The most recent event concerning labels is the RIAA?s decision to introduce a uniform label (see insert), to which the PMRC has responded favorably (Jones 1991:78). The new RIAA decision not only specifies the label?s text (”Parental Guidance: Explicit Lyrics”), but also its size and color, as well as that its appearance on the lower right hand corner of all albums, cassettes, and compact discs containing explicit lyrics. In a press release, the new RIAA President, Jay Berman, announced the new logo and referred to the results of an independent national survey conducted in April, 1990, which demonstrated that more than half of the respondents were in favor of voluntary labeling (RIAA News Release, May 9, 1990). Whatever the label does to customers, it has already lead to some scientific research on the issue, debating whether a warning label increases or decreases the likelihood that a person will want to buy the labeled product (see, e.g., Christenson 1992; Davis and Dominick 1991). From personal experience, I discovered that, while originally I found it interesting to look for labeled records, this has become by all standards a time-wasting activity. So many records are labeled, without any coherent standard, that one may rightly wonder what the label is all about anyway. In any case, although the PMRC?s actions have not managed to directly lead to legislation or a more strict rating system, it is clear that since the Senate Hearing the issue of the nexus between popular music, sex, violence and declining moral standards has been brought to the foreground of public discussion and has generated an enormous amount of media attention. In addition, some communities and states have recently proposed ordinances to identify and monitor offensive music, and several state and Federal instances of legislation have dealt with the control of music in some form or another. In any event, it can be observed that following the PMRC?s actions and the Senate Hearing, which was after all a direct result of the PMRC?s activities, the stage was set for a climate of law enforcement, legislation, and further social mobilization targeted against and for popular music. Paradoxically, the PMRC has always been careful to avoid bringing in the First Amendment and stressed that it did not seek any legislation. But the world of music must fit the word of law.
II. MUSIC ON TRIAL: LOUDNESS, INCITEMENT, AND OBSCENITY
I limit this analysis of court rulings on popular music to three often discussed, and from a legal point of view most important, cases. It should be noted, however, that next to these cases other legal interventions in popular music did occur after, as well a before, the PMRC?s activities. In 1986, for instance, criminal charges were filed against Jello Biafra, lead singer of the Dead Kennedys for having inserted a poster inside of the band?s album Frankenchrist. The poster, painted by H.R. Giger, is called “Landscape # 20: Where Are We Coming From?” (also referred to as “Penis Landscape”) and depicts nine sex acts (Wishnia 1987:444). Strikingly, in a public statement, the PMRC expressed its support for the prosecution of Biafra. The case was brought to court by a concerned mother, but the religious right is reported to have already condemned the Dead Kennedys since their 1981 album “In God We Trust”, which features the lyrics “Blow it out your ass, Jerry Falwell; God must be dead if you?re alive” (Wishnia 1987:445). On August 27, 1987, Los Angeles Judge, Susan Isacoff, denied the prosecution?s motion for a retrial after a jury voted 7 to 5 to acquit Jello Biafra on charges of distributing harmful material to minors.
Other forms of legislation on popular music have since spread throughout the States: a San Antonio City ordinance was enacted to prohibit children under 14 to attend musical, stage, or theatrical presentations that include obscene performances; the Maryland Senate rejected a bill that would have made it a crime to sell obscene records to minors (Gray 1989b:11); several rock and rap performances have been cancelled or interrupted; in 1989, Missouri State Representative Jean Dixon introduced mandatory record labeling proposals, and similar bills were drafted and introduced in 22 states (Soocher 1990:27). On July 6, 1990, a mandatory record labeling bill was passed by the Louisiana legislature. The bill was introduced by State Rep. Ted Haik to have a label stating “Harmful to Minors”, but it was vetoed by Governor Buddy Roemer on July 25 (O?Gallagher and Gaertner 1991:108-109).
1. Music and Loudness: Rock Against Racism
By 1989, the Supreme Court had not yet explicitly included music and lyrics among the classes of protected speech. Only lower courts had recognized the protection of songs (Goodchild 1986:134, 142-145). However, The case Ward v. Rock Against Racism (1989), involving the use of guidelines to control the volume of music, brought the issue within the jurisdiction of the Supreme Court (see Irwin 1989).
The association Rock Against Racism had for several years been organizing musical events to promote its anti-racist ideas at the Naumberg Bandshell in New York City?s Central Park. Just beyond the park are the apartments of Central Park West and its residents had regularly complained to city officials about the noise caused by various rock performances. On March 21, 1986, the City of New York promulgated Use Guidelines on noise-amplification. The guidelines specified that any concerts held at the Naumberg Bandshell would have to be held using amplification equipment and a sound technician provided by the city of New York. Rock Against Racism filed a motion against the enforcement of these guidelines. The New York sound guidelines? validity was initially upheld in court, but the ruling was reversed by the United States Court of Appeals. The case was then brought before the United States Supreme Court (argued February 27, 1989, decided June 22, 1989).
