Music Can Still Get You Arrested in 2014

I’ve always thought of music as an escape. Regardless of how I feel, or what I’m going through, music has always provided a safe space where I can sit back, reflect, or just try to forget the world around me.

Music, in other words, sets me free.

I’m not alone in this, since for many people music represents precisely that, a refuge from their problems. Music, like most types of art, also allows the artists to reflect on their surroundings and maybe even protest against the injustices that they perceive. For them, music is liberty; it’s their way to channel their feelings, experiences, and even their inner demons, in a manner that others can relate to.

Sometimes, however, the state wants to stop that liberty from flourishing.

The California Penal Code, in article 182.5, which is aimed at cracking down on gang violence, establishes that

“. . .any person who actively participates in any criminal street gang [as defined by statute] with knowledge that its members engage in or have engaged in a pattern of criminal gang activity [as defined by statute] and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony . . . .”

If you are just a regular person, you’re thinking that this law can only be construed in a way that punishes people who are directly related with the commission of a crime. In other words, it must be aimed at punishing those gangbangers who kill, steal, traffic drugs, pimp out women, etc., or who are directly related with the commission of those crimes.

Well, that’s not how a California prosecutor understood it. Right now, sitting in a jail cell, is a man called Brandon Duncan, also known by his rapper name Tiny Doo, who was arrested and indicted in relation to a series of gang incidents from 2013. He risks spending the rest of his life in prison. He is not accused of committing any specific act, but rather of conspiring to be a gang member, and of benefiting from the gang’s activities.

According to my fellow attorney Ken White:

  • The DA’s theory is that Duncan promoted the gang by writing rap music about gang activity, and that he received an “intangible benefit” — their words — by his music becoming more credible or popular. The DA did not present any evidence that the gang’s crimes had any impact on album sales.

  • The DA tried to show that Duncan was a member of the gang by some photos of him with gang members throwing gang signs. But they asserted that his rap music also showed that he participated in the gang, one of the elements of the offense.

  • The DA’s theory is that when a gang commits a crime all members of the gang automatically benefit for purposes of Section 182.5. That theory, if accepted, would effectively eliminate one of the elements of the crime so that the DA would no longer need to prove that any individual gang member “willfully promotes, furthers, assists, or benefits from” the criminal activity.

“In short”, says Ken White, “based at least on reports of their stance at the prelim, the DA seems to be saying that Duncan violated the statute by being a member of the gang and by rapping about the gang.”

Although I have a very hard time thinking that, if this prosecution is indeed based at its core on Duncan’s music, these charges, let alone a conviction, would resist any sort of constitutional scrutiny (Americans do have the benefit of the 1st Amendment, protecting Freedom of Speech) I still see this accusation as a very dangerous move on the part of the state.

As I have mentioned plenty of times before, recently there have been a number of attempts to criminalize expression all over the world. In many, if not all, of these cases, the basis for the accusations are not actual criminal acts, but rather the “potential” that the expression has to actually materialize in some sort of crime, real or otherwise. So, for example, when Varg Vikernes was arrested in France his blog was used as the “evidence” that demonstrated that he was the kind of person who could one day be a terrorist; something similar happens in Germany, where the Criminal Code punishes those whose speech “is capable of disturbing the public peace”. Here, the issue is not what actually happens, but what could happen.

Tiny Doo promotes a gang; Varg sounds like a terrorist. For some, that alone means they belong in jail.

But is this really the way we should go?

I consider myself, and I say this with absolute pride, a free speech fundamentalist. An extremist if you will. I believe that authorities have absolutely no right to decide what we can say, view, read or create, and that any attempt to the contrary must be fought head-on. This is, in my opinion, not debatable. The moment we allow any authority to police expression is, without a doubt, the first step into creating a submissive, if not subjugated, population.

Of course, some might think that perhaps rap is different. After all, some of it is called “gangsta” rap for a reason. Many rap artists have been associated with known criminals, and some have even committed crimes themselves. Why shouldn’t we punish their profiteering?

To put it bluntly, because that’s a door I’m not sure we can close once it’s opened.

When we analyze art out of its context it’s hard to understand what is being said, or the reasons why it’s said. Take the case of James Evan, who spent 8 days in prison after being arrested for threatening to kill children at a local school…. Because that’s how the police interpreted his Facebook post quoting the lyrics to Exodus’ “Class Dismissed (A Hate Primer)”. He is currently in liberty, although under the obligation to undergo a mental evaluation. If he complies with everything, the charges will be dropped in the next hearing. All of this, for quoting a song. It is apparently nothing short of a miracle that Exodus themselves, who authored the song, were not sitting next to him in jail.

The judicial system is well aware of the risks of taking music out of context and to try to build a case around it. Earlier this year the New Jersey Supreme Court ruled that rap lyrics written by a man accused of murder, and which were apparently unconnected with the crime (which happened years after he penned them) could not be used as evidence for the accusation, since it’s hard to prove that artistic expression equals action. In a humorous decision, the Court ruled that

“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.”

I think they said it better than I possibly could.

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Considered by his mother as the brightest and prettiest boy, J’s interest in metal started in his early teens, listening to bands like Iron Maiden and Metallica (coupled with an embarrassing period in which Marilyn Manson “totally represents me, man”) eventually moving into the realm of power, black, and death metal.
He holds a PhD in law, trains martial arts, practices law, and enjoys coming up with excuses as to why he has to miss work after going to a concert. He also dabbles as a concert photographer, you can see his sub-par work on his instagram.

  • marious

    This is a major problem, because it is becoming more and more socially promoted to be overly politically correct, to “self-censor”, or simply remain quiet in the face of injustice because “stirring the pot promotes more violence”. As people give in to such things willingly it becomes easier for this sort of crap to become legal as well, because who’s going to oppose a law they forced upon themselves first?