Kendrick Lamar, left, performs during the 2023 Bonnaroo Music and Arts Festival in Manchester, Tenn., in 2023, and Drake performs during Lil Baby’s birthday party in Atlanta in 2022. (Amy Harris/Invision/AP; Paul R. Giunta/Invision/AP)

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.

Read more:For Kendrick Lamar, spite is an engine on the exhilarating ‘GNX’

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.