Rap as courtroom reality

In Greene v. Commonwealth? the Kentucky State Supreme Court considered whether portions of a home-made hip-hop video in which the defendant rapped about murdering his wife were admissible as evidence. Although parts of the video were clearly fictitious (Greene rapped about being in a jail cell, which was obviously not (yet) the case), the video nevertheless matched the killer’s modus operandi, cutting “her throat from ear to spine so deeply that it scraped the spine”.² The lyrics provided:

B— made me mad, and I had to take her life. My name is Dennis Greene and I ain’t got no f— wife./I knew I was gonna be givin’ it to her when I got home./I cut her mother—in’ neck with a sword.

In a similar case, after allegedly killing a man at an Olive Garden restaurant parking lot, Gonzalez Wardlow a.k.a. Snoop wrote: “[HJit ’em in his chest [...] caught ’em dead at da Olive Garden”.

This list can easily be continued. In 2009, California resident Alex Medina was charged, based, in part, on rap lyrics composed before and after his arrest (“Never did it for the fame/’cuz that ain’t right,/Did it cause I had love for my homies and the life”), and Colorado’s Jonair Tyreece Moore was indicted with “conspiracy to distribute crack cocaine and cocaine”, using a video recording of Moore rapping as evidence.³ Both defendants were convicted. In the case of Dennis Greene, the State Supreme Court upheld the conviction, finding that the video referred to Greene’s “actions and emotions regarding the crime” and thereby established “premeditation and motive in appellant’s own words”.⁴

Presumably hundreds of cases have been tried since, using defendant-authored rap lyrics as evidence of character, knowledge, motive or intent, often pertaining to serious matters such as aggravated assault, rape or murder. In a number of cases, the rap lyrics even constituted criminal acts: Olutosin Oduwole was charged with attempted terrorist threats based on a handwritten draft containing rap lyrics, and Blake Jones, who regularly exchanged rap lyrics with his highschool friend, was convicted of terroristic threatening in the first degree for a manuscript containing the following lines:

I’m a motherf— murderer, I slit my mom’s throat and killed my sister. You gonna keep being a bitch, and I’m gonna cliche [click], [...]. I’ll murder you before you can think twice, cut you up and use you for decoration to look nice.⁵

For prosecutors in particular, rap lyrics seem to be an especially fruitful source of evidence, and unsurprisingly, law enforcement officials are carefully instructed not to overlook this opportunity. The statement “[p]erhaps the most crucial element of a successful prosecution is introducing the jury to the real defendant” is found in a 2004 brochure of the American Prosecutors Research Institute titled Prosecuting Gang Cases: What Local Prosecutors Need to Know.⁶ The manual continues:

Through [...] notes, and even music lyrics, prosecutors can invade and exploit the defendant’s true personality. Gang investigators should focus on these items of evidence during search warrants and arrests.⁷

Donald Lyddane’s “Understanding Gangs and Gang Mentality: Acquiring Evidence of Gang Conspiracy” includes a similar passage:

In today’s society many gang members compose and put their true-life experiences into lyrical form [...] Law enforcement officials must remain mindful of [... ] the opportunities to obtain inculpatory evidence in gang-related investigations and cases.⁸

Although convictions were not disputed in the case of Dennis Greene and Gonzales Wardlaw, a number of recent cases have especially aroused discussion, leading to a number of federal or State Supreme Court decisions on the matter. In Commonwealth v. Steward, prosecutors decided not to introduce into evidence defendant-authored rap lyrics that the local police had understood as confessions of a murder committed,⁹ and in the case of Vonte Skinner, charged with “attempted murder and related charges”, a conviction based on defendant-authored rap lyrics was later overturned by the State Supreme Court.¹⁰

