On December 1, the United State Supreme Court will hear arguments in the case of Elonis v. United States. After Anthony Elonis’s wife left him, taking their kids with her, he began writing increasingly violent and offensive posts about her on Facebook. “There’s one way to love you but a thousand ways to kill you,” he wrote. “I’m not going to rest until your body is a mess, soaked in blood and dying from all the little cuts.” In 2011 he was found guilty of violating federal communication laws which prohibit the transmission of threats across state lines. The question before the Supreme Court this: Is it necessary to prove that the defendant in such a case intended his or her statements to be threatening, or is it sufficient to demonstrate that a “reasonable person” would regard the statement as threatening? Elonis does not deny writing the statements that prosecutors entered as evidence, but he claims that they were lyrics to rap songs he was writing, apparently influenced by Eminem. “It's not fictitious, it's not rap lyrics,” Assistant US Attorney Sherri Stephan said. “It's tailored threats.” Regardless of how genuine we may perceive Elonis’s creative claims to be, however, the Supreme Court’s ruling in this case will have consequences that extend far beyond what one can reasonably expect to be allowed to post on Facebook—namely, the relationship between the criminal justice system and hip-hop music.

Rap lyrics were entered as evidence as early as 1994, when prosecutors in California used Francisco Calderon Mora’s lyrics to establish his membership in the Southside F Troop street gang, vying for a sentencing enhancement. “Regardless of whether these lyrics were written before or after the killing, they were adequately authenticated as the work of Mora. As such, they demonstrated his membership in Southside, his loyalty to it, his familiarity with gang culture, and, inferentially, his motive and intent on the day of the killing,” Judge William Bedsworth wrote in the appellate court’s 1994 decision upholding the admissibility of Mora’s lyrics. “Nothing makes these rap lyrics inherently unreliable—at least no more unreliable than rap lyrics in general.” Bedsworth's decision set the legal precedent for interpreting rap lyrics as non-fiction, rather than as a more metafictional, hybrid form. It is a decision that plays upon deep, racist biases—an inability to recognize a difference between the rapper as an artist and the rapper as a human being—and that re-inscribes those biases into the very text of our judicial system.

For prosecutors and jurors, rap lyrics have a particular sense of veracity that lyrics from other genres of music simply do not. In 1996, social psychologist Carrie Fried presented ordinary people (i.e., potential jurors) with lyrics from the Kingston Trio’s “Bad Man’s Blunder,” a 1960s folk song about a man who kills a police officer. To a third of her subjects, Fried attributed the lyrics to the Kingston Trio; to another third, she attributed the lyrics to a country singer; to the final third, she attributed them to a rapper. “When a violent lyrical passage is represented as a rap song, or associated with a Black singer, subjects find the lyrics objectionable, worry about the consequences of such lyrics, and support some form of government regulation,” Fried wrote. “If the same lyrical passage is presented as country or folk music, or is associated with a White artist, reactions to the lyrics are significantly less critical on all dimensions.” In 1999, Stuart Fischoff, another psychologist, found that not only were potential jurors inclined to believe that rap lyrics were intended to be interpreted as facts but that “authoring ‘gangsta rap’ lyrics vies with being charged with murder in terms of the impact of central trait properties in the person perception process.” That is to say, gangster rap was more offensive to potential jurors’ sensibilities than someone being charged with murder.

“They make the case more compelling the favor of the government, and they cheat to do it,” Dr. James Braxton Peterson, Director of Africana Studies at Lehigh University, told me. “The reality is that there’s no one on the jury that doesn’t have a certain kind of perception about hip-hop music.”

 An educational pamphlet called Prosecuting Gang Cases: What Local Prosecutors Need To Know published in 2004 (and funded by a grant from the Department of Justice) advises prosecutors about the best ways to introduce the jury to “the real defendant” in a section titled, “Will The Real Defendant Please Stand Up?” “The real defendant is a criminal wearing a do-rag and throwing a gang sign,” the handbook reads. “Through photographs, letters, notes, and even music lyrics, prosecutors can invade and exploit the defendant’s true personality.” A disclaimer at the front of the book notes that its contents should not be taken as legal advice. (The Department of Justice did not respond to a request to comment.) But of course this isn't legal advice—it's narrative advice, given in the service of the construction of a character. And what better way to create a compelling character than to present people with one they think they already know? "In today's society, many gang members compose and put their true-life experiences into lyrical form," an FBI intelligence analyst wrote in a 2006 article on "Understanding Gangs and Gang Mentality." "Occasionally, the writings can be used as evidence."

