Why Is California Prosecuting a Rapper for Making an Album?

There’s really no witty or amusing way to start this piece, so I’ll get directly to the point: right now, in 2014, in America, a man is facing life in prison because he made a rap album. As per the LA Times, Brandon Duncan of San Diego, who performs under the name Tiny Doo, is allegedly a member of a gang that has been implicated in nine shootings, for which 14 members are about to stand trial. Duncan isn’t charged with participating in the shootings; instead, he’s being charged under a California state law that prohibits “willfully promot[ing], further[ing], or assist[ing] in any felonious criminal conduct by members of [a] gang.” The evidence against him? His latest album, along with “pictures on a social media page of him and several other defendants.” This is… well, there’s really no other way to say it: this is bullshit.

If you’re like me, the immediate reaction to this is that surely this application of the law under which Duncan is being charged is unconstitutional — it seems to be in direct contravention of the First Amendment, which provides that, “Congress shall make no law … abridging the freedom of speech.” Of course, the law being the law, nothing is ever quite that simple — the First Amendment’s protection of free speech isn’t absolute, and in this case, the relative exemption relates to incitement to violence.

There’s an interesting explainer in the New York Times — it was published last year in regard to the case of Gilberto Valle, the NYC policeman who was charged for posting plans on the Internet to kill and eat his estranged wife and multiple other women. If you’ve not read what Valle wrote, his plans were beyond nightmarish: he wrote in a chatroom that he wanted one of his victims “to experience being cooked alive. She’ll be trussed up like a turkey. … She’ll be terrified, screaming and crying.'” He also used police databases to look up potential targets, discussed a potential fee for kidnapping one woman, and investigated where and how to acquire torture equipment.

The Times predicted that Valle’s conviction wouldn’t stand, because it didn’t satisfy the test set out in Brandenburg vs. Ohio (1969), wherein the US Supreme Court’s decision provided that, “It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion where private rights are not concerned.” (Valle’s conviction was duly overturned earlier this year on the basis that his statement were fantasies, and that the women were never in imminent danger.) So: making explicit statements about your desire to torture and cannibalize women does not constitute “the present danger of immediate evil or an intent to bring it about.” Got it.

Brandenburg vs. Ohio itself is a case that’s worth considering, because it deals with a bunch who are nearly as much fun as Gilberto Valle: the Ku Klux Klan! The case concerned a Klan leader, who was convicted, inter alia, under an Ohio law that prohibited “advocat[ing]… the duty, necessity, or propriety of crime, sabotage, violence, or unlawful methods of terrorism as a means of accomplishing industrial or political reform.” The charge related to a rally wherein he and other Klansmen burned a cross, upbraided “[the] President, Congress, [and the] Supreme Court [for continuing] to suppress the white, Caucasian race,” and discussed the possibility of “revengeance.”

The Court cited a bunch of earlier cases, specifically Noto v. United States (1961), which noted that “the mere abstract teaching… of the moral propriety or even moral necessity for a resort to force and violence is not the same as preparing a group for violent action and steeling it to such action.” They decided that the Ohio statute in question was “a statute which, by its own words and as applied, purports to punish mere advocacy and to forbid, on pain of criminal punishment, assembly with others merely to advocate the described type of action,” and that as such it fell “within the condemnation of the First and Fourteenth Amendments.”

Let’s return to San Diego, then. The relevant legislation is here — in full, it reads as follows:

…any person who actively participates in any criminal street gang, as defined in Subdivision (f) of Section 186.22, with knowledge that its members engage in or have engaged in a pattern of criminal gang activity, as defined in Subdivision (e) of Section 186.22, and who willfully promotes, furthers, assists, or benefits from any felonious criminal conduct by members of that gang is guilty of conspiracy to commit that felony and may be punished as specified in Subdivision (a) of Section 182.

For a start, the entire law — or, at the very least, the part about “willfully promoting” — is dubiously constitutional, given that if running a Klan rally that speaks openly of “revengeance” is “mere advocacy,” it’s highly questionable that the promotion of a street gang goes any further toward qualifying as actual “incitement to imminent lawless action.” (Remember, writing on the Internet, “I really want her to suffer… let’s get Kimberley cooking!” is something you can pass off as fantasy.) And even if one does accept that the law is somehow constitutional, it’s also highly questionable that a rap album that discusses the actions of a gang actually amounts to “promoting” that gang.

And, of course, this is all assuming that Duncan’s lyrics say things like, “Hey, I am explicitly inciting you to go out and commit crimes,” and, “Hey, listen to this song about planning the shootings for which my friends are being prosecuted.” Which, fancy that, it doesn’t. I’ve listened to No Safety (if you’re interested, you can do so here), and it’s… well, it’s a rap album in 2014. There is talk of guns and bullets and shootings because, well, if you’re unfortunate enough to live in a crime-ridden neighborhood in San Diego, you probably see all those things frequently. As Duncan’s attorney points out, “Nothing in his lyrics say go out and commit a crime. Nothing in his lyrics reference these shootings, yet they are holding him liable for conspiracy.”

There’s talk in some reports that the prosecution is attempting to leverage the part of the law that prohibits “benefitting from… felonious criminal conduct by members of that gang,” in that “his gang status helped him to sell albums.” Considering that no one sells albums anymore, this particular record is streaming for free on Soundcloud, the “buy hard copy” link doesn’t seem to work, and it’s going to be virtually impossible to quantify how many albums Duncan may or may not have sold due to his (alleged) gang membership, this also seems to be a case of the State of California using taxpayers’ money to piss into the wind.

In some ways, it’s almost worth hoping this does come to trial, if only because of the hope that some sort of precedent will be set by a judge sending prosecutors out of the court with a stern admonishment for wasting his or her time. Sadly, it’s also a waste of the unfortunate Duncan’s time, and his liberty, and of state money. The whole thing makes a mockery of the American justice system.