful and notorious in the 1950’s. In the early 1970’s, rival gang the “Bloods” was created in response to the violence of the “Crips.” The two gangs have been known for their complicated and violent rivalry. At the same time, rap music—which had originally started in the Bronx—had found its way across the country to the streets of Los Angeles, the home of the recording industry.
By the 1980’s, L.A. was deemed the murder capital of the U.S. At the same time, its rap scene developed a distinct style, soon dubbed “gangsta rap” due its focus on the violence so prevalent in the city. In its early form, gangsta rap highlighted the social, political, and economic predicaments of minorities in the city as mass incarceration rates rose and the L.A. Police Department (LAPD) appeared to engage in unprecedented brutality against minorities.
Some of the most notable raps to come out of this time of cultural resistance were those of N.W.A. on its legendary album “Straight Outta Compton.” “Fuck tha Police” in particular was a scathing critique of the FBI and the LAPD. The FBI’s assistant director Milt Ahlerich was so displeased with N.W.A ‘s lyrics that he sent a personal letter to N.W.A’s label, Ruthless Records, in an attempt to disrupt the distribution of the album. Rappers—and specifically rappers who had been classified as “gangsta rappers”—were then heavily targeted by the police.
Researchers from the University of California, Irvine and University of Richmond note that California is considered “ground zero for prosecuting rap.” The prosecutorial training materials within the state encouraged the use of rap lyrics as evidence in order to highlight the “defendant’s true personality” when prosecuting gang cases.
California’s version of the RAP Act adds Section 352.2 to the State’s Evidence Code which affords “creative expression” extra protection. The provision defines creative expressions as “expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, including, but not limited to, music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.”
For those familiar with the Federal Rules of Evidence (FRE), California’s Section 352.2 essentially expands on the analysis of FRE 403, which allows for a court to exclude relevant evidence if the probative value is substantially outweighed by unfair prejudice. Section 352.2 takes FRE 403 further by requiring two factors the court must consider when determining if the probative value of admitting the creative expression outweighs the substantial danger of undue prejudice:
1. The first factor guides the determination of the probative value, finding that the probative value of a creative expression is minimal unless the creative expression was created near the time of the alleged crime, is similar to the crime, or includes factual details not publicly known.
2. The second factor guides the analysis of undue prejudice and requires courts to include the risk of jurors treating creative expression as evidence of a defendant’s violent tendencies or injecting racial bias into the proceedings when considering undue prejudice.
The statute’s provisions further require that while determining the admissibility of creative expressions courts must consider: (i) credible testimony of the genre of the creative expression as to the social or cultural context, rules, conventions, and artistic techniques of the expression; (ii) experimental or social science research demonstrating that the introduction of a particular type of expression explicitly or implicitly introduces racial bias into the proceedings; and (iii) evidence to rebut such research or testimony. Finally, any decisions on admissibility must be made outside the presence of the jury, with the court providing a clear explanation of its reasoning.
Unlike the Louisiana RAP Act, the California Act creates a higher standard for the admission of rap lyrics as evidence. As discussed in our previous post, the Louisiana RAP Act only regulates the admission of creative expression when they are admitted as character evidence, meaning creative expressions may still be admitted for other purposes avoiding any extra scrutiny from the court. California’s law is similar to the current proposed federal RAP Act in that it raises the level of scrutiny for creative expressions admitted as evidence for any purpose.
The federal RAP Act creates a presumption against admissibility of lyrics requiring clear and convincing evidence that the defendant intended the literal meaning of the expression by requiring a showing that: (a) the “creative expression refers to the specific facts of the crime alleged;” (b) the “expression is relevant to an issue of fact that is disputed;” and (c) the “expression has distinct probative value not provided by other admissible evidence.” By contrast, California’s law involves a balancing test considering both the probative value and potential prejudice. The most notable difference between the California law and the federal RAP Act is that the former has an explicit emphasis on mitigating racial bias.
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In our next posts for this series, we will continue to follow not only the federal RAP Act, but also pending legislation in Illinois, New York, New Jersey, Missouri, and Maryland.
*See §1 (a) Cites Stuart P. Fischoff, “Gangsta’ Rap and a Murder in Bakersfield,” 29 J. Applied Soc. Psych. 795, 803 (1999); Carrie B. Fried, “Who’s Afraid of Rap? Differential Reactions to Music Lyrics.” J. Applied Soc. Psych. 29:705–721 (1999); Adam Dunbar and Charis E. Kubrin, “Imagining Violent Criminals: An Experimental Investigation of Music Stereotypes and Character Judgments,” Journal of Experimental Criminology 14:507-528 (2018).
Further resources:
https://pitchfork.com/news/californias-rap-lyrics-bill-becomes-state-law