In August 2013, the Nevada State Supreme Court ruled that lyrics, written in jail by a defendant awaiting extradition, were deemed admissible as evidence. The lyrics were about robbing someone; their author was charged with robbing someone. That same summer, the New Jersey ACLU filed an amicus brief on behalf of a New Jersey man appealing the evidentiary use of lyrics he had written. The NJ-ACLU identified 18 different cases in which prosecutors had applied to enter rap lyrics as evidence; in 14 of the 18 cases, judges deemed the lyrics admissible. “It is pervasive, it is widespread,” Erik Nielson, a rap scholar at the University of Richmond told me. The Marion Brechner First Amendment Project at the University of Florida submitted an amicus brief in Elonis v. United States on behalf of Nielson and his research partner Charis E. Kubrin, a criminologist at the UC-Irvine.

“Unless a defendant-speaker’s subjective intent is taken into account, these problems may cause a juror, particularly one unfamiliar with the genre or who holds negative stereotypes about it, to falsely and incorrectly interpret rap lyrics as a threat of violence or unlawful conduct,” the brief reads. “As a result of such misinterpretation and misunderstanding, important political and artistic expression may be wrongfully squelched and punished.”

“Lyrics are being used all throughout the criminal justice process,” Nielson told me. “They’re being used in indictment hearings, they’re being used in actual trials, they’re being used in sentencing hearings. We know that they’re being used in less formal ways, for example to compel a plea bargain.”

What this means is that as far as prosecutors are concerned, an aspiring rapper’s lyrics fundamentally do not count as art: They’re just another piece of evidence. “People have a very difficult time conceiving of the young men of color, who are the primary producers of rap music, as artists in the first place,” Nielson said. Put another way: the creative output of black and brown people—and especially young, poor, black and brown men—is not being treated by the US government as protected speech.

“The prejudice is there; hip-hop is just being used as a way to apply the prejudice. It is hip-hop today, it was jazz 80 years ago, it was rock and roll when Little Richard was around,” Michael Render, a.k.a. Killer Mike, told me. Killer Mike, an acquaintance of Nielson’s, is a rapper from Atlanta who won a Grammy with OutKast for his verse on “The Whole World” and last week released his second album with El-P as Run The Jewels. “The most dangerous thing is not the active participation in a racist system—by the judges or the prosecutors or the police, who are the front lines of making sure these policies are in place—but the very real and very scary thing is the apathy by the general American public that is the same racial makeup of the leaders of these groups.”

Nielson and Kubrin are currently working to update and expand upon Fried and Fischoff’s findings and develop a way to catalog these kinds of cases as they happen. “We’re looking at cases in the hundreds,” Nielson said. “We know it’s hundreds. The question is, is it bigger than that?”

Vonte Skinner's mug shot.

In 2008, aspiring rapper Vonte Skinner was charged with the attempted murder of a man named Lamont Peterson. Prosecutors claimed that Skinner and Peterson were drug dealers who’d previously worked together and had had a falling out. On trial in 2008, New Jersey state prosecutors submitted and read 13 pages of lyrics written by Skinner they found in the back seat of his car when they arrested him after Peterson, who was left paralyzed from the waist down, identified him as the shooter. Many of the lyrics had been written months or even years before the night of the shooting; it is widely believed that none made any reference to Peterson. The lyrics were offered as evidence of Skinner’s murderous intent. The first jury in Skinner’s case could not come to a decision. He was retried and in 2008 convicted of attempted murder. He was sentenced to 30 years in prison, but he appealed the decision.