Both defendants and scholars have long argued that, within the courtroom, rap lyrics need to be treated with extreme caution due to their artificial nature and fictional status. In United States v. Moore, the defendant stated that rapping was his “art”and that “his provocative lyrics were not literally true, but were meant to draw a response from the crowd”.¹¹ Blake Jones claimed he was “modeling his writing after [rap artist] Eminem”and further stated: “It was a rap and pretty gruesome.”¹² Similarly, Antwain Steward had maintained that he was “in the lane of hardcore rap”, and that he just wanted to build up his “brand”. In United States v. SB 12 13, defendant Melvin Colon argued that the rap lyrics used as evidence to show an ongoing gang feud and his gang affiliation were merely “fictional artistic expressions” and “puffery” that should not have been admitted against him, and in Elonis v. United States, the Marion B. Brechner First Amendment Project submitted an amicus brief on behalf of Rapper Anthony Douglas Elonis,¹³ arguing that his rap lyrics need to be understood as “a recognized form of artistic expression”¹⁴ that uses “invented stories and characters”.¹⁵ Along the same lines, scholar Erik Nielson emphasized that rappers were “creating characters, not diaries” and highlights that, in the case of rap lyrics, prosecutors constantly missed the distinction between author and narrator while they “seem to able to grasp that concept with every other art form that uses first person narrative”.¹⁶ Such warnings are not without reason. If Henry' Louis Gates Jr. is correct in his assessment that rap lyrics are “the new vanguard of American poetry'”¹⁷ and consequently' should not be excluded from the literary’ canon, literary' theory' needs to enter the courts when rap is on trial. What would be required then, as an initial distinction, is not whether the material presented in the lyrics is true, but whether the discourse is factual, taking into account not only that the material used in gangsta rap lyrics often is fictitious, but also that the songs might in fact need to be qualified as fictional discourse.

It is my' position that a speech act approach is particularly fruitful when assessing rap lyrics in court, both because it allows the perlocutionary' function of rap music (as the utterances ultimate goal) to be taken into account, and, as I will later argue, because it also raises the bar, forcing legal interpreters to further justify their claims of an alleged factuality' of the particular lyrics in question.

As explained in Chapter 1 of this volume,¹⁸ the basic assumption of speech act theory' is that speaking is “doing”, that it consists in performing illocutionary acts, and that its perlocutionary' function might differ considerably from the locution’s propositional content. From a theoretical perspective, the issue of fictionality is treated in two very' distinct ways within speech act theory': either an illocutionary' act is said to be only pretended, or an illocutionary' act suigeneris is said to be actively' and seriously performed. In the case of rap lyrics used in trials, however, the practical consequences are nevertheless the same: taking rap lyrics at face value as an assertion, or even as a confession, confuses two distinct and incomparable types of discourse - and thus means to commit a categorical error.¹⁹ The latter is particularly' problematic for a version of speech act theory' that considers fictional discourse as non-assertive, and thus understands fictional ¡(locutions as devoid of truth values.²⁰

Furthermore, a performative approach is adequate with regard to rap lyrics, since within rap culture the issue of performance stretches much further than the sole notion of rap lyrics as illocutionary' pretense: the complete set of communicative behavior that rap artists employ is of performative nature, from the creation of a stage name to a legend that is also supposed to govern their private lives. Correspondingly, the amicus brief submitted in Elonis v. United States compares rap artists to wrestlers that stay in character even after they have left the stage, evoking what Tricia Rose coined “[r]ap’s pretense of no pretense”: rap artists “act as if they live the life they rap about”.²¹ Having understood that “gangsta-rap is the most profitable genre”, record companies in fact soon began encouraging artists to focus on gangsta-style lyrics.²² Artists are also well aware that rap is not only a form of art, but a commercial product requiring a certain kind of pretense. After having been acquitted, Antwain Steward commented in an interview on the divergent perloctitionary function of his music as follows: “I just found something that I’m talented at and found a way to make money of it [and] like it or not, gangsta rap is what sells.”²³

While sometimes the question of factuality is not difficult to negate (Rick Ross, for example, contrary to his persona’s legend, had a college education and even served as corrections officer),²⁴ lines can also easily become blurred. Particularly in the case of gangsta rap’s creation of a criminal persona, usually accompanied by graphic accounts of violence, audiences can easily overlook that these are genre conventions and begin to “conflate artist with character and fiction with fact”.²⁵ The problem furthermore gains complexity if it is understood that also in rap lyrics, fictionality and literariness are distinct²⁶ though interdependent factors, inhibiting simplistic factual readings. Additionally, with literariness a recognized feature of rap, intertextual questions will inevitably enter the discussion. The text in rap lyrics is also often servant to form (thus understood only as basic material that needs to be subjected to rhythm and meter, leading to a particular “style” and “flow”). As in literature generally, the propositional content of a work might often be a result of a certain genre chosen and other preceding texts in this tradition, rather than the result of real events in the author’s life - an insight the history of literature will inevitably teach any scholar invested in the field.

