Free Speech

"Court Should Start with a Presumption That Art Is Art, Not a Statement of Fact"

When should rap lyrics (or other works) be admissible as evidence on the theory that they reflect real events?


From Bey-Cousin v. Powell, decided Tuesday by Judge Joshua Wolson:

Vincent Van Gogh summarized an artist's inspiration: "You must start by experiencing what you want to express." But while many artists base their art on experience, they also embellish, change, or distort their experience for purposes of their craft. The question before the Court is whether a party to a lawsuit can use an artist's expressions against him as evidence of the truth. And the Court's answer is, "Not always."

In a society that treasures First Amendment expression, courts should start with a presumption that art is art, not a statement of fact. To rebut that presumption, the party offering the evidence must demonstrate that the art is the artist's attempt to tell a factual story. The mere fact that an artistic expression resembles reality is not enough because holding otherwise would risk chilling the free expression that our society holds dear.

Muadhdhin Bey-Cousin is one such artist. As a budding hip/hop rap artist, he released an album called "Busted by Da Fedz Vol. 1" while facing gun possession charges. Now, Defendants Ernest Powell and Phillip Cherry want to use Mr. Bey-Cousin's lyrics against him. But Officers Powell and Cherry have not put before the Court enough facts to rebut the presumption that Mr. Bey-Cousin's lyrics are art. The Court will therefore exclude them from the trial in this case….

Late in the evening on March 28, 2016, two officers in the Philadelphia Police Department heard a call for back-up which included a description of a 160-170 pound, 21-year-old, light-skinned African American man with minimal facial hair who was wearing dark blue pants and a red hooded sweatshirt (or red jacket). In response to that call, those officers, Defendants Ernest Powell and Phillip Cherry, stopped Mr. Bey-Cousin, a 200 pound, 32-year-old, dark-skinned African American man with a long beard who was wearing black sweatpants and a red puffer jacket. That stop led to an arrest and conviction in federal court for being a felon in possession of a firearm. Mr. Bey-Cousin remained incarcerated from March 28, 2016, until December 2018, when the Third Circuit vacated the conviction. Mr. Bey-Cousin alleges that Officers Powell and Cherry planted a firearm on him during the arrest. In his Complaint, he asserts violations of 42 U.S.C. § 1983 for malicious prosecution and malicious use and abuse of process….

Officers Powell and Cherry assert the songs describe the facts at issue and suggest that the Court permit them to cross-examine Mr. Bey-Cousin about the lyrics. Officers Powell and Cherry also argue that the jury should hear Mr. Bey-Cousin's lyrics to assess Mr. Bey-Cousin's claim for damages based on harm to his career….

Under Federal Rule of Evidence 104(a), a court must decide any preliminary question about whether evidence is admissible. Evidence is relevant if it has "any tendency to make a fact more or less probable than it would be without the evidence." When the relevance of evidence depends "on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist." The Parties have not identified, and the Court has not found, a case that sets forth a rule to determine when artistic expression is relevant. In determining whether an artistic expression is relevant, the Court finds guidance in Federal Rule of Evidence 102, which directs courts to construe the Rules of Evidence "so as to administer every proceeding fairly … to the end of ascertaining the truth and securing a just determination.

These rules require the Court to start with a presumption that artistic expression is not factual, for two reasons. Artists might base their work on real life, but they take creative liberties that blur the line between fact and fiction. Embellishment and fictional elements pervade, even when the artist draws on real world experience for inspiration. Thus, the introduction of artistic expression as a party admission will often not further the end of ascertaining the truth.

In addition, if artists or budding artists know that their expression might put them in legal jeopardy, they might put down their pens, pocket their paintbrushes, or bite their tongues. As a society, we encourage that type of expression. A rule that discourages it would not be just, either to the parties or to the broader public. The Court recognizes that starting with a presumption that artistic expression is not a factual admission might in some cases lead to the exclusion of admissible evidence. But the First Amendment requires no less.

