No Safety Indeed

A California Criminal court decided earlier this week that Brandon Duncan, also known as rapper Tiny Doo will have to stand trial for conspiracy related to nine San Diego shootings.  And how many times did Tiny Doo pull the trigger in those incidents? Approximately never.

Allow me to explain. Apparently, other than belonging to the gang, Tiny Doo had nothing to do with the shootings. He did, however, cut a CD called “No Safety” . While the titles on the CD display atrocious grammar – “Hella on Feet”; “Bare Wit Me Feat” and “Gimme Back My Bullets” – this in itself is not a crime. (And I am an old man, I realize this). And, in fact, none of the songs discuss the shootings. 

Apparently Tiny Doo is charged with violating a California statute that allows the state to prosecute gang members who benefit from crimes committed by other gang members. In the prosecutor’s view, Tiny Doo benefitted from the gang shootings because those shootings elevated the gang’s status resulting in additional CD sales. 

Seems like a stretch. And it probably violates the First Amendment. There are two ways a law may be unconstitutional. Some are “facially invalid” – the law as written plainly violates a constitutional right. So if the statute prohibited any composition that “glorifies” gang activity, that law would almost certainly not survive a challenge. 

Other laws, however, are unconstitutional based on how they are applied. And cases challenging them are referred to as “as applied” challenges. Here, to the extent the statute prohibits other gang members from profiting from a crime it does not necessarily violate the constitution. If one gang member robs someone and shares the loot (yes, I used the word “loot” – as noted above, I am old) with another gang member, there’s probably not a constitutional issue posed by prosecuting the members who benefit from the robber’s generosity.

But when the state seeks to prosecute expression, based on the content of that expression, there’s a problem. Because the First Amendment guarantees the right of free speech. And from a policy perspective, a contrary ruling would lead to absurd results.  What if the CD was critical of aspects of gang life? What if instead of a CD, Tiny Doo wrote a scholarly piece on the root causes of gang life?  Wouldn’t he be reaping the same reward? And if the CD is a crime, how could the other examples not be? 

It’s probably best to keep the government out of the music criticism business. The founding fathers grasped this concept, even if they thought hip hop was a maneuver for their horses.