Rap lyrics prove to be rather typical in this latter aspect. Using the stock characters and stock narratives its genre provides, explicitly quoting, referring to or even contesting other rap lyrics, makes it challenging for an outsider to participate in this literary game as a reader or listener, and this particularity is likely to inhibit understanding or even foster misunderstanding. Umberto Eco once maintained that the reception of any art form requires an intertextual encyclopedia that is consciously or unconsciously activated at every instance of reception, and rap music seems to be a particularly strong example here. That rap draws on the “use of collective consciousness”²⁷ is not a new insight, and it is not surprising that this insight has already found its way in the amicus brief submitted in Elonis v. United States.²⁸ Being “highly focused on form”, the brief explicitly positions rap in a “long tradition of African American storytelling [...] which privileges exaggeration, metaphor, [...] wordplay”,

“parody”, and “pastiche”.²⁹ Characterized by “dense slang” and “coded references”, it is not only characterized as requiring “knowledge”of the “complicated conventions” of rap music to be properly understood,³⁰ but is even said to “defy interpretation at every turn”, “with rap’s ‘rhetorical flexibility’ being an essential challenge for interpretation”.³¹ In a similar fashion, the amicus brief submitted by the American Civil Liberties Union of New Jersey in State v. Skinner quotes scholar Andrea Dennis:

Rap lyrics have their own artistic conventions [...] Rappers tell long, evolved, sometimes abstract stories with catchy and memorable phrases and beats that lend themselves to black sound bite packaging, storing critical fragments in fast paced [...] rhythms [....] For rap’s language wizards, all images, sounds, ideas and icons are ripe for recontextualization, pun, mockery' and celebration.’²

Drawing on the notion of playfulness of rap lyrics, rap has long been qualified as part of Postmodernism’s literary movements.³³ The notion of rap’s literariness, including intertextuality and genre-dependent narratives, is supported by a considerable number of investigations on rap’s form and narrative content,³⁴ with the African American Review even devoting a special issue to the topic titled Hip Hop and the Literary.³⁵ For some, rap constitutes “a contemporary' stage for the theatre of the powerless”, and as “enacted ideological insubordination” it poses a critical voice in form of “jokes and stories”,³⁶ also allowing “young men and women of color to create a poetic universe in which they are masters of their environments”.³⁷ For others, gangsta rap, as a newer sub-form of the genre, is not only a form of expression, but politically and socially performative, constituting “an act of resistance and defiance in a society that seeks to demean a group based on an inalterable trait”.³⁸ At the same time, gangsta rap has proven to be particularly' prone to misinterpretation. Having a reduced set of stereotypical characters, topics, and narratives, rap music in general already presents a “unique blend of metaphors, boasts, and narratives deriving from oral and literary’ traditions of the black community'”³⁹ that might unsettle unacquainted recipients:

The intention of the narrator of the [rap music] yarn is to tell outrageous stories that stretch and shatter credibility, overblown accounts about characters expressed in superlatives [...] by definition the traditional yarn is always [...] one outrageous lie after another.⁴⁰

Gangsta rap is characterized by an even narrower scope of narratives and characters, actually' embracing the stereotype of the “bad black man”,⁴¹ and as a typically first-person narrative, performances on- and off-stage are closely interlinked. With the performer’s self-portrayal off- and on-stage also following a set of given rules and codes,⁴² it readily invites a confusion of fact and fiction.

artist and criminal persona. Consequently, it is not surprising that the amicus brief in State v. Skinner positioned the defendant’s rap lyrics precisely in the latter context:

Mr. Skinner’s lyrics [... ] depict a world where violence is so intense and so all-pervasive that it makes the reader hold his or her breath. True to the “boast”, the lyrics contain “exaggerated and invented boasts of criminal acts [...] where the narrator is ringmaster of violence [...] The narrator is portrayed as a virtual Angel of Death [...] who will ‘have you in front of heaven prayin’ to God, body parts displaying the scars”. [...] [TJthe language Mr. Skinner uses is offensive, outrageous and inappropriate [...] Mr. Skinner’s rap lyrics, with their anger, profanity, their misogyny, and their brutal and unremitting violence paint a portrait of a city and of a people seemingly beyond help and without hope. Whether these lyrics represent an assertion of power, an embrace of stigma, or something else, they convey messages of profound public concern.⁴'’

That said, it is understandable that the lines between fact and fiction can easily become blurred, especially in the case of gangster rap - and here not only by material of factual origin entering fictional discourse, but also by fictional discourse overshadowing the factual world. It has already been stated in secondary literature that in the history of hip-hop, it was not uncommon for both former and present gang members to engage in music; in the case of break-dance and rap’s oral competitions even substituting actual violence with represented and thus enacted violence, relocating the fights from the street into the realm of art - which might have served in preventing violence instead of causing it.⁴⁴ Examples for the contrary’ topical movement have also been noted. In the case of Anthony Johnson, accused of murder and allegedly bragging about it in songs, the defendant’s attorney declared:

We’re talking about a bunch of guys who think they’ are hip-hop stars in San Antonio. They’re not living the dream - they’re living in a dream. They started to believe in their own image [...] when in fact it wasn’t (real)⁴⁵

Unfortunately, for a judicial interpretation of rap, such blurring is understood as the rule rather than the exception, with the prosecutors and judges readily assuming that rap lyrics have at least some factual background - either in the life or in the character of the lyrics’ author - and therefore can be taken at face value, disregarding the particular illocutionary’ status of rap as discourse.

