Art as Evidence in Court
August 24, 2024
When we think of art, we often imagine finding it in museums, galleries, and shops. But in reality, we can find art nearly everywhere.
Sometimes, it's hidden in our words, spoken or written. We also see it in other ways, like in performance art such as Marina Abramović's The Artist is Present, where she sat in silence at a table, and museum-goers were invited to sit across and simply stare at her.
The presence of art is meaningful and prevalent in nearly every aspect of life. So, with that thought in mind, can we also find it in courtrooms?
Art in Court and Legal Disputes
Even art needs to be protected by and, in some instances, from the legal system. Like any other medium, it can always be at risk of disobeying regulations and potentially causing harm.
A current famous example is the criminal proceedings and RICO case against the rapper Jeffrey Lamar Williams ("Young Thug"), where memes online have shown clips of the rapper's lyrics introduced as evidence in court.
In late 2023, a judge decided that Young Thug's lyrics from his rap songs could be entered as evidence. The prosecution argued that the lyrics omitted the crimes laid against him. The jury must determine whether the lyrics are credible.
However, on the other hand, the debate ensues whether art can be considered anything other than artistic expression and creativity. As Judge Joshua Wolson said in Bey-Cousin v. Powell, "In a society that treasures First Amendment expression, courts should start with a presumption that art is art, not a statement of fact. To rebut that presumption, the party offering the evidence must demonstrate that the art is the artist's attempt to tell a factual story."
The case eventually reached political conversations with Senate Bill S7527 (An act to amend the criminal procedure law about rules of evidence concerning the admissibility of evidence of a defendant's creative expression), supported by prominent artists and musicians, including Jay-Z, Meek Mill, Kelly Rowland, and Big Sean.
The Bill attracted the name "Rap Music on Trial" and advocates for freedom of expression in the arts, specifically focusing on rap music.
But songs aren't the only art form challenged in a legal context.
In Vancouver, a nightclub found its way in front of British Columbia's Human Rights Tribunal, accused of using decor that set an uncomfortable work environment for female employees of the nightclub and therefore classified as sexual harassment. In their defence, the nightclub stated they were not discriminating against any gender (a violation under Section 13 in the Human Rights), and the ornaments were merely for decorum.
Free Speech
With these cases at hand, it should make us wonder to what extent art is free speech and how much legal power we hold over our art.
Article 19 of the United Nations Universal Declarations on Human Rights affirms that every individual has the right to freedom of opinion and expression, a principle also upheld in Canada. Socially, Canada values an open marketplace of ideas and recognizes the importance of open conversations in shaping diverse perspectives. However, others would argue that, while freedom of speech is important, it's also necessary to create legal parameters to protect people from harm, such as hate speech, intimidation, and, in more extreme cases, murder.
Ultimately, this leads to a more significant debate on morality and ethics. Is it our innate right to have the freedom to create art without repercussions? Is it ethical to leverage the arts as evidence in court?
If artistic expression is limited, art can lose its recognition as a safe space. Take the case of the recent Netflix series Baby Reindeer, created and written by Richard Gadd. In it, Gadd recounts his experience being stalked and assaulted by a woman (fictionally named Martha), groomed by a television writer, and having difficulties jumpstarting a struggling comedy career.
The woman who is said to be the inspiration for the character of Martha sued Netflix for defamation. She claims that the notoriety of the show created a series of events that caused her emotional distress and was a violation of her right to publicity.
This situation particularly emphasized the importance of understanding the relationship between freedom of expression, one's reputation, and digital privacy rights. But it also makes us wonder how much freedom victims have to tell their stories and turn their pain into art.
Although we have yet to see the outcome of this lawsuit, it could impact the dramatization of real-life stories and how platforms will manage those types of content.
Boundaries and Their Impact on the Future
Protecting individuals from discrimination is essential but isn't always evident in a legal context. But that doesn't mean that artists should be limited when creating art. The freedom to express ourselves is a fundamental right we deem essential for a thriving democratic society.
Art manifests in countless mediums, each with its own unique tone, genre, and style. This diversity requires that the legal boundaries surrounding free speech in the arts remain broad to accommodate these differences. But when it comes to art forms that push boundaries, like satire, what does that mean? Could they face censorship or require a separate set of rules?
Integrating art as evidence in legal proceedings challenges conventional boundaries and invites us to reconsider how we interpret truth and narrative. Art provides a unique lens through which to view events and human behaviour, potentially revealing nuances that traditional evidence might overlook. This has broadened the scope of what can be considered evidence but also raises intriguing questions about the nature of truth itself.
Protecting our ability to make art also means acknowledging that some boundaries may be necessary to safeguard universal rights. This introduces a new layer of complexity: as we explore the potential of art in legal contexts, we must also confront legal and philosophical questions about whether imposing such constraints might stifle the stages of creativity, inspiration, and expression that are vital to the artistic process. The evolving role of art in law suggests that our understanding of evidence and its impact on justice is far from complete—an open dialogue that invites continued exploration and reflection on how to balance artistic freedom with the law and ethics.