You read that right, the state of California has apparently decided that freedom of speech is a privilege, not a right. It seems that writing lyrics about crime is a crime in itself, and one punishable with 25 years to life in prison.
Brandon Duncan, also known as Tiny Doo, WILL be tried on December 4 following a judge’s determination that there is legal grounds for prosecuting him for his lyrics. Although Duncan is known to be affiliated with a local gang, some of whose members are being charged in a recent shooting, he was not connected to the crime and has no criminal record himself.
There is much concern that the state is going too far in this attempt to criminalize music lyrics, possibly setting a troubling precedence, even if it’s music that we may not like the content of.
No free speech for California rapper facing life in prison for ‘violent’ lyrics
Duncan’s latest album, No Safety, contains lyrics about Duncan’s life growing up in a San Diego neighborhood around gang members, and displays cover art featuring a gun and bullets on the cover.
Duncan was arrested and charged in the wake of a series of nine shootings in a San Diego neighborhood used by the Lincoln Park Gang. He was not accused of committing the shootings, participating in them or any physical violence – just for writing/producing the rap album.
It’s “absolutely unconstitutional,” says Duncan’s lawyer Brian Watkins, who believes the City of San Diego is wasting taxpayer money for using an old 2000 law to charge and prosecute Duncan. “It’s no different than Snoop Dogg or Tupac,” he said. “It’s telling the story of street life.”
The evidence against Duncan apparently consists of his rap album and some pictures of him on a social media page. If convicted, he could face sentencing of 25 years to life for prison.
The law used to charge Duncan is a never-before used law that allows gang members to be prosecuted if they found to promote or somehow profit from the crimes of fellow gang members. California Penal Code Section 186.22(b)(1), says:
“Any person who is convicted of a felony committed for the benefit of, at the direction of, or in association with any criminal street gang, with the specific intent to promote, further, or assist in any criminal conduct by gang members, shall, upon conviction of that felony, in addition and consecutive to the punishment prescribed for the felony or attempted felony of which he or she has been convicted…”
The case raises significant issues involving free speech and the constitutional rights afforded to citizens providing protection for free expression, especially for creative works involving music and the arts. The First Amendment protects the rights of Americans to express opinion, even if they are unpopular, which means that the government cannot enact laws that curtail free expressions of opinion and art.Although there is an exception for speech that incites violence or criminal conduct (meaning that the government can prohibit such speech), the speech has to be “imminent” (like yelling “shoot that cop” in a riot situation), Furthermore, the speech must actually be likely to result in violence in order to be considered unprotected.