For speech act theory’, the amalgamation of factual and fictional material often present in rap lyrics is not, in and of itself, a problem, since fictionality is, from the onset, understood as a question of mere form. A speech act is either factual or fictional, depending on its markers⁴⁶ or the context it is framed by, and speech acts that are partly fictional and partly factual simply do not exist. At the same time, speech act theory' accounts for content of factual origin in fictional speech acts. According to Searle, most fictional utterances actually “contain nonfictional elements”.⁴⁷ For Searle’s understanding of fictional discourse, this is, however, only relevant as a genealogical question: as the question where the “material” is taken from or what “propositional content” the pretended speech act contains. Once part of a pretended illocutionary' act, any former non-fictional assertions or references have inevitably lost hitherto existing truth values.

This does not mean that fictional speech acts cannot be used as evidence. That the question of the fictional nature of a speech act is not a quantitative question (depending on the amount of “referentiality” or “factuality” present) but a merely formal one, however, considerably changes the proceeding to be used during a trial. Once qualified as potentially' fictional (e.g. by the use of stage names or by' other pragmatic framing of the utterance as fictional), a literary' critic’s process needs to be applied in order to discern whether the propositional content nevertheless represents true events. One could even claim that the illocutionary’ status in fact heightens the requirements of proof, and that the propositional content of such speech acts is to be treated prima facie as non-factual, with the consequence that the alleged factuality' of the material has to be meticulously' established if courts wish to use such fictional utterances as evidence.

What speech act theory' demands depends on how courts permit rap lyrics to be used in trial. As said above, two distinct types of cases usually occur: either rap lyrics are used as evidence in order to establish knowledge, motive or intent, or they' are understood as criminal acts themselves (usually qualified as criminal threats). Under speech act theory', whether a rap song constitutes a criminal threat is solely a question of the status of the speech act: if the speech act in itself was serious⁴⁸ or only pretended. The question of whether rap lyrics can be used as evidence in order to establish motive and knowledge, or can even be treated as a confession, is more complicated, however, since it involves two subsequent questions: first, whether the song as speech act is a factual or fictional one, and, second, if classified as fictional, whether it nevertheless contains material of factual origin. Speech act theory' does not facilitate the task of discerning whether material integrated in a possible artefact (rap songs) has a factual origin. Actually, the contrary is the case; since fictionality is to be regarded as the rule in rap lyrics, the evidentiary' requirements are considerably altered, now demanding that factual ties are convincingly established first before such texts can even be taken into account as criminal evidence.

Instructive is the United States Court of Appeals decision in Elonis v. United States. The defendant had posted on Facebook:

Did you know that it is illegal for me to say I want to kill my wife.f...] It’s indirect criminal contempt [...] Now it was okay to say' for me to say' it right then because I was just telling you that it’s illegal for me to say I want to kill my wife. I’m just letting you know that it is illegal for me to say that. [...] Um, what’s interesting is that it’s very illegal to say I really, really think someone out there should kill my wife. [...] But not illegal to say with a mortar launcher. Because that’s its own sentence. It’s an incomplete sentence but it may have nothing to do with the sentence before that. So that’s perfectly fine. Perfectly legal. I also found out that it’s incredibly illegal, extremely illegal, to go on Facebook and say something like the best place to fire a mortar launcher at her house would be from the cornfield behind it because of easy access to a getaway road and you’d have a clear line of sight through the sun room.⁴⁹

Since the defendant had gone to great lengths to hide the illocutionary' status of his utterances, obfuscating a threat as a prima facie assertory' speech act, the appellate court had to decide whether a “criminal threat” was uttered. In compliance with speech act theory, the court did not bother with phrasal semantics,⁵⁰ but instead solely relied on the performative status of the utterance when asking whether a “true”⁵¹ threat was actually made. In order to decide the latter, the court furthermore raised a question which is also manifest both in speech act theory' and in fictional theory':⁵² whether the performative status of the utterance has to be judged from the recipient’s perspective, requiring solely' that the victim understood it as an intentional threat, or whether the actual intent of the speaker to perform a threat was necessary'.

