Freedom of Expression Protection Act

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Policy Status

  • Type: Model Policy
  • Status: Draft
  • Date Introduced: December 4, 2025

Task Forces

  • Judiciary

    • Tags

  • SNPS 2025

    • Summary

    This model policy protects freedom of expression by establishing strict standards for when creative or artistic expression – such as song lyrics, poetry, or other artistic works – can be used as evidence against defendants in criminal proceedings. Currently, creative expression is being admitted under an unclear and inconsistently applied patchwork of rules, with researchers identifying more than 680 cases since the 1980s where song lyrics alone have been introduced as evidence, presenting a serious threat to artistic freedom and the principles of free expression. The model addresses this problem by making creative expression inadmissible by default unless prosecutors can prove by clear and convincing evidence in a closed hearing that: (1) the defendant intended a literal rather than figurative meaning; (2) the expression refers to specific facts of the alleged crime; (3) it is relevant to a disputed issue of fact; and (4) it has distinct probative value not available through other evidence. If admitted, only the portions meeting all four standards can be shown to the jury, and judges must provide limiting instructions cautioning against misuse of the evidence. 
    Draft

    Freedom of Expression Protection Act

    Section 1. Short Title. This Act may be cited as the “Freedom of Expression Protection Act.” 

    Section 2. Definitions For purposes of this Act, the following terms have the following meanings: 

     (a) “creative or artistic expression” means the expression or application of creativity or imagination in the production or arrangement of forms, sounds, words, movements, or symbols, including music, dance, performance art, visual art, poetry, literature, film, and other such objects or media.  

    Section 3. Admissibility of creative expression as evidence 

    (a) Except as provided under subsection (b) of this section, evidence of a defendant’s creative or artistic expression, whether original or derivative, is not admissible against such defendant in a criminal case.  

    (b) A court may admit evidence described in subsection (a) of this section in a hearing conducted in camera if the state proves by clear and convincing evidence:  

    1. (A) If the expression is original, that the defendant intended a literal meaning rather than a figurative or fictional meaning; or (B) If the expression is derivative, that the defendant intended to adopt the literal meaning of the expression as the defendant’s own thought or statement;  
    2. That the creative expression refers to the specific facts of the crime alleged;  
    3. That the expression is relevant to an issue of fact that is disputed; and  
    4. That the expression has distinct probative value not provided by other admissible evidence.  

    (c) In any hearing under subsection (b) of this section, the court shall make its ruling on the record and shall include its findings of fact essential to its ruling. 

     (d) If the court admits any evidence described under subsection (a) of this section under the exception under subsection (b) of this section, the court shall:  

    1. Ensure that the expression is redacted in a manner to limit the evidence presented to the jury to that which is specifically excepted under subsection (b) of this section; and 
    2. Provide appropriate limiting instructions to the jury.