Hip-hop, like any art form, is a means of creative expression. And while rap music is often semi-autobiographical, when Kanye West recorded in 2018, “I thought about killing you / Premeditated murder,” or when, 18 years earlier, Eminem boasted of putting his dead wife in the trunk of a car, surely those words weren’t meant to be taken literally.

But what happens when lyrics are used as evidence in a criminal trial?

Grammy-nominated artist Young Thug was arrested this week on charges of gang activity and conspiring to violate the Racketeer Influenced and Corrupt Organizations Act (RICO). But as federal prosecutors aim to prove the Atlanta rapper’s involvement in a large-scale criminal operation, they’re using his own music against him.

Young Thug, whose real name is Jeffrey Williams, is listed as a co-founder of so-called “criminal street gang” Young Slime Life, or YSL. He was arrested Monday along with fellow Atlanta rapper Gunna. The indictment alleges that Williams possessed stolen weapons as well as methamphetamine, hydrocodone and marijuana, with intent to distribute. Williams is also implicated in an attempt to murder Atlanta rapper YFN Lucci, and he is accused of renting a car “used in the commission of the murder of Donovan Thomas, Jr., a rival gang member.”

The indictment cites lyrics from nine Young Thug songs, including “Ski” and “Slime Shit.” Several lyrics from the 2019 song “Just How It Is” are listed, including “I done did the robbin’, I done did the jackin’, now I’m full rappin’” and “It’s all mob business, we know to kill the biggest cats of all kittens,” which the court deems in the indictment “an overt act in furtherance of the conspiracy.” Also noted by the court is the 2021 song “Bad Boy,” which includes lyrics like, “Smith & Wesson .45 put a hole in his heart / Better not play with me, killers they stay with me,” and, “I shot at his mommy, now he no longer mention me.”

The goal of federal prosecutors is to use these lyrics, sung or rapped in an artistic context, as legal evidence against Williams — a trend that has become increasingly popular, as well as controversial.

Veteran music lawyer Dina LaPolt puts it simply: “This is unprecedented racism.”

LaPolt, who started LaPolt Law and co-founded advocacy group Songwriters of North America, brings up that scrutiny on violent lyrics is almost exclusively targeted at rap music. (She’s written about the subject before in Variety.) In demonstrating this discrimination, LaPolt references over a dozen country songs containing lyrics about murder from artists ranging from Carrie Underwood to the Chicks. One of the songs, by Zach Bryan, goes: “I killed a man in Birmingham / I hit him with a tire iron / He did not move and I do not give a damn.”

After all, why is it considered a threat when Young Thug raps about murder, but Johnny Cash’s famous “Folsom Prison Blues” confession — “I shot a man in Reno just to watch him die” — is considered a masterwork of fiction? Indeed, the “murder ballad,” a mainstay of country and Americana music, is practically exalted as an art form, and even recently inspired its own true crime podcast, “Songs in the Key of Death.”

According to legal expert Jack Lerner, “You can draw a direct line between the use of rap lyrics in criminal proceedings and discrimination in the criminal justice system.” Lerner, a professor at UC Irvine and director of UC Irvine’s IP, Arts and Tech Clinic, is the co-author of “Rap on Trial: A Legal Guide for Attorneys,” a comprehensive manual for defense lawyers dealing with rap lyrics introduced at any stage of criminal proceedings.

LaPolt frames the issue in more colloquial terms: “Most judges are white men in their 70s, so they completely don’t even get rap music.”

Young Thug isn’t the only prominent rapper to have his lyrics used against him in court in recent years. Drakeo the Ruler spent three years in prison before he was released and found not guilty on all murder and attempted murder charges. The court used lyrics from his 2016 song “Flex Freestyle” to illustrate a rap beef and convince the jury that Drakeo was targeting another artist named RJ.

Many expect that YNW Melly’s lyrics will come back to haunt him in his upcoming first-degree murder trial. A year-and-a-half before the rapper was allegedly involved in the shooting death of two of his associates, he spent 20 weeks on the Billboard Hot 100 with the hit song “Murder on My Mind.”

Despite this, there is precedent that fights the use of lyrics in court proceedings. In the 2016 case United States v. Sneed, the court posited that “rapping about selling drugs does not make it more likely that Defendant Sneed did, in fact, sell drugs.” Furthermore, “We may not permit a jury to infer that simply because Defendant rapped about selling drugs that he is guilty of selling drugs.” In 2021, a Pennsylvania federal court excluded rap lyrics from trial in Bey-Cousin v. Powell, establishing that “artistic expression is fictional not factual.”

Along those same lines, Lerner notes that “all kinds of people have stage names and public personas that have nothing to do with their actual real day to day existence.” This calls to mind Hulk Hogan’s infamous case against media outlet Gawker, in which a pillar of the professional wrestler’s argument was the idea that Terry Bollea and Hulk Hogan are two completely different people. Might Jeffrey Williams and Young Thug be?

While the allowance of lyrics as evidence in the Young Thug trial may ultimately be denied, LaPolt points out that their prominence in the indictment is “damaging” because it likely already prejudiced the jury.

Earlier this year, Jay-Z, Killer Mike, Meek Mill, Big Sean, Vic Mensa and more artists endorsed an effort to end the use of rap lyrics as evidence in criminal trials. The New York state legislature has yet to vote on the Rap Music on Trial bill, but it has the support of State Sens. Brad Hoylman and Jamaal Bailey.

On a broader level, the idea that one’s creative expression could be used against them in court sets an alarming precedent for art itself.

“It has a huge chilling effect,” Lerner says. “It’s unfortunate because it could really affect the way people make music.”