While in the case of such “true threats” the judicial decisions generally show an adequate consciousness of the linguistic issues at hand, critical scrutiny is often absent in those cases where a potentially or evidently' fictional speech act has a propositional content that might contain elements of factual origin: the paradigm case of rap lyrics to be used as evidence of a crime committed, establishing knowledge, intent or motive. As shown, here, courts regularly do not discern at all whether a real or a fictional (assertive) speech act, which might even amount to a confession, was uttered. Due to this common omission, a Supreme Court decision had been tensely' awaited, and was celebrated among civil rights activists once it was pronounced: the NJ State Supreme Court opinion in State v. Skinner. In its decision, the court seems to exhibit a clear understanding of the issue when deeming defendant-authored rap lyrics inadmissible by' stating:

Fictional forms of inflammatory' self-expression such as poems, musical compositions, and other writings about bad acts, wrongful acts, or crimes, are not properly evidential.⁵³

The defendant Vonte Skinner was initially convicted of attempted murder, using defendant-authored rap lyrics. Skinner’s lyrical persona, called “Threat”, shared a number of similarities with the author of these lyrics (notably a tattoo of the word “Threat”), and the lyrics depicted “in graphic detail, using violent metaphors, racial epithets, and profanity', acts of violence that the narrator has committed or anticipates to commit”. ⁴

Skinner’s appeal was backed up by' an amicus brief of the American Civil Liberties Union of New Jersey, claiming that Skinner’s rap songs constitute “a form of expression, however distasteful, which the constitution tolerates and protects” as laid out in Street v. New York.⁵* As “expressive conduct” which includes artistic expression such as painting, music, poetry’ and literature, the lyrics were entitled to protection under the First Amendment to the US Constitution and Art. I, paragraph 6 of the New Jersey constitution, and, by' providing “social and political commentary' on impoverished black neighborhoods”, qualified as “speech on matters of public concern” as defined in Snyder v. Phelps - and thus were entitled to an even higher protection than other artistic expressions?⁶ In this case, the State Supreme Court declared:

[W]e detect little probative value to the lyrics whatsoever. The difficulty in identifying probative value in fictional or other forms of artistic self-expressive endeavors is that 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. One would not presume that Bob Marley, who wrote the well-known song “I Shot the Sheriff,” actually' shot a sheriff, or that Edgar Allan Poe buried a man beneath his floorboards, as depicted in his short story' “The Tell-Tale Heart,” simply because of their respective artistic endeavors on those subjects. The defendant’s lyrics should receive no different treatment. In sum, we reject the proposition that probative evidence about a charged offense can be found in an individual’s artistic endeavors absent a strong nexus between specific details of the artistic composition and the circumstances of the offense for which the evidence is being adduced.⁵⁷

Already' in State v. Hanson, “the proposition that an author’s character can be determined by' the type of book that he writes” had been strongly contested -in clear contrast to the well-known use of literary’ evidence already in the paradigm trial against writer Oscar Wilde, where excerpts taken from The Picture of Dorian Gray had been used to prove the accused’s deviant behavior. The long-awaited, now articulated criterion for admissibility of fictional evidence in State v. Skinner - the criterion of a “strong nexus” - at first glance could well fulfill expectations, since it can be read as the requirement to establish a genealogical relationship between facts in the real world and their representation in a fictional speech act, as literary' criticism commonly prescribed (and in recent times even more often refutes). However, both the court’s argumentation in section III A of the decision and the examples provided in section III B (including a reference to Greene v. Commonwealth and Bryant v. State) show that a “substantial similarity with the alleged crime” is understood to be sufficient to fulfill the requirement of establishing a “strong nexus” - and would thus allow rap lyrics to be used as evidence even in dubious cases. The latter should, however, not come as a surprise. In Skinner, the requirements enumerated above were part of the so-called Cofield test, which is not concerned with questions of fictionality, but, as the court is explicitly aware, was developed to “avoid the over-use of extrinsic evidence of other crimes or wrongs”. The Cofield requirement’s aim thus is not to discern whether a fictional speech act has a factual background, but to address the fact that “the jury may convict the defendant because he is a ‘bad person in general’”, which is understood to be “the underlying danger of admitting other-crime [or bad-act]”. Since the Cofield test is only designed to exclude factual evidence if such facts have no immediate relation to the crime (but instead need to be considered as unrelated crimes or “bad acts”), the test is neither aimed at nor capable of accounting for the categorical differences between fictional and non-fictional speech acts. Accordingly, in State v. Skinner, the rap lyrics in question were not excluded because of their fictional nature. It was in fact considered irrelevant in Skinner’s case whether the lyrics were factual or fictional. The only relevant criterion was whether the lyrics had “the capacity” to “poison the jury' against a defendant” and therefore needed to be treated equally with “other crimes [or bad acts]” under N.J.R.E. 404(b).

