On Feb. 9, there’s a strong chance that Kendrick Lamar will walk onto the stage at the Super Bowl halftime show in New Orleans, and call Drake a pedophile in front of hundreds of millions of viewers.
It would be hard for him to perform his smash hit “Not Like Us” without doing so — or at least without reminding viewers of the song’s most infamous hook. The track — nominated for record and song of the year at the 67th annual Grammys — is at the center of an explosive defamation suit between Drake and Universal Music Group, the label home to both artists. Drake claims UMG promoted a song that spreads false allegations about him; the label group says it merely supported the creative expression of a Pulitzer-winning artist on its roster.
In a time when prosecutors have used Young Thug’s lyrics against him in court, and the new president wants to make it easier for the rich and powerful to sue for defamation, is there any legal risk for performing “Not Like Us” at the Super Bowl?
The Times spoke with Ken White, a renowned 1st Amendment litigator, criminal defense attorney and prolific podcaster, about the stakes of Lamar’s performance in light of Drake’s suit and the changing legal environment for defamation — even in rap beefs.
It’s hard to imagine that Kendrick Lamar won’t perform “Not Like Us” at the Super Bowl. Is there any risk in playing that song on the biggest stage in America while there’s an active defamation suit against UMG about it?
There’s a risk, but it appears to be low because of the way that Drake has decided to do this. He very deliberately went after UMG, and said this isn’t about Kendrick. It was more like “I don’t want to pick a fight with Kendrick, I only want to pick a fight with UMG.” All he would be able to do is say, “UMG promoted this song at the Super Bowl, their hands got Kendrick Lamar the gig.”
It doesn’t seem to increase Lamar’s threat profile much. It’s already a widely known song, so the stance Drake seems to take is, “I’m going to go after kind of the unpopular defendant no one likes, a big record label.”
If Kendrick did perform the lyrics where he calls Drake a pedophile, does this open up the NFL or TV networks or anyone else to exposure here?
It increases the damages in theory. But does middle America listening to Kendrick at the Super Bowl really damage Drake’s reputation more than it’s already been damaged? Probably not. It does potentially bring in other people who are responsible for helping to publish what he says are false statements. I’m sure the NFL and the network and all have thought about that. It wouldn’t surprise me if they’re trying to stop it from being done at the Super Bowl.
I’m a defense lawyer, so of course I’m going to say, “Guys, don’t do this. It’s just going to give me a headache.” I’m sure every general counsel with the network or the NFL is saying, “No, for the love of God, don’t do it.” But the halftime show has always been willing to showcase stuff that is somewhat edgy. So I don’t really know how they’ll play it, but if I were an in-house counsel, I’d be telling them not to do it.
Drake’s suit notably is not aimed at Kendrick, but UMG. Drake may have his own reasons for choosing that. What do you think he’s actually trying to accomplish?
He might be, in effect, contract-negotiating with UMG by other means. He might actually want money, or he could be trying to thread the needle of repairing his reputation by not continuing to lose a rap beef. The problem is he chose to continue to participate in this, and now he doesn’t like the results.
Suing Kendrick Lamar over a rap beef would be something that Kendrick Lamar would say in a diss track that Drake would do. But Drake’s got to do something. So he figures, “Maybe this way I can go after a defendant no one likes and try to preserve my reputation, but not look like a complete loser.”
But you know, next time don’t get into a rap beef with someone much better at that than you are.
Would he have had a better chance at suing Kendrick directly?
No, I think UMG. Drake starts his complaint describing the violence against him after the song came out, because that’s the most persuasive way to present the case. Start with the most incendiary stuff to get sympathy and make people think, “Oh yeah, this actually had a very dangerous outcome.” I don’t think there’s a lot of dispute that some people took the song 100% literally and did crazy stuff.
But that’s not the real issue in a defamation case. You have to show that UMG knew that all the stuff in the song was false. But I don’t know if that’s more difficult than showing that Kendrick Lamar knew that it was false. Lamar is very popular, music labels aren’t. And it’s also one step removed, a little less embarrassing for him.
That’s part of the dance of rap beefs though, to have artistic license but a wink at real life resonance.