An appellate court found that the lyrics had been erroneously admitted and ordered a retrial. Prosecutors appealed the decision, which was in turn upheld by the New Jersey State Supreme Court in August. “One cannot presume that, simply because an author has chosen to write about certain topics, he or she has acted in accordance with those views,” Justice Jaynee LaVecchia wrote. The question at hand was this: Does the probative value of the evidence—that is to say, its usefulness in proving the case—outweigh its prejudicial impact? According to Rule 403 of the federal rules of evidence, “‘Unfair prejudice’ within its context means an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” In other words, is something being submitted as evidence for the purpose of swaying the jury's feelings rather than their rational thoughts?

Every piece of evidence must be weighed against this standard—a decision that is made by judges like Nicholas Garaufis of New York’s Eastern District Court, who, in his decision to allow the prosecution to submit music and rap videos as evidence in the trial of Ronald Herron, a.k.a. Ra Diggs, wrote, “Without passing judgment on the truth of these statements or depictions, the court finds the content of the rap-related videos to be generally relevant in this case where the Government must prove the existence and structure of an alleged criminal enterprise and a pattern of criminal activity committed in furtherance of that enterprise.” Herron, a rapper from Canarsie, was closely affiliated with East New York’s Uncle Murda. The pair, who sometimes performed as the duo Murda Team, had recorded songs with titles such as “Shoota,” “Shots Pon Dem” (the music video to which found the pair shooting at a gun range but featured the disclaimer, “By no means do we support random, senseless, and unwarranted acts of violence.”), and “Live by the Gun,” recorded with the Atlanta by way of Jamaica, Queens rapper Waka Flocka Flame. Herron would be found guilty on 21 counts of murder, attempted murder, conspiracy to commit murder and racketeering, among other things. 

The prosecution’s case was based upon a combination of forensic evidence, undercover agents’ eyewitness testimony, and cooperating witnesses’ testimony—as well as the music, lyrics, and videos produced by Herron’s budding rap career. They argued that Ra Diggs’s music and videos served as propaganda for what they referred to as “the Ronald Herron enterprise”—that is, the drug and crime operation of which Herron was allegedly in charge, based in the Gowanus Houses housing project and in the process of expanding into nearby Wyckoff Gardens when Herron was arrested. “The Government does not dispute that the defendant cared deeply about his music, about rap,” Nitze continued. “There’s nothing at all inconsistent about being an aspiring gangsta rap artist and a real life, hardcore criminal.” (The United States Attorney's Office for the Eastern District of New York—Nitze's office—declined to specifically address multiple requests to comment.)

Any fan of rap, however, knows that the idea of authenticity is, to say the least, slippery, or, as Dr. James Braxton Peterson of Lehigh University, who the defense called as an expert witness on behalf of Herron, described it to me, “a red herring.” “Authenticity is a very empty category when it comes to these kinds of artistic productions,” Peterson told me. “The people who we think are the most authentic,” he said, “are always those who are the best artists. That’s the long and the short of it. Yes, sometimes there is a mix of fact and fiction—or truth and fiction—sometimes it is there. We have to acknowledge that. But the wizardry of that only indicates the artistic capability of the person who is making the lyrics.”

Playing up one’s criminal authenticity is a form of art, as Peterson said, and furthermore a marketing strategy; it is also, however, what creates the ostensible “strong nexus” between specific details of the given lyric and the circumstances of the alleged crime, and what blurs the line—at least as far as prosecutors are concerned—between what is probative and what is prejudicial. “It’s the stuff that we’re most interested in,” as an audience, “and is most likely to be used against you in court, that is least likely to be actually true,” Nielson pointed out. “I mean for Chrissake, these guys make up stage names!” he said. (Indeed, even Anthony Elonis used a pseudonym on Facebook: Tone Dougie. "This is a character I created for myself," he said.) “It’s English 101: author; narrator. We’re able to make that distinction everywhere else, but with rap we don’t do it.”

“That hip-hop and rap is used for convictions is amazing. I’d be in jail a thousand days for the shit I’ve said,” Killer Mike told me. “I mean, I rap about shooting a poodle on the record,” he said, referring to a lyric from the title track from RTJ’s first full-length. But someone like Ronald Herron wasn’t prosecuted for assault: He was prosecuted for running a powerful and profitable criminal organization—which prosecutors claimed was what gave his music its authenticity. “It’s not the point of this evidence that somehow this is generally violent and offensive stuff and so that’s a problem for the defendant,” assistant U.S. Attorney Sam Nitze said in his closing arguments. “No. It’s specific, very specific things that he’s saying to promote himself. And just because he happens to be using it to promote his career doesn’t give him a pass for trying to exploit his crimes to make a name for himself.”

