Texas law firm Johnston Tobey Baruch PC announced Monday that the group of 30 artists, scholars and six arts organizations— including rappers Killer Mike and Young Thug — filed briefs with the high court Monday arguing that the use of rap lyrics as evidence of criminality violates artistic free expression and the First Amendment. Rapper Travis Scott also filed a brief with the high court separately arguing for the court to take the case.
"Because rap often contains inflammatory messages and is otherwise often associated with certain racial stereotypes, the invocation of the genre as evidence against a criminal defendant is prone to misuse as a means to taint the jury, regardless of the actual content of the lyrics," Jacques Bermon Webster II, also known as Travis Scott, said in his brief. "These complexities both serve to explain the singular treatment rap music receives in the criminal justice system and to underscore the dire necessity of court intervention."
The artists wrote the high court in support of a certiorari petition filed by James Garfield Broadnax, a Black man who was convicted of killing two white people, and sentenced to the death penalty. Broadnax requested that the high court review his second habeas petition denial by the Texas Court of Criminal Appeals, according to his petition filed with the high court. Broadnax's execution is set for April 30, according to the petition.
Texas law requires that juries find a defendant poses a "continuing threat to society" before it may impose the death penalty. Prosecutors in Broadnax's case used his lyrics at sentencing to persuade the nearly all-white jury into voting for the penalty, according to the announcement from the law firm.
Scott provided for the high court a history of hip-hop and rap, noting that the genre has had a profound role in shaping modern American popular music. Rappers often embellish or even use fictionalized events in their songs that, when taken out of context by prosecutors, could have a profound impact when shown to a jury, according to Scott's brief.
Scott's brief references comments made by Chief Justice John Roberts during oral arguments in the 2015 case Elonis v. United States
Scott's brief also references a Racketeer Influenced and Corrupt Organizations Act case against another rapper, Young Thug, as evidence that prosecutors across the U.S. are relying on rap lyrics to score convictions. Georgia prosecutors alleged that Young Thug, whose real name is Jeffery Lamar Williams II, used his rap lyrics and record label to intimidate rival gangs, according to the brief.
Young Thug and several other rap artists joined a separate friend of the court brief filed by rapper Killer Mike, whose real name is Michael Render, that accused Dallas County, Texas, prosecutors of using "weaponized cultural expressions" as a way of portraying Broadnax as a continuing threat to society.
That brief references other music, such as Johnny Cash's outlaw country song "Folsom Prison Blues," as proof that even outside the hip-hop genre, artists can reference violent acts as part of their music. The brief accuses Texas prosecutors of singling out rap and hip-hop because of its connection to the Black community in the United States.
Broadnax similarly accuses prosecutors of using racial stereotypes throughout the trial and sentencing, referring to him as a "predator" jurors might see on "Animal Planet." Prosecutors also presented at sentencing over 40 pages of handwritten rap lyrics, some containing violent motifs, as evidence of Broadnax's purported criminal mentality, according to the petition.
The friend of the court briefs both conclude that because prosecutors only introduced the lyrics at sentencing rather than during the guilty/innocent phase, the government is acknowledging that it was unrelated to Broadnax's conviction and should not be allowed at sentencing.
The Dallas County district attorney who prosecuted the case against Broadnax argued in a brief filed Monday that the court should deny certiorari and uphold the state court of appeal's ruling. The district attorney said in the brief that because Broadnax did not argue due process concerns when objecting to the lyrics during sentencing, he is barred under state law from using the argument during his appeal.
A spokesperson for the Dallas County, Texas, district attorney's office declined to comment for the story. A representative for Broadnax declined to comment. Counsel for Scott did not immediately respond to a request for comment Tuesday.
Travis Scott is represented by Alex Spiro, Ellyde R. Thompson, Rebecca Arno, Chelsea Sincox and Grace Sullivan of Quinn Emanuel Urquhart & Sullivan LLP.
Killer Mike is represented by Lucius T. Outlaw II of the Howard University School of Law, and by Chad Baruch and Brandon Tobey of Johnston Tobey Baruch PC.
The case is Broadnax v. State of Texas, case number 25-939, in the U.S. Supreme Court.
--Editing by Amy French.