To overcome that rule, the proponent of evidence must offer some preliminary indicia that the artistic expression is a truthful narrative, like the inclusion of factual detail that is not publicly available. In an effort to meet that burden, Officers Cherry and Powell point to the "seemingly autobiographical details involving the arrest and prosecution at issue in this case." But their own words betray them: a "seemingly" autobiographical work is not necessarily autobiographical.

First, it is not enough just to show that an artist used the first person. Artists use the first-person as a tool of creative expression, sometimes to describe themselves, sometimes to describe a fictionalized version of themselves, and sometimes to describe a fictional character. Freddy Mercury did not confess to having "just killed a man" by putting "a gun against his head" and "pull[ing] the trigger." Bob Marley did not confess to having shot a sheriff. And Johnny Cash did not confess to shooting "a man in Reno just to watch him die."

Second, it is not enough to show that an artist's expression bears some resemblance to real life events. Writers ripped Law & Order's scripts from the headlines, but they disclaimed, "The following story is fictional and does not depict any actual person or event." The People v. OJ Simpson and The Assassination of Gianni Versace, two American Crime Stories, depicted real events, but were not necessarily factual retellings.

Third, it is not enough even to show that an artist wrote in the first person about events that resemble real life. Examples abound. In the television series The Goldbergs, Adam Goldberg chronicles his childhood exploits, with video excerpts at the end showing the real-life events that inspired the episode. Still, no one understands the show to be an accurate representation of events. The movie Captain Phillips depicts acts of heroism, but at least some reports suggest that it embellishes the events to favor Captain Phillips himself. Likewise, Eight Mile appears to be an account of Eminem's youth in Detroit, but in fact it is a fictionalized account that bears parallels to his real experience. And musically, when Calvin Broadus (aka Snoop Dogg) released "Murder Was the Case" after his prosecution for the murder of a rival gang member, he did not suggest that he was confessing to a version of events other than what he presented at trial.

Officers Cherry and Powell argue that the Court should permit the jury to sort out whether Mr. Bey-Cousin's lyrics are factual or fictionalized. But doing so would not be a search for truth. It would instead be a trial about an artist's process, asking the jury to decide where the line is between inspiration and narration. Rule 102 does not contemplate such a trial issue. Nor does Federal Rule of Evidence 403, which permits a court to exclude otherwise relevant evidence if the danger of undue delay and a waste of time substantially outweighs the probative value. The collateral inquiry into Mr. Bey-Cousin's artistic process would substantially outweigh the probative value that his lyrics offer….

As a society, we have decided to encourage free expression in all its forms. The Court will not adopt a rule that might undermine that goal. It therefore adopts a rule that presumes that artists tell stories, even when they draw inspiration from reality. Officers Cherry and Powell have not overcome that burden, so the Court will grant Mr. Bey-Cousin's Motion and preclude evidence of his lyrics….

NEXT: "Zombie" Voting at the Federal Trade Commission

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  1. Murderuss (snoop dogg) wrote rap lyrics that matched the crime perfectly (as fictionally portrayed on Monk), but Murderuss was totally framed!

  2. Just for the record, 'Puff the Magic Dragon' is a children's fantasy song, not a drug song.
    The author told me himself.

    Now, 'tea for two', 'the green green grass of home', and 'smoke gets in your eyes'; that is something else.

    1. Don't forget the old kids' show about a magic dragon named Puff. But they couldn't rip off the name, so they called him H.R. Puffinstuff.

      They never said what stuff he puffed.

  3. Sounds like this.

  4. Sounds like the right decision to me.

  5. Would this same logic apply to jokes even if just said at a dinner party? What about boasting and bragging? In all of them individuals embelish situations for a desired purpose and what ever fact it contains is hard to discern. I'm very pro first amendment but this seems like the thing that is supposed to be left to the jury. The offering party can enter it asserting it is fact and the part that said it can argue otherwise that it was just artistic expression and the jury determines who is telling the truth.

    1. It is not really a First Amendment case, but rather a pretty straightforward FRE case, and those usually are decided by the judge.

