The Second Circuit Court of Appeals recently upheld the prosecution’s introduction of social media evidence to support a conviction against an alleged gang member for narcotics sales, murder and related crimes. The case, United States v. Pierce, concerned several defendants including Melvin Colon, a member of a Bronx N.Y. street gang. As evidence against Colon, the prosecution introduced posts Colon made to his Facebook page including a video of Colon rapping “Somebody make somebody nose bleed / I’m OG shoot the Ruger / I’m a shooter,” and a picture of Colon’s hand showing a “Y.G.K.” tattoo. YGK stands for Young Gunnaz Killer, and Gunnaz was the rival gang against whom Colon committed his violence.
At trial Colon argued that introduction of the Facebook posts violated his First Amendment rights because his conviction “rested on a form of expression, however distasteful, which the Constitution tolerates and protects.” The Court rejected his argument since the speech was not the basis of the prosecution, in other words, Colon was not prosecuted for making the posts, but rather the posts were used as evidence of his participation in a different crime.
The Court also rejected Colon’s argument that the Facebook posts were merely “fictional artistic expression,” which should not be used against him. The Second Circuit, referencing a recent New Jersey Supreme Court case, acknowledged that violent rap lyrics alone are insufficient to sustain a conviction. However, where the violent rap lyrics and the like survive a Fed. R. Evid. 403 challenges and their probative value outweighs their danger of unfair prejudice, the evidence is admissible. The court ultimately sustained Colon’s conviction.