Judge Says Rapper Needs To Turn Over Any New Rap Lyrics To The Feds

Serving your time is only part of the bargain. Once released, ex-cons can expect to live life with diminished constitutional rights, at least for as long as they’re on parole or supervised release. (And after that point, they can expect a very uphill road back to anything resembling normal day-to-day life, since a lot of our society seems intent to punish people for their entire lives if they screw up once.)

While these constitutional reductions tend to affect the Fourth Amendment the most — what with warrantless searches and other impositions being the norm — rarely does anyone expect their First Amendment rights to be similarly compromised while on supervised release.

But that’s what has happened to one recording artist after serving 11 years on felony firearm possession charges. Here’s Emma Camp, writing for Reason:

Last week, a federal judge ruled that B.G., a rapper known for the hit 1999 song “Bling Bling,” must give the government copies of the lyrics to any new songs as a condition of his supervised release. While prosecutors can generally place a wide range of otherwise illegal restrictions on released prisoners’ conduct, critics argue this restriction is an unconstitutional prior restraint on speech.

In 2012, B.G., whose real name is Christopher Dorsey, was sentenced to 14 years in prison for illegal gun possession and obstruction charges. After serving 11 years, Dorsey was released in February. In May, prosecutors filed a motion alleging that Dorsey had violated the terms of his bond by publishing songs “where he once again glorifies murder, drug dealing, and threatens those who cooperate with the police.” 

That is some wild stuff. Supervised release often involves warrantless searches meant to find criminal contraband, like illegally owned guns, drugs, or other evidence of criminal activity. This order, however, seems to assume rap lyrics might be criminal activity in and of themselves by giving federal officers first look at B.G.’s future creative works.

This is the sort of thing rap artists deal with all the time. Prosecutors argue their creative works should be entered as evidence against them in criminal cases, even though no prosecutor would, say, try to enter Martin Scorsese’s body of work on the record if they were prosecuting him. It’s a hypothetical, of course, but when it comes to separating criminal intent from creative expression, prosecutors tend to believe poor minorities (from whom most rap music originates) are the words they write, rather than they people they are.

Even wilder, that’s way, way less of an intrusion than the government originally requested.

Prosecutors requested that Dorsey be prohibited from “promoting and glorifying future gun violence/murder and obstructive conduct in his songs and during his concerts.” Last Friday, New Orleans federal judge Susie Morgan denied this request, writing that the condition might be an unconstitutional prior restraint on Dorsey’s speech.

Might? Oh, it definitely would. Fortunately, the judge rejected that proposition but added one of her own, which isn’t a whole lot better. From the federal court order [PDF]:

To address the legitimate concerns expressed by the Government, the Court will impose a special condition that the Defendant provide the United States Probation Office with a copy of the lyrics of any song he writes, in advance of his production or promotion of such song, and that those lyrics be shared with the Government. At that time, the Government may, if it deems necessary and appropriate, file another motion for leave to file a rule to show cause why the Defendant’s conditions of supervised release should not be modified because the Defendant’s conduct is inconsistent with the goals of rehabilitation.

That’s still prior restraint. It may not prevent B.G. from writing lyrics the government will undoubtedly find objectionable, but it will certainly discourage him from doing so because the threat of modifying or revoking his supervised release will always be present. This likely means B.G. will either engage in self-censorship or refuse to abide by these conditions. One means putting his career on hold for another three years. The other means possibly losing what freedom he has.

If I’m in B.G.’s shoes right now, in addition to mounting a legal challenge to this order, I’d be considering my malicious compliance options. If the government wants a copy of my lyrics ahead of time, I’d probably opt for the Lavabit Gambit, which it deployed when the FBI demanded the company hand over its SSL keys in hopes of accessing Ed Snowden’s emails:

Somewhat amusingly, Lavabit tried to comply “by turning over the private SSL keys as an 11 page printout in 4-point type.” The feds complained that “the FBI would have to manually input all 2,560 characters, and one incorrect keystroke in this laborious process would render the FBI collection system incapable of collecting decrypted data.” Poor, poor FBI.

If the probation office needs copies of lyrics, this is how they should get them. But it shouldn’t even come to this. This additional condition should be revoked because the government shouldn’t have first say on how people can express themselves.