      1. Yes but the judge typically only determines if it is relevant which is very broad and doesn't have this presumption. So unless he is ruling the prejudicial value is more than the probative, which I didn't see mentioned, then this requires a more narrow view of relevance than I think the FRE commands

  6. Mama, just killed a man
    Put a gun against his head
    Pulled the trigger, now he's dead


    I shot a man in Reno, just to watch him die.

    1. I shot the sheriff
      But I did not shoot the deputy

      1. The old man's hour had come! With a loud yell, I threw open the lantern and leaped into the room. He shrieked once — once only. In an instant I dragged him to the floor, and pulled the heavy bed over him. I then smiled gaily, to find the deed so far done.

        1. If you see me comin', better step aside
          A lotta men didn't, a lotta men died
          One fist of iron, the other of steel
          If the right one don't a-get you
          Then the left one will

          1. Cuz gangsta-ass [bleep]s be the game playas
            And everythings quiet in the clique
            A gangsta-ass [bleep] pulls the trigger
            And his partners in the posse ain't tellin' off shit
            Real gangsta-ass [bleep]s don't talk much
            All ya hear is the black from the gun blast
            And real gangsta-ass [bleep]s don't run for shit
            Cuz real gangsta-ass [bleep]s can't run fast

            1. Running,
              On our way
              You will pay
              One thousand deaths
              On our way
              You will pay
              One thousand deaths
              Seek and Destroy
              Seek and Destroy
              Seek and Destroy
              Seek and Destroy

              1. I stuck around St. Petersburg
                When I saw it was a time for a change
                Killed the Tzar and his ministers
                Anastasia screamed in vain

      2. I'm breakin' rocks in the hot sun
        I fought the law and the law won
        I fought the law and the law won

        I needed money 'cause I had none
        I fought the law and the law won
        I fought the law and the law won

        Robbin' people with a six-gun
        I fought the law and the law won
        I fought the law and the law won

    2. And I turned twenty-one in prison doing life without parole
      No one could steer me right, but Mama tried, Mama tried

    3. Once two strangers climbed ol' Rocky Top
      Lookin' for a moonshine still
      Strangers ain't come down from Rocky Top
      Reckon they never will...

  7. Seems like when folks say, "Start with a presumption . . . ," they often mean finish that way too.

  8. Seems to me that the judge has just discovered a new rule for "artistic expression."

    The principle, if there is one, seems to be that Party X can't examine whether what Party Y said was meant as a statement of fact, by questioning him, unless Party X can first establish that it was indeed meant as a statement of fact, by some other means.

    Logically if this is a real rule, something similar would apply to any statement which might not be meant as a statement of fact. Like a lie, or a joke, or a mistake, or a misspeak.

    So do such rules exist ? Does the defendant have to produce evidence proving that the plaintiff's statement was not a lie or a joke or a mistake or a misspeak, before he's allowed to question the plaintiff as to whether his statement was a lie or a joke or a mistake or a mispeak ?

    But if you can already prove that - without questioning the plaintiff - when are you ever going to need to question the plaintiff ? You don't need him. Because you can already prove his words were sincere. If you can.

    So there would never be occasion to question someone in court about whether what they had said was what they had meant. Do other judges know this ? Has this judge found a brilliant new way of cutting the courts' workload in half ?

    1. It's a rebuttable presumption.

      Let's say some song writer writes a song about a nominally fictional crime. Presumed fictional, even if there was a similar crime they *might* have been involved in.

      Now, suppose the song reveals details of the crime that the police have not disclosed? That could be used as evidence that the song is NOT art, but effectively a confession, because an innocent song writer wouldn't have known those details.

      1. That's not my point. My point is - what's special about "art" ? Why would there be a specially constructed presumption that art is not always intended as truth, when pretty much any other kind of expression is not always intended as truth ?

        Suppose I write an email to my friend saying "Yeah I killed that ho, stuck a knife in her. Thought about stealing her cute little silver handbag, but decided against."

        Also suppose that all those details are publicly available.

        Now, given that people sometimes lie when they're writing emails to friends, the question is - can my email be used in evidence, either in a criminal or a civil trial, without further ado ?