Comparably, in United States v. Moore, although the Court of Appeals ruled in favor of the appellant, defendant-authored lyrics were taken at face value as a factual account of events. As in State v. Skinner, no particular effort has been made to name or establish criteria for how fictional accounts can be distinguished from factual ones, which, however, should be a prerequisite of determining the probative value of the lyrics in the case tried. That the hermeneutical circle is a vicious one, and especially when the court’s fictionality test is solely based on the criterion of a “substantial similarity with the alleged crime” - and thus on the same adequatio ad rem relation that the lyrics as evidence are supposed to establish in the first place - should, however, have already provided sufficient grounds for the court to be doubtful in both above cases.

The introductory passage to section III C in the decision in State v. Skinner, which comments on the “difficulty of pronouncing a hard and fast rule to govern the admission of rap lyrics”, demonstrates that courts are in fact quite aware of some of the issues at stake. That courts often do not sufficiently determine the nature of the respective speech acts might not be due to a naive understanding of fictionality (only). Practical considerations also play a part -such as the fact that a speech act approach, instead of facilitating the process, rather complicates the matter by raising the evidentiary' bar. The problem is furthered by' a fact that has recently' been addressed by' scholars.⁵⁸ It has been monitored that not only legal practice engages in problematic readings of rap songs, but that also outside the field of law, a “complicity with legal interpretative violence” existed. Especially regarding rap and R&B songs that participate in what scholars have termed “rape” or “rapey' culture”, a tendency of the general public to engage in what Eve Kosofsky Sedgwick has called “paranoid readings”⁵⁹ has been described. It is in fact argued that “the project of weeding out [rape culture] in cultural products has certain affective elements and epistemic learnings. One of its learnings is a commitment to [...] ‘a hermeneutic of suspicion’”.⁶⁰ From “the weak evidence that connects certain songs to sexual coercion”, it has also been concluded that “the terms ‘rapey’ and ‘rape culture’ operate as negative fetish concepts”, and that a “racialized fetishiza-tion” underlies the “disproportionate and more vehement targeting of black performers”.⁶¹ Scholars have furthermore directed their attention to the performative nature not only of the songs but also of the discourse criticizing and persecuting such utterances.⁶²

Evidently, legal discourse might not be completely immune to such general tendencies, and, as already mentioned above, reasons for a non-critical use of rap lyrics in trials might thus subsist on two very different levels of consciousness. The latter may especially explain legal practice’s harsh neglect of insights from other fields such as linguistics,⁶³ literary' theory, media studies, performance studies and sociology. That in United States v. Wilson the court simply rejected a scholar’s expert witness testimony on the premise that rap lyric interpretation was not a subject “worthy of expert witness testimony”⁶⁴ seems to be indexical for a general trend of courts to consciously or unconsciously' adjourn the problematic task of determining the specific hermeneutical challenges of rap lyrics interpretation.

Notes

• 1 Greene v. Commonwealth of Kentucky, No. 2004-SC-000046-MR, Decided: May 18, 2006.
• 2 Medical testimony, cited ibid.
• 3 The case led to an appeal (United States v. Jonair Tyreece Moore, No. 10-2001, Decided April 06, 2011)
• 4 Greene v. Commonwealth, ibid.
• 5 Jones v. State of Arkansas, No. 01-695, Decided: January' 17, 2002.
• 6 Alan Jackson, Prosecuting Gang Cases: What Local Prosecutors Need to Know (Alexandria, VA: American Prosecutors Research Institute, 2004), www.nationalpublic.safetypartnership.org/clearinghouse/Resource/467 (last accessed: 01/08/20).
• 7 Op. cit., 19.
• 8 Donald Lyddane, “Understanding Gangs and Gang Mentality: Acquiring Evidence of Gang Conspiracy”, United States Attorney’s Bulletin 2006, 1 (the passage is quoted by: Andrea Dennis, “Poetic (In)Justice? Rap Music Lyrics as Art, Life, and Criminal Evidence”, Columbia Journal of Law and the Arts 31 (2007), 1).
• 9 Commonwealth of Virginia v. Antwain Donte Steward, No. JA092055-03.
• 10 State of New Jersey v. Vonte L. Skinner, Decided: August 04, 2014.
• 11 United States p. Moore, No. 10-2001, Decided: April 06, 2011.
• 12 Jones p. State of Arkansas, No. 01-695, Decided: January' 17, 2002.
• 13 Anthony D. Elonis v. United States for America, AMICI CURIAE BRIEF OF THE THOMAS JEFFERSON CENTER FOR THE PROTECTION OF FREE