Drake’s complaint, to me, is completely dishonest. It completely fails to articulate the context. There’s nothing about the history between them, that this was the latest diss track in the back and forth between these guys, that it’s a rap beef that’s basically the modern version of the dozens. It just treats it as if, out of nowhere, out of pure malice, Kendrick just decides to accuse Drake of being a pedophile.
It’s an attempt to conceal one of the most important 1st Amendment issues, which is, “Is this a potentially false accusation of fact, or is it rhetoric and hyperbole?” That is a choice, but I don’t think it’s a choice that judges are going to like, because it seems awfully disingenuous. It’s an example of why you need anti-SLAPP [strategic lawsuits against public participation] statutes, because that allows you to point out, “Hey, these guys are hiding this stuff from you.”
Drake’s suit claims UMG knew the allegations in the lyrics weren’t true and pushed the song anyway. Is that risky, to have to actually do discovery about the merits of those claims?
Absolutely, but you don’t even get to that point unless you get over the initial hurdle of “Could this be defamation?” And to get there, you have to show that you know this is a provably false statement of fact. If you say, “Ken, your mom is so fat her blood type is Ragú,” my mom, God rest her, can’t sue over that, because everyone understands this is an insult, not something that’s literally true.
So if you’ve got this rap beef, the question is, does this mythical reasonable person, who is fully familiar with the context, hear a diss track and think, “Wow, this is literally true.” Or do they say “This is an art form passed down over the centuries, doing deliberately exaggerated insults against the other person?”
You can’t take it literally, which Drake’s attorneys intentionally drafted the complaint to conceal. But yeah, absolutely, once you decide it could be provably true or false, then you’d get into all the stuff in Drake’s life.
This is a weird moment for rap lyrics in courtrooms — prosecutors in the Young Thug trial tried to use his lyrics as statements about actual crimes. UMG’s defense here will likely be that this is creative expression and it can’t be defamatory. Is the environment for rap lyrics in court changing?
It’s a live wire issue in a criminal context. There’s been this dispute, “Can you take rap lyrics as evidence of genuine criminality and violence? Or is it artistic expression?” Some places have passed laws about this, some courts have seen it in different ways. There have been amendments to some rules of evidence that said you can’t use artistic expressions as evidence of intent.
I think that’s a cultural clash between rap culture and stodgy, 80-year-old white judge culture. I don’t think any judge thinks that if Johnny Cash is getting prosecuted for an assault, you’d be able to bring in “I shot a man in Reno just to watch him die” as proof of intent. Culturally, the judge would understand this expression.
The eternal problem though is that there are always some people who think that it is real. The question is whether this mythical judge-constructed reasonable person, a sober decision maker familiar with all the context and facts, if that person would take it literally.
Could this suit have any kind of chilling affect on future diss tracks like this?
I doubt it. It’s so lucrative, it’s so effective, it’s so great for marketing. I think what Drake may be looking for is the kind of outcome where UMG says “We’re ready to settle this, because everyone should understand this is artistic expression. No one takes it literally.”
But Drake is a super rich guy that’s not known for making great decisions, and he may decide that he wants to defend his honor and take this all the way.
We again have a president who has been outspoken about changing defamation laws to make it easier to sue. Should that come to pass, would that affect anyone’s calculus on speech like this song?
I’m concerned. Ten, even five years ago, I would have said no, the central pillars of law are solid. But now you’ve got a conservative movement that’s looking to undermine some of the underpinnings of defamation law, including the concept that you have to show actual malice if the plaintiff is a public figure. [President] Trump is super transactional, he’s not a legal thinker. But the whole Federalist Society crowd, some of them are absolutely pushing to make it easier for rich public figures to sue and win.
The other thing that’s changing is the legal culture. We’ve increasingly moved into this culture where performative, politically-inspired defamation lawsuits are expected and permissible. Filing a frivolous defamation claim would have been seen as an embarrassing sign of weakness, but it’s become common now.
UMG is a gigantic company. They’ve got all the lawyers they need, so it’s a much bigger problem for someone like you, a journalist, or anyone else who wants to talk about rich and powerful people. It’s not even about whether they’re going to win. It’s about the abusing the process. It’s PR management by other means.
This story originally appeared on LA Times
