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When Rap Lyrics Stand Trial

New America Media | 8/5/2012, 4:21 p.m.

At trial the following May, the judge overruled vigorous objections from defense counsel and allowed the prosecutor to show the jury two YouTube videos. In one, a video for a song called "B.M.F. Freestyle," Smith raps, "Another trip to Texas ... we going doctor shopping." In another video, called "Behind-the-Scenes," Smith -- still in character as G-Red, but talking instead of rapping -- insists to the camera that "We really do the sh-- that we rap about. Like, we really take those trips." Although he took the stand and repeatedly claimed that his raps were fiction and intended to entertain, the predominantly white jury had seen all it needed.

Smith was found guilty and, because he had a prior record, was sentenced to a jaw-dropping 30 years in prison. According to Carolyn McNabb, his attorney, the rap lyrics were "the primary motivator for the guilty verdict." Despite having a very strong defense, she knew that the YouTube videos were going to seal the outcome. "I knew when the jury saw them, it was over," she said. "That's why I fought so hard to keep them out."

Five months later, aspiring rapper Olutosin Oduwole also found himself on trial and facing jail time for his lyrics. In July 2007, Oduwole's car ran out of gas, forcing him to abandon it on the Edwardsville campus of Southern Illinois University, where he was a student. When school authorities found the car, they also found a crumpled piece of paper stuffed between the seats on which Oduwole had made written reference to a PayPal account and included the lines, "If this account doesn't reach $50,000 in the next 7 days then a murderous rampage similar to the VT shooting will occur at another highly populated university. THIS IS NOT A JOKE!"

Police immediately searched Oduwole's apartment, where they found a legally acquired handgun. They also learned that he had been trying to purchase additional guns, also legally, and that was all they needed. Oduwole was charged with attempting to communicate a terrorist threat.

At the October 2011 trial, defense attorneys argued that Oduwole was an amateur rapper who took compulsive notes about ideas for his lyrics. They even brought in an expert witness who reviewed Oduwole's other notebooks of lyrics and compared them with the note.

She testified that the writings on the crumpled note were clearly an idea for a rap song or "the formative stages of a rap lyric." She also testified that Oduwole was an aspiring "gangsta" rapper and that his lyrics comported with what one might expect from someone in that subgenre. Nevertheless, the all-white jury convicted the 26-year-old Oduwole, who is black, and he was later sentenced to five years in prison.

In both of these cases and many others, courts effectively deny rap the status of art. Rather than accept it as a kind of poetic fiction, they instead take it as a literal expression of reality. This is no doubt thanks in part to testimonials from rappers themselves, who, in order to be regarded as authentic, frequently claim that what they rap about is a life they've experienced firsthand. Judges and juries don't necessarily know that this is as much marketing strategy as it is reality, an ignorance thatprosecutors either share or exploit.