EXPRESSION, THE MARION B. BRECHNER FIRST AMENDMENT PROJECT, AND THE PENNSYLVANIA CENTER FOR THE FIRST AMENDMENT IN SUPPORT OF THE PETITION FOR A WRIT OF CERTIORARI (No. 13-983), available at: http://firstamendment.jou.ufl.edu/pubs/ElonisAmicusBrief.pdf (last accessed: 05/27/2019).

Op. cit., 4.

Op. cit., 12.

Nielson in an interview on NPR.

Elonis, AMICI CURIAE BRIEF, 8; see also Brent Wood, “Understanding Rap as Rhetorical Folk-Poetry”, Mosaic 32, No. 4 (December 1999), 129-46.

See supra Chapter 1, Section V.

Ibid.

On the question of assertion vs. non-assertion: cf. Chapter 1, Section V.

Tricia Rose, The Hip Hop Wars: What We Talk About When We Talk About Hip Hop—and Why It Matters (New York: Basic Civitas, 2004), cited in the amicus brief on p. 14.

Charis Kubrin and Erik Nielson, “Rap on Trial”, Race and Justice 4 (2014), 190.

PBS Newshour, June 29, 2014, transcript available at: www.pbs.org/newshour/ show/rap-lyrics-used-evidence-court (last accessed: 02/05/2019).

Elonis, AMICI CURIAE BRIEF, 15.

Elonis, AMICI CURIAE BRIEF, 15; Kubrin, “Rap on Trial”, 197.

Searle is one of the strongest proponents of a clear distinction between fictionality and literariness (John Searle, “The Logical Status of Fictional Discourse”, New Literary History 6, No. 2 (1975), 320). Although Searle’s criterion for fictionality is disputed, the necessity to distinguish fictionality and literariness seems to be majorly accepted - e.g. by Tzvetan Todorov, who claims fictionality is neither a necessary nor a sufficient condition of literature (cf. Beardsley, “Aesthetic Intentions and Fic-tive Illocutions”, 172; see supra Chapter 1 note 3 and 4 and accompanying text). Dennis, “Poetic (In-)Justice”, 20.

Rap “requires some level of expertise to be fully understood”, p. 10 of the brief. Elonis, AMICI CURIAE BRIEF, 3.

Op. cit., 5, 10.

Op. cit., 9.

BRIEF OF AMICUS CURIAE AMERICAN CIVIL LIBERTIES UNION OF NEW JERSEY IN SUPPORT OF DEFENDANT RESPONDENT, State of New Jersey v. Vonte L. Skinner, A-57/58-12 (071764), 8-9.

Russell A. Potter. Spectacular Vernaculars: Hip-Hop and the Politics of Postmodernism (Albany: State University of New York Press, 1995), 2.

Just to name a few: Eithne Quinn, Nuthin’ but a “G” Thang: The Culture and Commerce of Gangsta Rap (New York: Columbia UP, 2004); Id., “Who’s the Mack?: The Performativity and Politics of the Pimp Figure in Gangsta Rap”, Journal of American Studies 34, No. 1, 115-36; id., Representing and Affronting: The Politics and Poetics of Gangsta Rap Music (Keele University [Diss.] 1999); Candice M. Jenkins, “Introduction: ’Reading’ Hip-Hop Discourse in the Twenty-First Century”, African American Review 46, No. 1 (Special issue: Hip Hop and the Literary, Spring 2013), 1-8; Denise Herd, “Changing Images of Violence in Rap Music Lyrics: 1979-1997”, Journal of Public Health Policy 30, No. 4 (December 2009), 395-406; Ralph M. Rosen and Donald R. Marks, “Comedies of Transgression in Gangsta Rap and Ancient Classical Poetry”, New Literary History 30, No. 4 (Autumn, 1999), 897-928; James Peterson, ‘“Dead Prezence’: Money and Mortal Themes in Hip Hop Culture”, Callaloo 29, No. 3 (Hip-Hop Music and Culture, Summer, 2006), 895-909; Gwen Hunnicutt and Kristy Humble Andrews,

“Tragic Narratives in Popular Culture: Depictions of Homicide in Rap Music”, Sociological Forum 24, No. 3 (September 2009), 611-30; Mtume ya Salaam, “The Aesthetics of Rap”, African American Review 29, No. 2, Special Issue on The Music (Summer, 1995), 303-15; Greg Dimitriadis, “Hip Hop: From Live Performance to Mediated Narrative”, Popular Music 15, No. 2 (May 1996), 179-94.