The Supreme Court ruled that “municipal noise regulation designed to ensure that music performances in band shell did not disturb surrounding residents, by requiring performers to use sound system and sound technicians provided by the city, did not violate free speech rights or performers” (Ward v. Rock Against Racism 1989:2746). This decision was based on the Court?s contention that music is protected speech, and here lies the main relevance of the Ward case since it was the first time that the Supreme Court had ruled on the issue. The Court stated: “Music, as a form of expression and communication, is protected under the First Amendment” (Ward v. Rock Against Racism 1989:2753). However, the Supreme Court also decided that the New York guidelines on noise-control constituted a permissible regulation of time, place, and manner of expression because they passed the three-pronged O?Brien test to determine the constitutionality of such restrictions (this test was first used in United States v. O?Brien 1968). First, the guidelines were ruled content-neutral, that is, they did not take into account the specific contents of the message but only the level of noise of the musical expressions. Second, the guidelines were also narrowly tailored to serve substantial government interest because the quality of sound at Bandshell concerts, as well as the City?s interests in limiting sound volume for the convenience of residents living nearby, were guaranteed. Finally, the New York City guidelines also left open ample alternative channels of communication because the guidelines still permitted expressive activity in the Bandshell and, of course, did not affect other places where concerts could be held.
In dissent, Justice Thurgood Marshall argued that the New York City guidelines were not the least intrusive means necessary to achieve the City?s interests. Therefore, the “narrowly tailored” requirement was not met. Justice Marshall contended that the Supreme Court should have investigated whether the “greater efficacy of the challenged regulation outweighs the increased burden it places on protected speech” (Ward v. Rock Against Racism 1989:2761). Also, the dissent found that the New York Use Guidelines were inconsistent with the First Amendment?s aversion to prior restraint, and claimed that they lacked any procedural safeguards (e.g. nobody could judicially review the technician?s decisions during a concert). The dissent concluded that the dangers of a censorship system were not obviated by the New York City guidelines.
2. Music and Incitement: Ozzy Osbourne and Judas Priest
On the night of Friday October 26, 1984, 19-year old John McCollum shot himself in the head with a .22 caliber handgun while listening to a record by Ozzy Osbourne (Block 1990:787-788; Blodgett 1986; Coletti 1987:442; Holt 1990:70-72). For most of the evening, McCollum had been listening to Osbourne?s albums “Diary of a Madman” and “Blizzard of Oz” on the family stereo in the living room. He later went up to his bedroom, put on his headphones, listened to Osbourne?s album “Speak of the Devil”, and shot himself.
In October of 1985, McCollum?s parents filed suit against Osbourne and his record company CBS on charges of negligence, products liability, and intentional misconduct, alleging that the music had incited their son to commit suicide. The Superior Court of Los Angeles County first dismissed the case (August 7, 1986), after which the plaintiffs appealed, claiming that Osbourne?s songs contained themes of satanic worship and death, and that particularly the song Suicide Solution had incited their son because it preached “suicide is the only way out” (quote from the song?s lyrics). In addition, the song was claimed to contain “masked” lyrics not printed on the album (”why try, why try, get the gun and try it, shoot, shoot, shoot”).
The Court of Appeals ruled that Osbourne?s music was constitutionally protected and could not be seen as cause of the suicide (McCollum v. CBS 1988). The court first noted that music is protected by the First Amendment, but that freedom of speech is not absolute. Then the court investigated whether the music of Osbourne could have brought about the imminent suicide of listeners. The court decided, on the basis of the so-called Brandenburg test of incitement (a 1969 decision that struck down a state statute prohibiting the advocacy of violence for political and industrial reform), that none of Osbourne?s lyrics commanded anyone to take immediate action and that the lyrics were at best an advocacy of violent action “at some indefinite time in the future” (McCollum v. CBS 1988:194). Even if Osbourne?s music could be considered as fatalistic and propagating suicide, the element of immediacy was missing and therefore the lyrics were protected under the First Amendment (note that the song Suicide Solution is in fact about the dangers of alcohol, written by Osbourne after his friend Bon Scott, lead-singer of AC/DC, had died as a result of alcohol abuse).
In Nevada, on December 23, 1985, 18-year old Raymond Belknap and his friend James Vance listened to the album “Stained Class” by the British band Judas Priest (Block 1990:778, 788-789; Houser 1990:327-331). They had been listening to the album for over six hours while smoking marijuana and drinking beer. Afterwards, the two men went to a children?s play area near an empty churchyard. Raymond Belknap put a sawed-off shotgun beneath his chin and shot himself. James Vance also shot himself, survived with critical injuries but died three years later on November 30, 1988. The families of the men filed law suit against Judas Priest and their record company. Judas Priest initially tried to declare the lawsuit inadmissible because they were not American citizens, but the Nevada Supreme Court ruled that, having distributed their albums in the United States, the band was subject to personal jurisdiction (Judas Priest v. Nevada 1988).
