Can your good takes land you in jail? What the ‘rap trial’ case taught us about ‘freedom of expression’

A Toronto man was released from jail last month after a judge decided rap lyrics and provocative social media posts were not enough to support first-degree murder.

Hassan Ali, known in the Toronto music scene as Top 5, was accused of being present at the scene of the shooting that killed accounting student Hashim Hashi, 20, whom prosecutors described as an “innocent” victim. .

In addition to accessory chargesProsecutors argued that Ali’s violent lyrics and online posts were more than just art, claiming they established a link to the “GGG” gang. in one viral music videoIn a recording from jail with a contraband cell phone, Ali rapped: “I was 18 when I bought a gun, 22 when I shot your son.”

This is not the first time that rap lyrics or artistic expressions have come up in court, says criminal defense lawyer Alex Boyrie says.

“A common example used in court is the Bob Marley song ‘I Shot the Sheriff,’” De Boyrie explained, adding that no one seriously believes the reggae legend committed such an act. “It’s just a common form of artistic expression,” he said. “Just because an artist or rapper may be less well known than Marley, why should his lyrics be taken as fact?”

The judge in Ali’s case ruled that the charges be “stayed” for one year and that Ali’s profession as a piercer is inadmissible in court. However, since his release, Ali has maintained his controversial presence online, appearing on live streams and podcasts, which has raised some questions about the freedom of expression of artists who blur the line between culture, art and law.

So what does this case mean for artists who use controversial language in their work? Here’s what legal experts say you can and can’t say online.

Fact or fiction: People “often embellish stories” to “make them viral”

When it comes to online expression, the line between fact and fiction can be blurry, especially in cases where song lyrics or social media posts end up being used as evidence in court.

In the United States, Atlanta-based rapper Young Thug is currently facing charges (in the longest criminal trial ever held in the state of Georgia). accused of being the “ringleader” of a street gang known as YSL (Young Slime Life). Prosecutors have pointed out their rap lyrics as evidenceeven though his attorney, Brian Steel, argues that “none of these letters are true threats, therefore it is protected speech.”

The limits of protected speech differ depending on context and jurisdiction.

De Boyrie says that in many cases, public figures exaggerate or fabricate narratives online to build their brand. “I think, similar to any type of statement made, there has to be a factual basis behind it,” he said. “Whether they are artists, rappers or streamers, they often embellish stories to gain credibility or go viral.”

According to De Boyrie, when evidence such as song lyrics or social media posts is presented, courts must examine its reliability. In Ali’s case, he explains, “admissibility often depends on reliability,” because juries can’t take at face value what artists claim online.

As artists increasingly use edgy content to cultivate an image on the Internet, this raises questions about how much of that image can be used as evidence against them.

Free Speech Laws Have Limits

Individuals are generally protected by free speech laws, but this right has limits, especially when online statements or posts are perceived as threatening or linked to criminal activity.

There are several defenses available in both Canada and the United States. Canadians are protected under the law”freedom of expression“the law under the Charter of Rights and Freedoms and Americans are protected under the”Freedom of expression“The law outlined the Constitution.

However, under the Canadian Charter, section 2(b) explicitly states that protected expression has been determined to be include music as well as art, dance, physical movements and marches with banners.

“The way artists use it is to basically write whatever they want in their music and express it in whatever way they see fit,” De Boyrie said. “It covers everything. “It applies not just to rappers, it applies to all of us.”

What are the limits of freedom of expression online?

While platforms often promise open discourse, the law imposes limits to prevent harm, defamation and incitement.

The Canadian Charter of Rights and Freedoms grants freedom of expression but also allows the government to impose restrictions if they are considered “reasonable in a free and democratic society.” These limits also apply to media publications and religious expression if they incite violence or promote harmful ideas.

In practice, this means certain types of speech, such as hate speech, defamationand incitement to violence—can be restricted. For example, Canada’s Criminal Code prohibits the “deliberate promotion of hate,” which has led to charges against people who post content targeting specific groups based on race, religion or sexual orientation. In one notable case, a man was prosecuted in 2017 for promote neo-Nazi views onlinemarking one of the few but significant uses of hate speech laws in Canada to curb harmful expression online. In January 2023 he was found guilty.

Can I be prosecuted solely for my online personality?

In Canada, it is rare for someone to be prosecuted solely for their online identity, as courts often require substantial evidence beyond social media posts.

However, when content falls into areas such as incitement, explicit threats or direct references to criminal activity, authorities may view it as a starting point to consider it more seriously in a legal context.

“You might get the attention of the police and they’ll start investigating if there’s any evidence,” De Boyrie says. “But if they determine that there is none, then yes, you are just expressing yourself freely.”

Authorities often monitor online content that appears to promote violence, issue threats, or reference criminal activity. Even if such posts are later dismissed as “entertainment” or expression, they can raise red flags, which could trigger further investigation.

While disclaimers can help soften public perception of a controversial image online, De Boyrie points out that once something is posted online, it is effectively permanent.

“If you say something online, it will be there forever and you will never be able to take it back,” he adds. “It can be clarified… but it all comes down to the evidence, these online statements… essentially invite an investigation.”

Hassan Ali’s lawyer, Gary Grill, argued that the case against his client was weak and described it as “trial rap” as it relied heavily on Ali’s online personality and lyrics. Although establishing guilt based solely on online statements can be challenging, De Boyrie emphasizes that lawyers will always reject anything that invades clients’ freedom of expression.

“Many people have no idea that there are some restrictions on our freedom of expression,” De Boyrie notes, noting that some restrictions are built into the criminal code.

“It is important for young people to understand this as they are often the ones facing these charges.”