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Posted on Friday, January 23, 2015

Could Rappers Face Jail Time Over Lyrics?

San Diego-based rapper Tiny Doo, whose real name is Brandon Duncan, faces prosecution on nine counts of alleged criminal street gang conspiracy, which collectively carry a sentence of 25 years to life in prison. The charges arise from a rash of shootings in California that were allegedly carried out in 2013 by the Lincoln Park gang, of which prosecutors allege Duncan is a member. Duncan does not have a criminal record, and prosecutors haven’t even suggested that Duncan pulled a trigger or was involved in any shootings. The charges against him are simply based upon rap lyrics that the district attorneys allege helped increase the Lincoln Park gang’s stature in the San Diego gang community.California Penal Code § 182.5 makes it felony for any member of a criminal street gang to benefit in any way from the felonious conduct of any other gang member. Duncan’s album “No Safety,” which includes lyrics such as “ain’t no safety on this pistol I’m holding,” was released shortly before the shootings, and prosecutors now allege that receiving income from album sales and intangible benefits such as increased stature in the gang community somehow provide a basis to charge Duncan with felony conspiracy despite his lack of involvement in the shootings. According to Duncan, he’s just using rap lyrics to paint a picture of urban life. “The studio is my canvas. I’m just painting a picture,” he said in an interview with CNN.

In order for the government to win its case, it will have to prove that Duncan was actually a member of the Lincoln Park gang, that he knew about the gang’s involvement in criminal activities, and that he benefited in some way from the felonious activities of other gang members, whether or not he was directly involved. The most disturbing part of this whole case is that the prosecution’s efforts to turn Brandon Duncan, rapper, into Brandon Duncan, convicted felon, hinge on the state’s opinion that the “No Safety” lyrics were somehow connected to the criminal activities of the Lincoln Park gang. Had Duncan’s album been about sunshine and rainbows instead of urban street life, he’d be busy recording his next disc instead of facing nine counts of felony conspiracy in a criminal prosecution over song lyrics.

If it sounds to you like this law is at odds with the First Amendment right to freedom of speech, you’ve got a good point. While it is noble of the district attorney’s office to try to crack down on the glorification and glamorization of violent gang activity, the prosecutors in this case are sure to face a high Constitutional hurdle in their efforts to turn rap lyrics into a life sentence. In the meantime, rappers, lyricists and songwriters should keep a close eye on this case; with the criminalization of lyrics at stake, the outcome of Tiny Doo’s case could have a profound effect on the entire music industry.

Frank Gulino is an award-winning composer and attorney with Berenzweig Leonard, LLP. He can be reached at FGulino@BerenzweigLaw.com.

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