The Volokh Conspiracy

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Free Speech

"Mistaking Inferences for Penalties"


A very interesting post from Prof. Sherry Colb (Cornell) at Dorf on Law, discussing the "Court Should Start with a Presumption That Art Is Art, Not a Statement of Fact" (Bey-Cousin v. Powell) case; the whole thing is worth reading, but here's an excerpt:

The case involves a man who had some trouble with the law and whose criminal conviction was reversed on appeal. The man brought a civil rights lawsuit claiming, among other things, that police planted a firearm on him. In defending the lawsuit, police wish to introduce into evidence the lyrics of some songs that the plaintiff wrote. Police believe the lyrics undermine the plaintiff's version of events and support the defendants' narrative.

The district court in the case ruled that the song lyrics would be excluded. I have no opinion on whether the particular lyrics should come into evidence or were properly excluded. In so ruling, however, the court invoked the First Amendment right to free expression in the arts. The court said that if an artist's lyrics were freely admissible against him in court, then that admissibility would have a chilling effect on artistic expression. In response to this constitutional concern, the court ruled that before being able to introduce an opponent's lyrics into evidence, the proponent must overcome a presumption that artistic expression is not factual. Furthermore, the court held, it is not enough to show a resemblance between events in the real world and the statements of the artist in his music or other artistic expression.

I have written about the difference between protecting the freedom of speech, on the one hand, and refusing to admit that speech as evidence of other wrongdoing in a court of law, on the other, here. An artist is free to write songs about his encounters with the law and with other people and to fictionalize those songs to his heart's content. But that freedom does not entail a right to suppress relevant evidence of wrongdoing in a lawsuit. He can, of course, argue that a particular piece of evidence, a song, is far more likely to prejudice the jury against him than it is to shed light on what he actually did. The district court did say that such a balance would favor exclusion in this case. But the court appeared to go further than that, asserting that in many cases, relevant evidence that could illuminate the facts for the jury would not come in, asserting 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." …

Almost everything that goes into evidence in a court case consists of words or expression of one kind or another. If we were to take seriously the idea that the admissibility of speech imposes a presumptively impermissible chilling effect on free expression, then our generally liberal admissibility approach under the Federal Rules of Evidence would morph into a system in which all evidence would be presumptively inadmissible. This regime would completely undermine the principle that the law has a right to "everyman's [sic] evidence."

The court gives a few examples of fictional works of art that have no bearing on reality. One is "I Shot the Sheriff" … Another example is Bohemian Rhapsody by Freddie Mercury and Queen, who were not confessing to mama that they killed a man. Of course, no one ever thought that these works of art corresponded to events in the real world, and their authors were probably not afraid that the songs might become evidence against them.

Statements that people make outside of the artistic area are far more likely to become evidence against them than are song lyrics and therefore much more vulnerable to the chilling effect that the district court discusses. The district court, however, seems to focus exclusively on artistic expression rather than on all speech protected by the First Amendment, perhaps because it correctly understands that a system in which evidence comes in to prove facts requires access to speech and words as proof, regardless of how free that speech might be and how protected from punishment. Artistic expression is, of course, part of the freedom of speech, but the First Amendment does not single it out for special protection and indeed does not say anything about it at all….