☆ What expressions does freedom of speech cover in CA?
First Amendment expert/author and journalism professor Joseph Russomanno parses CA’n Assembly Bill 2799, which would enforce restrictions on how “creative expression” (art, song lyrics, etc.) can be used as evidence in criminal proceedings, in the name of halting racial discrimination. Russomanno examines critics’ claims that this bill is not First Amendment-upheld — emphasizing that no freedom offers absolute protection. An Opp Now exclusive.
Opportunity Now: Frame this bill for us through the free speech perspective.
AB 2799’s supporters frequently reference its First Amendment protections for those who might face discrimination in a court of law, while its opponents argue that this isn’t an issue of free expression at all, that “the First Amendment does not protect people from prosecutors using [lyrics] as evidence if it is such.” What is your take?
Joseph Russomanno: When considering this bill, I think of murder mystery authors or writers like Stephen King whose work contains depiction of violent crime. If laws existed that discouraged these writers from creating their work, I think we’d agree that this is a problem. We might even think such a law violates the First Amendment because it prevents them from producing their art, which is a form of speech. This is referred to as “chilling effect”: A law like this would chill individuals’ speech and is generally frowned upon in U.S. legislation.
Now, why should those whose art happens to be rap music be treated differently? On occasion, their music might express violence, but why should that matter? Just because speech is offensive doesn’t justify the government putting limitations on it, especially when that speech is on matters of public concern. While I don’t follow rap music closely, I understand that their art often does exactly that: expressing messages that are important to the public.
A person may not like the way that message is expressed, but our courts, including the Supreme Court, have made it clear that just because you’re put off by how speech is expressed, that speech doesn’t lose its First Amendment protection.
ON: So it sounds like you’re in support of allowing artists to express themselves without always being taken literally, the general consensus among AB 2799 advocates.
What about cases like Georgia’s indictment of rapper Young Thug, whose graphic song lyrics included admissions such as “I’m prepared to take them down,” “murder gang sh*t,” and “I never killed anybody but I got something to do with that body”? (Young Thug, or Jeffery Williams, was charged this year for criminal gang activity.)
Some critics of AB 2799 wonder if the potential for racial bias, as the bill mentions, could be used to exclude evidence like this — evidence that appears very relevant in a criminal trial.
JR: Any principle has limits. If someone’s confessing to a crime, that probably crosses the line into being unacceptable and unprotected by the First Amendment. Once an idea’s been expressed, particularly on a platform for public consumption, the creator can’t erase it; they’re now responsible for expressing that idea. If there are consequences to be faced, that person needs to face them.
I think of our libel law. Yes, our country has freedom of speech and of the press, but you can’t say or write something that hurts someone’s reputation falsely and expect zero consequences. When those lines are crossed, there can be repercussions.
In the United States, no person is allowed absolute freedom of speech. In fact, there’s no absolute freedoms of any kind in this country — or any other society.
Ultimately, I agree with the notion that if someone has evidence that can help with a criminal investigation, it should be revealed. But these aren’t situations in which anyone is attempting to hide information. It’s already been made public through the artists’ expression. My concern is any sort of effort that serves to criminalize artistic expression and, in turn, serves to silence future expression of a similar nature.
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