        Or does the other side in the trial first have to produce some evidence, other than the email itself, proving that what I said in my email was not a lie ? And only then can they use my email.

        And if not why not ? People don't always tell the truth in emails, and art is not always verite. If the latter requires a "prove this art is verite (without using the art itself as your proof) before you use it in court" then why would the former not require a corresponding rule "first prove the email isn't a lie (without using the email itself as purported proof) and only then can you use the email ?

        1. En passant I might ask whether the presumption that "art is art, not a statement of fact" would extend to questions of probable cause.


    I'm trying to find out an answer to a simple question, but I'm finding it surprisingly difficult, because the search engines keep misinterpreting the question. Which is:

    Suppose a state, or the Federal government, were to pass a law forbidding a specified set of women (maybe women with a history of drug abuse during pregnancy, or child abuse, or a large number of violent, or very serious, felonies, or something like that) to obtain prenatal or obstetric care, and/or forbid health-care professionals to provide prenatal or obstetric care for those women. Would this law be constitutional or unconstitutional, in Federal courts? If it would be unconstitutional, what part of the Constitution and/or precedent decisions would it violate?

    Anyone? Preferably someone who knows something about this?

    (The search engines swamp me with tangential stuff: history of eugenics, abortion jurisprudence, the problems getting informed consent for medical procedures from cognitively-impaired patients who are pregnant, sterilization, China and her family-size-limit policies, fetal protection laws from outside criminal aggressors, laws against pregnant women endangering their fetuses by doing drugs or drinking alcohol, everything except what I'm trying to learn. To understand what I'm asking about (if I haven't made it clear), just start with one of the states' bans on (most) abortions which SCOTUS is soon going to decide, and cross out every occurrence of "procure/abet/obtain/perform/provide/assist an abortion" and replace it with "procure/abet/obtain/perform/provide/assist birthing/obstetric care or prenatal care for a woman who has the particular condition or history to which the hypothetical law applies". Would the result be constitutional, or unconstitutional? If unconstitutional, how and why?)

    Thanks in advance.

    1. PS. Obviously, the current right to privacy would render the hypothetical ban unconstitutional. But that right is at risk of being severely reduced or eliminated altogether (as Clarence Thomas has advocated, many times). So, I'm asking if there is any jurisprudence other than the right to privacy, which would render such a ban unconstitutional.

      1. As far as the federal government was concerned, you'd have obvious enumerated powers issues, outside of limited contexts like military hospitals or DC.

        As far as both the federal government and states were concerned, the problem would be that such a law wouldn't pass even rational basis review, because it's batshit crazy. And rational basis applies even to laws that don't implicate constitutional rights.

        What government interest do you suppose is advanced by identifying women at a heightened risk of problem pregnancies, and specifically denying them pregnancy related healthcare? In theory ALL laws have to, at least in somebody's fevered imagination, advance some legitimate government end.

        It's a terrible analogy to the Texas law, because the Texas law does advance an identifiable government interest: Fetal welfare. It may be an interest the Supreme court has denied overcomes the mother's interests early in pregnancy, but it obviously exists, and the law furthers it. Your suggested law don't have that feature.

        1. Fetal welfare. It may be an interest the Supreme court has denied overcomes the mother's interests early in pregnancy, but it obviously exists, and the law furthers it.

          Would that not be begging the "legitimate interest" question ? A court might reject "fetal welfare" as a legitimate government interest, and who could say that it would be wrong, since there don't seem to be any standards for legitimacy.

          Once upon a time "three generations of imbeciles are enough" leapt over the legitimacy hurdle wearing riding boots and a top hat. Now probably not. But the only thing that has changed since then is the positioning of the Overton window.

        2. Thank you. A government, or the people of a state, might think they have an interest in stopping some women from breeding, and forbid providing obstretric/pregnancy-care, in order to discourage the women from breeding. That’s what I was thinking. It would be a back-door way for the state to implement coercive family limit policies.

    2. No need for a search engine.
      To be constitutional, that kind of law has to pass a two part test; first, the group of women must be white, and second, the law must be passed by democrats.

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