“There’s a very simple thing that dispels that,” Killer Mike said. “If you’re going to take into the authenticity that this person said that I’m a amoral, kingpin, drug-dealing murderer, then why not ask yourself, ‘why is this person using a public defender?’” Indeed, Ronald Herron has been assigned and reassigned three teams of public defenders over the course of his prosecution, and during the trial Uncle Murda testified that he often had to pay for Herron when the pair went to clubs and that Herron didn’t even own a car. According to the New York Times, he said in the courtroom, “Sometimes we exaggerate things to sound like the best thing out there.”

“If you can’t reconcile that fact with the violence and the supposed gangster facade or hyper ego that gets represented in the lyrics, that this person says ‘I have tens of millions of dollars, I have a home in central America, and I have a mansion,’ if you can’t find any of those things and also indict this person for tax evasion, either you’re an idiot or you’re purposely choosing to use the law to punish that person because you’ve already assumed that person’s guilty,” Killer Mike said. “I believe anyone sitting on a judges’ bench has been taught enough logic and is smart enough to know the difference to know that this is a technique that is being allowed to railroad particular practitioners of one type of art form that happen to be of a particular class and a particular color.”

Country and folk music, for example, have a long-standing tradition of murder ballads, while certain strands of heavy metal have a reputation for violent lyrics and imagery. And yet the practitioners of these forms—mostly white men—are not prosecuted in the same way as amateur (or even professional) rappers. In June 2012, Jef Whitehead of the black-metal solo project Leviathan and a contributor to metal supergroup Twilight, was found guilty of aggravated domestic battery after assaulting his then-girlfriend with a tattoo gun. At the time of his trial he was working on an album as Leviathan entitled True Traitor, True Whore, which featured song titles as “Her Circle Is the Noose,” “Harlot Rising,” and “Every Orifice Yawning Her Price.” In an interview with Pitchfork, writer Brandon Stusoy confronted Whitehead with his own song titles, to which he responded, “These are true stories.” However, “Jef’s music was never really an issue in the trial,” his attorney said at the time, according to the Chicago Reader. “It was never really mentioned.”

Meanwhile, hip-hop has reached a nearly unprecedented degree of cultural ubiquity—it's the dominant mode of expression not just for young black and brown people but young, middle-class white people as well. And still the practice of hip-hop (in this case, rapping) is interpreted and understood by many people to signify something dangerous, something threatening, something inherently violent. Indeed, hip-hop became part of the racialized narrative surrounding the recent killing of Michael Brown and the ensuing protests in Ferguson, Missouri. On August 23, a young man was arrested near the McDonald’s on West Florissant in Ferguson for playing Lil Boosie’s “Fuck the Police.” (Boosie himself was acquitted of murder in a 2012 case that included the evidentiary introduction of his lyrics.) “Michael Brown… was no angel,” the New York Timeswrote a day later. The article went on to elaborate, “He had taken to rapping in recent months, producing lyrics that were by turns contemplative and vulgar.” This is a dangerous move to make, as far as interpretation goes—to judge an person's moral character by the moral character of their art.

The hard irony is that ambiguity—and especially moral ambiguity—is exactly the sort of thing that art is supposed to be able to embrace. The exaggeration and self-aggrandizement, the punning and the slang, the fantasies and the nightmares have all played a part in making rap as popular a form as it is. “If I told you I killed a nigga at 16, would you believe me?” asks Kendrick Lamar on the track “m.A.A.d City.” It's hard not to at least wonder. The fact remains, however, that systemic racism does not always allow for ambiguity—or rather, it does, if only to prey upon it. As Killer Mike’s Dungeon Family comrade Big Boi raps on the song “Night Night,” “You're snitching on yourself, and now your front door they come through / Without a tap on your phone / The only thing they had to do, was listen to the raps in your songs.”

Follow Brendan O'Connor on Twitter.