Tuesday, December 22, 2015

Taylor Bell's Message Really Is Getting Out, All-Star List of Rappers, Professors, and Others Join His First Amendment Plea to the Supreme Court

Somewhat in jest, my earlier posts said that Taylor Bell really knows how to get his message out.  Taylor Bell is  a high school student who was suspended and sent to alternative school for writing and posting a rap song to the internet that outed coaches at his school who were accused of sexually harassing students.  It now seems that he really did pick the perfect medium and genre to do so.  Grammy award winning musicians have filed a brief in his support, upping the profile of the case even more and a potentially nudging the scales toward a grant of certiorari that would decide key speech issues in school that the Court has conveniently avoided for several years.  Among the most notable names on the brief is Michael Render (aka “Killer Mike”). Cribbing from the brief: "His recent album with rapper and producer El-P, Run the Jewels 2, was the most critically acclaimed record of the year in 2014. When he isn’t recording or performing, he can be found in television studios or university lecture halls talking about a wide range of issues, particularly those related to race and social justice. He performs as Killer Mike—but for this brief, in particular, it probably is worth noting that he has never actually killed anyone."

They summarize their argument this way:

This Court should grant certiorari because the Fifth Circuit’s decision effectively denies First Amendment protections to rap music, arguably the  most influential musical genre of the last 50 years. Using rap as his voice of protest, Taylor Bell recorded a song calling attention to serious problems facing students at his school.  

In its ruling, the Fifth Circuit focused on the violent rhetoric in Bell’s song. Although the lyrics cited in the ruling are commonplace in rap and reflect some of the genre’s most basic conventions, the Fifth Circuit ruled that they were “threatening, harassing, and intimidating.” As a result, the Government punished a young man for his art—and, more disturbing, for the musical genre by which he chose to express  himself.

“Under our Constitution, ‘esthetic and moral judgments about art and literature . . . are for the individual to make, not for the Government to decree, even with the mandate or approval of a majority.’” Brown v. Entm’t Merchants Ass’n, 131 S. Ct. 2729, 2733 (2011) (quoting United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 818 (2000)). Yet this did not apply to Taylor Bell.

. . . .

In attempting to censor Bell’s artistic expression, the school, and later the Fifth Circuit, essentially took aim at rap music, a sophisticated form of poetry that has served as an important vehicle for social commentary and political protest, particularly among young men and women of color. By taking Bell’s song lyrics literally rather than as forms of artistic expression, both the school and the Fifth Circuit essentially delegitimized rap as an art form that is entitled to full protection under the Constitution.

But rap most certainly is art. Like all poets, rappers privilege figurative language and employ a full range of literary devices. They also invent new words, invert the meanings of others, and lace their lyrics with dense slang and coded references that outsiders frequently do not understand. What’s more, rappers famously rely on exaggeration and hyperbole as they craft the larger-than-life characters that have entertained fans for decades.

Bell’s lyrics reflect these complex traditions. Told from the perspective of T-Bizzle—the fictional character created by Bell to narrate the song—PSK da Truth is intentionally provocative. But it draws on the conventions of mainstream rap, particularly the highly successful subgenre of “gangsta” rap.

As this brief discusses, the phrases deemed “threats” by the Fifth Circuit were, in actuality, wellworn rap lyrics borrowed—at times nearly verbatim—from some of music’s most successful and acclaimed performers.

Reading these violent lyrics as a type of autobiography ignores rap’s artistic conventions, thereby negating it as an art form, and perpetuates enduring stereotypes about the inherent criminality of young men of color, the primary producers of rap music. Studies establish that many people also harbor negative stereotypes about rap music that they do not have about other musical genres.

If our judicial system allows these stereotypes to go unchallenged, justice will continue to be elusive for those Americans most in need of a voice—a voice that rap music has given them.

Interestingly, I could see this brief as being one of the most helpful and informative the Court gets.  Just as judges know far too little of the technology that are asked to adjudicate in patent and other disputes, I suspect they know relatively little of music, at least rap.  As the brief makes clear, adjudicating this case on the face of the words spoken misses the whole point.  Get the full brief here:  Download Taylor-Bell-Amicus

 

https://lawprofessors.typepad.com/education_law/2015/12/taylor-bells-message-really-is-getting-out-all-star-list-of-rappers-professors-and-others-join-his-f.html

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