On September 30, 2022, Governor Gavin Newsom signed into law the Decimalizing Artistic Expression Act. This legislation is designed to protect the expression rights of an artist vis-a-vis their lyrics, from use as evidence in a criminal case. The legislation is in response to high-profile cases that involved artists who had their lyrics used as evidence in a trial against them, ranging from assault to fraudulent business activities via federal legislation is known as the RICO (Racketeer Influenced and Corrupt Organizations) Act.
Although this legislation protects the rights of artists, it doesn’t protect categories of speech that are either not secured by the first amendment (hate speech). In other words, this legislation states that artistic expression or views have limited evidentiary value. Prosecutors now must show that lyrics used have a direct “link” to a specific crime.
Much of the history of rock music, especially heavy metal and hip-hop, has faced criticism based on lyrical content. Three decades ago, the Parents Music Resource Council linked, in one case, the lyrics of Black Sabbath to the “Son of Sam” serial killer, David Berkowitz, who listened to their music. Numerous scholars have written on the possible links between music, especially hip-hop, and violent crime. Ranging from direct correlation (Chen, Meng-Jinn, et al. “Music, substance use, and aggression.” Journal of studies on alcohol vol. 67,3 (2006): 373-81.)
to no link (Fearing, A., Konkle, T. R., Laitsch, J., Pierce, H., Rater, C., Reece, K., Stoecker, R., & Varelis, T. (2018). Is Hip-Hop Violent? Analyzing the Relationship Between Live Music Performances and Violence. Journal of Black Studies, 49(3), 235–255.) and in between (Gardstrom S. C. (1999). Music Exposure and Criminal Behavior: Perceptions of Juvenile Offenders. Journal of music therapy, 36(3), 207–221.) research continues to debate this important issue.
Although the bill was written with hip-hop in mind, the application of the law affects multiple sectors of the entertainment industry. For creators who use contemporary topics, this legislation strengthens their ability to write and comment on society without the threat of prosecution. As for classical artists, the legislation is another step toward freedom of speech protections central for works that are set within contemporary times or topics. One example is John Adam’s controversial opera, “The Death of Klinghoffer.” Adam’s work questioned geopolitical themes, namely the Israel/Palestine conflict and terrorism. Given the post-911 environment, this opera courted controversy, leading to performances being canceled because many critics saw it as “romanticizing terrorists”. (Taruskin, R. December 9, 2001, Music’s Dangers and the case for control. The New York Times.) Other works and productions (Calixto Bieito’s production of Shostakovich’s Lady Macbeth of Mtsensk or Jeanine Tesori’s opera “Blue”) have also pushed the boundaries of public opinion. In their new term, the Supreme Court will hear several cases dealing with the first amendment. An important case is Netchoice LLC v. Paxton which prohibits social media platforms from censoring users based on viewpoints. Furthermore, congress is examining freedom of speech legislation via the RAP (Restoring Artistic Protection) Act. The question of artistic expression and first amendment rights is still a work in progress.
The Analytical Musician 