Kanye West, a famously docile and gentle soul, somehow wound up in a scuffle with a paparazzo named Daniel Ramos at LAX. Ramos sued, and West pled no contest to misdemeanor and battery charges. That ended the criminal case against West, but not the civil suit, which is still alive and well. TMZ keeps leaking tidbits from West’s deposition, much to the enjoyment of anyone who wants to hear West attempt to compare the plight of modern-day celebrities to black victims of discrimination during the Jim Crow era or say things like “I’m the smartest celebrity you’ve ever f—ing dealt with. I’m not Britney Spears.”
At one point, Nate Goldberg, Ramos’s lawyer, tried to ask West about “Flashing Lights,” a song in which West raps about his dislike of paparazzi. The verse Goldberg tried to quote to West goes: “‘Til I get flashed by the paparazzi, damn, these ni—as got me.”
West cut Goldberg off, telling him he needed “a hall pass” to use the n-word. But wait just a second — can you just bring somebody’s old rap lyrics up in a lawsuit?
To find out, I called up Ezra Rosenberg, a lawyer who has worked with the ACLU on this issue. Rosenberg just filed a brief on behalf of the ACLU regarding the trial of Vonte Skinner before the New Jersey Supreme Court. Skinner, a drug dealer and up-and-coming rapper, was convicted of attempted murder in 2008. Violent rap lyrics penned by Skinner were read at his trial. The NJ Supreme Court overturned the ruling, stating that “The violent, profane, and disturbing rap lyrics authored by defendant constitute highly prejudicial evidence against him that bore little or no probative value as to any motive or intent behind the attempted murder offense with which he was charged.” The Court wrote that Skinner’s lyrics weren’t connected to the case; bringing up them up was “poisoning the jury.”
What does that mean for West and Ramos? First, Rosenberg cautioned, some clarifications. “This is a civil suit, as opposed to a criminal suit. You have different issues there.” Still, was Goldberg within his rights to ask West about that song? “[He] can certainly ask. But whether or not you can attribute to the person the thoughts that he or she expressed in a piece of creative writing — and sometimes you can, sometimes you can’t — it depends on the circumstances. Certainly the lawyer has the right to ask about it. The real question is whether or not the use of something that’s artistic and, more importantly, something that reflects social commentary, is being used in a way that has a chilling effect on expression.”
A “chilling effect,” for us lay-people: “When you have a right as important as free expression, the courts try to build buffer zones around it – a defense around it, so to speak. So you don’t risk chilling people from expressing themselves, so for example, in the context of rap lyrics, if they were able to be used as freely as people wanted to use them in the Skinner case, that could really chill people, and stop them from writing rap lyrics.”
“Mr. West could very well respond by saying, ‘This was a piece of creativity and I don’t share the views of the narrator,’ or he might say he does share those views, or he might say something else.” This is a really excellent point, because who among us could ever predict what Kanye West is going to say? Today’s news is that he’s afraid a drone will electrocute his daughter while she’s learning to swim.
So are rap lyrics totally protected free speech? You can say anything at all? Not exactly: “Just because you put something in a rap doesn’t make it inadmissible; you don’t shield things by putting them to a beat or making them music.”
Hey, maybe YOU don’t, Rosenberg…
Sorry, back to the case at hand. “Let’s say there was a question as to whether a defendant knew what an Uzi machine gun was,” said Rosenberg. “And the defendant had written a rap lyric about an Uzi machine gun. And the court may say, if the issue is whether or not the defendant has knowledge of an Uzi machine gun, that’s fair play. Just because it’s in a rap lyric, that doesn’t make it sacrosanct.”
“One of the songs that’s often used in these cases is the Johnny Cash song, [“Folsom Prison Blues,”] when he sings that he “shot a man in Reno just to watch him die,'” said Rosenberg. “And the response to that, which the prosecution will make, is, ‘Johnny Cash was never accused of killing a man in Reno. If he had, we would have been able to use it!’ Which is a fair point. But it does not undercut the basic issue. Even there, you’d have to go through it with caution, to see the connection between the lyrics and the suggested charge.”
TL;DR: “There has to be caution when you’re dealing with free expression and particularly artistic expression that has social value.”
So does Kanye’s work have “societal value”? Well, it does according to him. As Kanye would say, “I’m in the business of trying to make dope shit for the world.”