African American Review 46, No. 1, Special Issue: Hip Hop and the Literary (Spring 2013)

Rose, loc. cit.

Imany Perry, “Prophets of the Hood: Politics and Poetics in Hip-Hop”, cited in Elonis, AMICI CURIAE BRIEF, 13.

Alexander, cited in Skinner, AMICUS CURIAE BRIEF, 8

Skinner, AMICUS CURIAE BRIEF, 8 (now citing Dennis)

Skinner, AMICUS CURIAE BRIEF, 9.

Cf. Begonya Enguix, “Male Bodies and the Black Male Gaze: Is There a Cultural Interpretation of Masculinities?”, in: African Realities: Body, Culture and Social Tensions, ed. Josep Marti (Newcastle upon Tyne: Cambridge Scholars, 2014), 114. Charts Kubrin, “Gangstas, Thugs, and Hustlas: Identity and the Code of the Street in Rap Music,” Social Problems 53, No. 3, 360-78.

Skinner, AMICUS CURIAE BRIEF, 11-15.

Rose, op. cit.

Kubrin, “Rap on Trial”, 193.

It is, however, highly disputed whether clear textual markers (or “signposts”) for fic-tionality exist, or whether fictional discourse is a merely pragmatic feature, making it impossible to discern the question of fictionality from the syntactical form or propositional content of an utterance alone. Cf. Dorrit Cohn, “Signposts of Fictionality. A Narratological Perspective.” Poetics Today 11, No. 4 (Winter 1990), 775-804, as well as supra Chapter 1, note 300.

Searle, “Fictional Discourse”, 330.

For speech act theorists as Searle the label is “serious”, not “true” (since only assertions can be true). Courts however treated the matter under the question of truth (“true threat”, etc.)

US v. Elonis, No. 12-3798, Decided: October 28, 2016, at I.

On p. 16, the court, however, clearly saw the issues at stake when stating “we read ‘statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence’ to mean that the speaker must intend to make the communication”.

As already said (supra note 48), courts usually use the inadequate term “true” in this context, instead of the label “serious” (which would be the correct terminology according to speech act theory). What they, however, correctly investigate, is the issue, whether the utterance in question was meant or had to be understood by the recipient as being “serious” - thus they correctly investigate the illocutionary status of the speech act in question.

Cf. supra Chapter 1 note 300 and infra Chapter 5.2 note 163 (and accompanying text).

A-5365-14T2 (decided August 04, 2014).

Skinner, AMICUS CURIAE BRIEF, 5.

Skinner, AMICUS CURIAE BRIEF, 4.

Skinner, AMICUS CURIAE BRIEF, 8-9, 11

State v. Skinner, V.A. at para 9.

Cf. Ummni Khan, “An Incitement to Rapey Discourse. Blurred Lines and the Erotics of Protest”, in Synesthetic Legalities: Sensory Dimensions of Law and Jurisprudence, ed. Sarah Marusek (London/NY: Routledge, 2016), 200-13; id., “Fetishizing Music as

Rape Culture”, Studies in Gender and Sexuality 18, No. 1, 19-30; Eve Kosofsky Sedgwick and Adam Frank, “Paranoid Reading and Reparative Reading, Or, You’re So Paranoid, You Probably Think This Essay Is About You,” in Touching Feeling: Affect, Pedagogy, Performativity (Durham: Duke UP, 2002).

• 59 Eve Kosofsky Sedgwick, cited in Khan, “Incitement”, 201.
• 60 Khan, “Incitement”, 201-2.
• 61 Khan, “Fetishizing Music”, 19.
• 62 Khan, “Incitement”, 202, 210.
• 63 Which is inconsistent, since legal theory addressed the field of linguistics early, including speech act theory. Cf. Chapter 1, notes 227, 285-6 and Chapter 5.2 notes 37 and 39 (and accompanying text).
• 64 Dennis, “Poetic (In-) Justice”, 13.