BILL NUMBER: S1738
SPONSOR: HOYLMAN-SIGAL
 
TITLE OF BILL:
An act to amend the criminal procedure law, in relation to rules of
evidence concerning the admissibility of evidence of a defendant's crea-
tive expression
 
PURPOSE:
The purpose of this legislation is to protect freedom of speech and
artistic expression in New York State. This bill effectuates the
enhanced free speech protections provided by the New York State Consti-
tution, ensuring that criminal defendants are tried based upon evidence
of criminal conduct, not the provocative nature of their artistic works
and tastes.
 
SUMMARY OF SPECIFIC PROVISIONS:
SECTION 1: Amends the criminal procedure law by adding a new section
60.77, Rules of evidence; admissibility of evidence of defendants' crea-
tive expression.
SECTION 2: Amends the criminal procedure law by adding a new section
1.20(46), Definition of "creative expression"
SECTION 3: Establishes the effective date.
 
JUSTIFICATION:
There is no New York without art, whether it is provoking or inspiring,
beautiful or crude. As recognized by the New York State Court of Appeals
many decades ago, New York is "a cultural center for the Nation" that
has "long provided a hospitable climate for the free exchange of ideas."
Immuno AG. v. Moor-Jankowski, 77 N.Y.2d 235, 249 (1991). This is not
happenstance, but the direct result of the enhanced protections that
this State's Constitution provides for speech and creative expression.
Recent scholarship has highlighted a disturbing trend poised to threaten
the haven New York has always provided its artists. In courtrooms across
the country, artists' musical works are being admitted against them as
"evidence" in criminal proceedings. Just as concerning, the mere appre-
ciation of others' music-whether through reposting lyrics, performing,
or simply listening-is also being used as "evidence." Unchecked, these
practices chill free expression, transform the figurative into fact, and
warp criminal courts into instruments for suppressing provocative
speech. Moreover, these practices ignore the foundational principle that
a criminal case should be tried on the facts and not on a person's
"propensity" to commit the crime.
Rap has come under scrutiny for decades, being blamed by the media for
criminal activity, and admitted as evidence of criminal behavior by the
artist. Social scientists have linked anti-rap attitudes and racially
discriminatory behavior. But rap is just like any other creative
expression. The New Jersey Supreme Court wrote that "one cannot presume
that simply because an author has chosen to write about certain topics,
he or she has acted in accordance with those views" (State v. Skinner,
218 N.J. 496, 517, 521 (2014)). The court noted that no one believes
that Bob Marley actually "shot the sheriff," or that there's a man
buried in Edgar Allan Poe's floorboards.
This legislation would guarantee freedom of creative expression in New
York by prohibiting prosecutors from using creative expression as crimi-
nal evidence against a person without clear and convincing proof that
there is a literal, factual nexus between the creative expression and
the facts of the case.
 
LEGISLATIVE HISTORY:
S.7527 of 2021-2022 (Hoylman): Passed Senate
A.8681 of 2021-2022 (Cruz): Ordered to Third Reading Rules Calendar
 
FISCAL IMPLICATIONS:
This legislation will have no fiscal implications for State or local
government.
 
EFFECTIVE DATE:
This act shall take effect immediately.

Statutes affected:
S1738: 1.20 criminal procedure law