When Brandon Duncan began rapping in the late 90s, he was, as Peter Holsin wrote for Noisey, a “rising name in San Diego’s hip-hop scene”—a kid who grew up in one of San Diego’s most historically violent neighborhoods and used those rough circumstances to make himself a commodity on West Coast rap records at the time. As he got older, Duncan drifted away from his upbringing, settled down with his fiancee and bought a house, but kept rapping. Until now, he’s had a clean record, despite being “documented” as a member of the Lincoln Park Bloods.
But despite the fact that he has no current ties to a gang or the gang’s activity, San Diego County is charging Duncan with “multiple violations” of California Penal Code 182.5, which states:
“ …any person who actively participates in any criminal street gang [as defined by statute] with knowledge that its members engage in or have engaged in a pattern of criminal gang activity [as defined by statute] 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…"
How did Duncan, a man with no criminal record besides two dropped charges for “pimping and pandering” back in 2008, benefit from “felonious criminal conduct?” Prosecutors say that his album sales are boosted by gang activity that he admittedly has no involvement in, and the proof is in his album cover, which features a gun and bullets. And by extension, San Diego County’s prosecution of Brandon Duncan is tantamount to declaring all out war on the First Amendment and freedom of expression in the United States.
Earlier this month, Brendan O’ Connor covered the alarming trend of using rap lyrics as evidence in criminal trials, but the ambiguity of the law that Tiny Doo is being charged with, along with the lack of any real evidence that he benefitted from these crimes, takes the most gray area of California law and uses it to stomp on Duncan’s right to free speech.
The obvious race and class issues aside in this case—one has to wonder if the state of California would have ever charged Coppola with “benefitting from gang activity” for making The Godfather—this is by far the most drastic case in recent memory of music either being used in a criminal trial or being suppressed due to content. It is, however, just one more instance of the government attempting to censor music or use it to prosecute its creator (or distributors) that continues a historical pattern that developed almost from the time radio and recorded music came into prominence.
Billie Holiday's Radio Ban
In 1939, Billie Holiday’s protest song “Strange Fruit,” written by the communist activist Abel Meeropol about the public lynchings of two black teenagers, faced an unofficial ban from radio stations due to its anti-lynching message; at the time, a coalition of segregationists and hardline anti-communists dominated the government at the time, making the song too controversial to play for many radio stations. A year later, New York lawmakers subpoenaed Meeropol to testify in front of a committee on communism in public schools and asked him whether or not the Communist party had paid him to write the song.
The Communist Musician Blacklist
In 1950, the pamphlet Red Channels: The Report of Communist Influence in Radio and Television was published as a list of 151 musicians, singers, actors, screenwriters, directors, and others in the entertainment industry with suspected Communist sympathies, and served as source of blacklisting for legendary musicians such as Pete Seeger, Burl Ives, Larry Adler, Leonard Bernstein, and Josh White. The pamphlet not only listed the names of their targets, but documented instances where each publicly displayed liberal or communist sympathies, and defined the Hollywood blacklist.
For some in the industry like Ives, the only way to save their careers was to sign an “oath of loyalty,” or to testify before the infamous House Committee on Un-American Activities. For others like Marsha Hunt, they never recovered from the perception that they were infiltrating the media as Communist sympathizers, or worse, spies for the Soviet Union.
Houston's 26-Song Ban
In 1955, the “Juvenile Delinquency and Crime Commission” in Houston, Texas formed a subcommittee to “Wash Out The Air,” and came out with a list of 26 singles that were “suggestive, obscene, and characterized by lewd imitations” that would be banned not only from radio, but jukeboxes and even record stores within the city of Houston. As Linda Martin and Kerry Segrave wrote in Anti-Rock: The Opposition To Rock and Roll, almost all of the artists on the list were black, including Ray Charles, The Dominoes, and the Drifters. The group threatened to file complaints with the FCC if any of Houston’s radio stations didn’t comply, and eventually, all of them did.
The FBI vs. N.W.A.
In 1989, the FBI sent a letter to Priority Records in protest of N.W.A.’s song “Fuck Tha Police.” In the letter, written by assistant director for public affairs Milt Ahlerich, the bureau stated that “Advocating violence and assault is wrong, and we in the law enforcement community take exception to such action.” Both members of Congress and the ACLU objectified to the letter, with Congressman Don Edwards saying that “The FBI should stay out of the business of censorship.”
Florida vs. 2 Live Crew
In 1990, a District Court Judge Jose Gonzalez (Florida) ruled that 2 Live Crew’s album As Nasty As They Wanna Be was obscene and illegal to sell; Shortly thereafter, they were charged with obscenity after performing at a club in the state, and a record store owner was charged for selling the record to an undercover cop. Luther Campbell, Fresh Kid Ice, and Brother Marquis were acquitted after the tape shown in court from the Hollywood concert proved to be completely useless; the record store owner, Charles Freeman, was convicted, but later saw his conviction overturned.
Tipper Gore and the PMRC's "Parental Music Advisory"
In the 1980s, future Second Lady Tipper Gore co-founded the Parents’ Music Resource Center, a committee whose sole purpose was to push for the formation of a rating system that would effectively make music with “objectionable” lyrical and visual illegal to sell to minors. The battle between the PRMC and musicians like Ice-T and Jello Biafra, who had a publicized debate with Gore on Oprah in 1986, culminated in Senate hearings about “objectionable” music’s influence on the United States. The hearings resulted in the RIAA requiring Parental Advisory stickers, but the MPAA/ESRB-like rating system that Gore pushed for never came to fruition.
Louisiana's CD Confiscation
In February 2000, a fight broke out in the parking lot of The Skate Zone, a local rink in Iberia Parish, Louisiana, which Sheriff Sid Hebert blamed on the music (“particularly the rap music”), and in response, he (without a warrant) confiscated CDs by Snoop Dogg (as well as Christina Aguilera, Britney Spears, and a Disney’s Tarzan soundtrack) and arrested the owner and manager. The ACLU filed a lawsuit, and a federal judge ruled that the sheriff violated the management’s First Amendment rights and ordered him to return the CDs. Hebert went on to serve for seven more years as Iberia’s sheriff before leading the Louisiana Supreme Court’s Hurricane Revitalization Center.
Tiny Doo’s case is disturbing and shows complete disregard for Duncan’s civil rights, but it’s hardly a new development in a country that historically does not value free speech for musicians and songwriters, and even more so when the musician or songwriter in question is African American. What sets Duncan’s case apart from others cited in this article, and makes Los Angeles County’s move to take him to trial so infuriating, is that it will decide whether or not making violent art is a crime for black people in the state of California. And in this hour of American history, unfortunately, that scenario doesn’t seem too implausible.
Paul Blest is on Twitter - @pblest