As of now, the court of public opinion seems to have rendered its verdict on the case of Pusha T v Drake.
With his super hard-hitting takedown "The Story of Adidon," in which Push alleges that Drake is an absentee father to his secret love child with a porn star, the former Clipse member appears to have bested the 6 God in the battle track game. By doubling down with the single's cover art in which Drizzy is seen in blackface -- an image Drake says was meant to highlight racism in the TV and film industries -- Pusha appeared to have scored a rare K.O. against Drake in this round.
But could Drake come back at him in a different arena and win? Billboard asked First Amendment expert attorney James Chadwick of Sheppard Mullin Richter & Hampton LLP if the private information Pusha included in the track could leave him open to retaliation in the courts.
"There's no automatic exemption from potential liability for expression in the context of an artistic performance," Chadwick tells Billboard about whether Push is on solid ground because he leveled the attacks in a song. "The context is still important, because the context may affect whether or not assertions are treated as assertions of fact or as non-factual assertions. Opinion is a general category, but it's really more a question of whether or not a court would treat a statement as likely being understood by the audience as assertions of true fact, as opposed to someone just mouthing off, rhetorical hyperbole, exaggeration."
When asked what protections the First Amendment has in the case of one artist potentially having a financial impact on another's major roll-out campaign for a brand line, Chadwick, speaking in general terms without specific knowledge of the Pusha-Drake situation, says that's more complicated. "Financial loss doesn't affect whether or not speech is protected by the First Amendment," he says, "Financial loss may be a prerequisite for certain kinds of claims. There are claims that could be asserted other than what you might expect in a traditional defamation or invasion of privacy case]."
That claim is called tortious interference of economic advantage, which, in layman's terms, refers to a case in which one person's unlawful, meddling actions intentionally damage someone else's business relationship with a third party, resulting in economic harm to either one. So, for example, if Pusha's apparent reveal that Drake's new line with adidas is going to be called Adidon in honor of his alleged secret son (reportedly named Adonis), and that the revelation of his offspring's story was going to be part of the roll-out campaign (as reported by TMZ) somehow interferes with Drake's business relationship with adidas, that could be an issue. A spokesperson for Drake had no comment for this article.
"Showing harm is part of that claim, and you might be able to assert a claim like that, but you'd still have to show that the speech at issue is not protected," he says, hinting at the difficulty in such a case.
The kind of back-and-forth that typically takes place in rap battles isn't automatically protected, according to Chadwick, but rather a mixed question of fact and law in which a court looks at the context and factors in who is involved in the beef. "Obviously public figures have a higher burden to establish liability for something like defamation," he says. "If you have well-known artists exchanging barbs, in general it's less likely that those will be treated as statements of fact. They're going to probably be deemed as opinion, but it's not impossible for them to be treated as statements of fact, to be found to be false and to be found to be defamatory. But is it even defamatory to accuse a rap artist of having an illegitimate child? I'm not sure it is."
The bottom line is on a good day libel/slander cases are typically very hard ones to win thanks to robust First Amendment protections. And unless Drake is willing to open up his private life to scrutiny and deny the information is true or confirm it and potentially lose face with both adidas and his fans, chances are he’ll respond with a track rather than a legal brief. "Truth is an absolute defense in all defamation/slander cases," adds noted hip-hop attorney Stacey Richman, who has worked on behalf of DMX, J Rule and Lil Wayne in the past.
And given the hip-hop bro code, in which bars are one thing but legal action is another, it's highly unlikely that Drake would come back at Pusha with a subpoena in place of another dis track. Besides, considering it's been more than a week since Pusha dropped "Adidon" and Drake has yet to respond, legal action -- versus lacerating verses -- would be a questionable strategy for the latter from a PR perspective. "Drake would lose more points from hip-hop fans] for going to court," says hip-hop journalist and Genius' manager of artist relations Rob Markman.
Now, if the details spilled by Pusha in his song are all true, they may not be considered defamatory or actionable, but Chadwick says there could be a claim on invasion of privacy grounds, which assumes the information disclosed is true, but private and not newsworthy. "But] that claim is difficult in a context like this, as well with people who are known for exchanging attacks," he qualifies.