During the trail, the plaintiffs argued that the suicides were the result of hidden messages on the Judas Priest album, a song of which would contain the words “do it, do it”. Plaintiff?s attorneys had strategically decided not to sue Judas Priest for their songs? explicit lyrical content because of the decision meanwhile reached in the McCollum case. After a 17-day trial, Judge Whitehead ruled that Judas Priest?s music had not incited the two youths to commit suicide because their album “Stained Class” did not contain any deliberate subliminal messages (Vance v. Judas Priest 1990). While the song “Better By You, Better Than Me” did contain the subliminal phrase “do it”, the judge ruled that this was merely the result of an accidental noise caused by a guitar part and an exhalation. Applying the Brandenburg incitement test, Judge Whitehead ruled that: “the plaintiffs did not lose this case because defendants proved that subliminal stimuli have no effect on human behavior… Rather, plaintiffs lost this case because they failed to prove that defendants intentionally placed subliminal messages on the album and that those messages were a cause of the suicide” (Vance v. Judas Priest 1990:22, in Houser 1990:330).
3. Music and Obscenity: The 2 Live Crew Go to Court
The obscenity case of the 2 Live Crew?s album “As Nasty As They Wanna Be” is one of the most interesting court cases on popular music. The case is complicated because of the facts that were involved, the court ruling that was reached on the album?s obscenity, the reversal of the ruling by the Court of Appeals, and the enormous amount of legal debate it has led to. I will present the history of the case, the ruling of the first trial, and the ruling of the appeal (see Beatty 1991; Butler 1991:368-376; Campbell 1991:177-215; Friedland 1991; Furer 1991:465-469; Gordon 1991:506-517; King 1991:120-140; Morant 1992:16-20; O?Gallagher and Gaertner 1991:105-110; Olson 1991:515-529; Rogow 1991:243-250; Skywalker v. Navarro 1990a).
The record company Skywalker Records released the 2 Live Crew album “As Nasty As They Wanna Be” (”Nasty”) in 1989 and simultaneously released a “sanitized” version of the recording called “As Clean As They Wanna Be” (same music, different lyrics). By 1990, sales of the “Nasty” album amounted to about 1.7 million copies, while the Clean album had sold some 250,000 copies. In mid-February of 1990, the Sheriff?s office of Broward County, Florida, began an investigation into the “Nasty” recording as a response to complaints by South Florida residents. Broward County Deputy Sheriff Mark Wichner was assigned to the case. On February 26, 1990, he traveled to Sound Warehouse, a record store in Broward County, and bought a cassette version of the “Nasty” recording. He listened to the album, had six of its songs transcribed, and prepared an affidavit stating these facts. On February 28, 1990, Deputy Wichner sent the affidavit, the transcripts, and a copy of the “Nasty” tape to Judge Mel Grossman of the Broward County Circuit Court, requesting that the judge find probable cause that “Nasty” was legally obscene.
On March 9, Judge Grossman issued an order, stating that he had found probable cause to believe the recording was obscene. The Broward County Sheriff?s office received and copied the order, and distributed it to all record stores that might be selling the album throughout the county. The Sheriff?s office had decided to warn the stores as a matter of courtesy (Skywalker v. Navarro 1990a). Then, Deputy Wichner again visited the store where he had purchased the “Nasty” cassette as well as two other stores. He gave a copy of the order to the managers of the stores, and told them that they should refrain from selling the “Nasty” recording and that selling the album could result in arrest under Florida state obscenity laws. Some 15 to 20 record stores were personally visited by agents and deputies from the Sheriff?s office. Within days, all record stores in the county ceased selling the “Nasty” album. On March 16, 1990, Skywalker Records filed against suit Broward County Sheriff Nicholas Navarro, who himself, on March 27, filed suit to seek legal determination whether “Nasty” was obscene (no trial date was set).
The Skywalker Records trial was held June 6, 1990 at the District Court of Ford Lauderdale, Florida, to determine a) whether the album “As Nasty As They Wanna Be” was legally obscene as a mater of civil, not criminal law, and b) whether the actions of defendant Navarro were unconstitutional prior restraint (Skywalker Records, Inc. v. Navarro 1990). The ruling was determined as follows. District Court Judge Jose Gonzalez first pointed out that the First Amendment?s free speech guarantee is not absolute, that obscene speech is not constitutionally protected, and that the State of Florida has enacted an obscenity statute. The 2 Live Crew argued that it is up to the free market of ideas to decide what is obscene and what is not, and that everybody is free not to buy a record. They also pointed to the fact that a sticker was placed on the album containing the words: “Warning: Contains Explicit lyrics”. The Judge replied that under Florida law obscenity is a crime and that the court merely seeks to interpret the law. Therefore, the Judge ruled to determine whether the “Nasty” album is obscene by applying the so-called Miller test of obscenity.