I 118TH CONGRESS 1ST SESSION H. R. 2952 To amend the Federal Rules of Evidence to limit the admissibility of evidence of a defendant’s creative or artistic expression against such defendant, and for other purposes. IN THE HOUSE OF REPRESENTATIVES APRIL 27, 2023 Mr. JOHNSON of Georgia (for himself, Mr. BOWMAN, Mr. THOMPSON of Mis- sissippi, Ms. WILSON of Florida, Ms. PORTER, Ms. KAMLAGER-DOVE, Ms. CROCKETT, Mr. CARTER of Louisiana, Mr. CARSON, Mr. ROBERT GARCIA of California, Ms. JACKSON LEE, Ms. JAYAPAL, Mr. MCGOVERN, Ms. BUSH, Mr. MULLIN, Mr. PAYNE, Ms. WILLIAMS of Georgia, Ms. LEE of California, Ms. TLAIB, Ms. OCASIO-CORTEZ, and Ms. LEE of Pennsyl- vania) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To amend the Federal Rules of Evidence to limit the admissi- bility of evidence of a defendant’s creative or artistic expression against such defendant, and for other pur- poses. Be it enacted by the Senate and House of Representa- 1 tives of the United States of America in Congress assembled, 2 SECTION 1. SHORT TITLE. 3 This Act may be cited as the ‘‘Restoring Artistic Pro- 4 tection Act of 2023’’ or the ‘‘RAP Act of 2023’’. 5 VerDate Sep 11 2014 00:12 May 09, 2023 Jkt 039200 PO 00000 Frm 00001 Fmt 6652 Sfmt 6201 E:\BILLS\H2952.IH H2952 kjohnson on DSK79L0C42PROD with BILLS 2 •HR 2952 IH SEC. 2. LIMITATION ON ADMISSIBILITY OF DEFENDANT’S 1 CREATIVE OR ARTISTIC EXPRESSION. 2 (a) IN GENERAL.—Article IV of the Federal Rules 3 of Evidence is amended by adding at the end the following: 4 ‘‘Rule 416. Limitation on admissibility of defendant’s 5 creative or artistic expression. 6 ‘‘(a) CREATIVE AND ARTISTIC EXPRESSIONS INAD- 7 MISSIBLE.—Except as provided in subsection (b), evidence 8 of a defendant’s creative or artistic expression, whether 9 original or derivative, is not admissible against such de- 10 fendant. 11 ‘‘(b) EXCEPTION.—A court may admit evidence de- 12 scribed in subsection (a) if the Government, in a hearing 13 conducted outside the hearing of the jury, proves by clear 14 and convincing evidence— 15 ‘‘(1)(A) if the expression is original, that de- 16 fendant intended a literal meaning, rather than figu- 17 rative or fictional meaning; or 18 ‘‘(B) if the expression is derivative, that the de- 19 fendant intended to adopt the literal meaning of the 20 expression as the defendant’s own thought or state- 21 ment; 22 ‘‘(2)(A) in a criminal case, that the creative ex- 23 pression refers to the specific facts of the crime al- 24 leged; or 25 VerDate Sep 11 2014 00:12 May 09, 2023 Jkt 039200 PO 00000 Frm 00002 Fmt 6652 Sfmt 6201 E:\BILLS\H2952.IH H2952 kjohnson on DSK79L0C42PROD with BILLS 3 •HR 2952 IH ‘‘(B) in a civil case, that the creative expression 1 refers to the specific facts alleged in the complaint; 2 ‘‘(3) that the expression is relevant to an issue 3 of fact that is disputed; and 4 ‘‘(4) that the expression has distinct probative 5 value not provided by other admissible evidence. 6 ‘‘(c) RULING ON THE RECORD.—In any hearing 7 under subsection (b), the court shall make its ruling on 8 the record, and shall include its findings of fact essential 9 to its ruling. 10 ‘‘(d) REDACTION AND LIMITING INSTRUCTIONS.—If 11 the court admits any evidence described in subsection (a) 12 pursuant to the exception under subsection (b), the court 13 shall— 14 ‘‘(1) ensure that the expression is redacted in 15 a manner to limit the evidence presented to the jury 16 to that which is specifically excepted under sub- 17 section (b); and 18 ‘‘(2) provide appropriate limiting instructions to 19 the jury. 20 ‘‘(e) DEFINITION.—In this section, the term ‘creative 21 or artistic expression’ means the expression or application 22 of creativity or imagination in the production or arrange- 23 ment of forms, sounds, words, movements or symbols, in- 24 VerDate Sep 11 2014 00:12 May 09, 2023 Jkt 039200 PO 00000 Frm 00003 Fmt 6652 Sfmt 6201 E:\BILLS\H2952.IH H2952 kjohnson on DSK79L0C42PROD with BILLS 4 •HR 2952 IH cluding music, dance, performance art, visual art, poetry, 1 literature, film, and other such objects or media.’’. 2 (b) CLERICAL AMENDMENT.—The table of contents 3 for the Federal Rules of Evidence is amended by inserting 4 after the item relating to rule 415 the following: 5 ‘‘416. Limitation on admissibility of defendant’s creative or artistic expression.’’. Æ VerDate Sep 11 2014 00:12 May 09, 2023 Jkt 039200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6301 E:\BILLS\H2952.IH H2952 kjohnson on DSK79L0C42PROD with BILLS