The Miller obscenity test, first applied in Miller v. California (1973), is applied by determining proof of the three following standards: “(1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (2) measured by contemporary community standards, the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value” (Skywalker v. Navarro 1990:587). All three elements must be met and each evaluated independently.
Judge Gonzalez decided that prior to application of the three standards of the Miller test (prurient interest, patently offensive, lacking serious value), the first and second element of the test require a determination of community standards. The Judge ruled that the relevant community is comprised of the counties Palm Beach, Broward and Dade, because these counties are geographically connected, they share a common transportation system and common means of communication (radio, TV, newspapers), and have many cultural, economic, and political ties. The Judge also ruled that, to determine the standards within this community, he could rely on his own personal knowledge since he was himself a resident of Broward County since 1958. Therefore, he denied expert testimony on this matter. Judge Gonzalez also decided that the residents in the area are generally more tolerant than other communities in the state.
In his application of the Miller test to the “Nasty” recording, the Judge ruled the following. First, the Judge determined, as a matter of fact, that the “Nasty” record does appeal to the prurient interest, specifically because a) all of the references to sex in the recording?s lyrics, b) the intention to lure hearers into sexual activity, and c) rap music?s emphasis on the lyrics. Therefore, the “Nasty” album “is an appeal directed to the “dirty” thoughts and the loins, not to the intellect and the mind” (1990:591). Second, again as a question of fact, the Judge decided that “Nasty” deals with sexual activities in graphic detail (”like a zoom lens”), that the album is replete with sexual lyrics, and that it is therefore patently offensive. Finally, the Judge ruled that, taken as a whole, the “Nasty” album does indeed lack any serious artistic, literary, political, or social value. This decision was not measured by community standards, but on the basis of a determination of the reasonable person?s judgment. Judge Gonzalez explicated that neither the musical style “rap” nor the band 2 Live Crew were on trial, and that the trial only dealt with the recording “As Nasty As They Wanna Be”. Several experts, including Carlton Long, Assistant Professor in Political Science at Columbia University, an expert on Black American culture, witnessed on behalf of the plaintiffs. Long contemplated upon the cultural and political significance of the album to demonstrate its redeeming social value. Plaintiffs also pointed to the fact that when parts of the album were played during the trial, the audience was laughing, indicating that the album is a piece of comedy and satire. The Judge argued that the laughter could have been intended to hide embarrassment and shame because of hearing the lyrics. Also, the Judge indicated that rap is essentially verbal and that the riffs borrowed from other recordings do not manage to lift the “Nasty” album to an artistic work. In conclusion, the album “As Nasty As They Wanna Be” by 2 Live Crew was ruled legally obscene.
Judge Gonzalez also ruled on the fact whether the Sheriff?s actions were a case of prior restraint. He decided that the initial purchase of the “Nasty” album by Deputy Sheriff Wichner was not prior restraint, and neither was Judge Grossman?s inquiry into the probable cause of obscenity. However, the order of Judge Grossman indicating probable cause of the “Nasty” recording?s obscenity was issued without any legal basis, and neither were there any legal grounds to spread the order to the stores, which in effect meant a county wide seizure of the “Nasty” album. All of the Sheriff Office?s actions concerning the “Nasty” album after Grossman?s decision were therefore unconstitutional prior restraint. The Sheriff and his deputies were permanently enjoined from threatening employees and managers of record stores with arrest for the selling of obscene records or from informing them about a probable cause order of obscenity.
On May 7, 1992, the United States Court of Appeals decided to reverse the decision of Judge Gonzalez (Luke Records v. Navarro 1992; see Morant 1992:24; note that Skywalker Records had meanwhile changed its name because of a legal suit filed by the production company of Steven Spielberg; the lead singer of 2 Live Crew called himself Luke Skywalker and the company he had set up Skywalker Records after one of the characters in the movie Star Wars; the name of the company was changed to Luke Records; Friedland 1991:137). The Court of Appeals heard expert testimony (including Professor Long) and decided that the “Nasty” album did not appeal to the prurient interest and did have (culturally specific) artistic value. Also, the Court of Appeals noted that Judge Gonzalez? personal knowledge to determine community standards was insufficient and that he should have relied on expert witnesses. Finally, the burden of proof in the “Nasty” case should have rested with defendant Navarro, but he only submitted a copy of the tape. Therefore, the Court of Appeals concluded: “We reject the argument that simply by listening to this musical work, the judge could determine that it had no serious artistic value. REVERSED.” (Luke Records v. Navarro 1992:139; the prior restraint analysis of Gonzalez was not commented upon). In the meantime, The Supreme Court has upheld the Court of Appeals ruling (Chicago Tribune, December 1992).
III. THE CRIMINALIZATION OF MUSIC: RAPPING AND ROCKING WITH THE LAW
The court cases on popular music I presented have all set important precedents which have lead to considerable debate among legal scholars and professionals. The rise of the PMRC and particularly the Senate Hearing, which did not seek any legislation but which nevertheless represented intervention or at least interest by legislators and politicians, have inspired several legal scholars to write on the possibility of future legislation and some legal difficulties in the control of music. The First Amendment has been a central concern in these discussions, and other means of legal control (incitement, obscenity) were considered. Next, the cases on loudness and incitement received some attention, but it was not until the obscenity trial of the 2 Live Crew that the legal ball got really rolling, with over a dozen of articles appearing in professional law journals.
1. The First Amendment
The first wave of legal articles on the control and censorship of music appeared soon after the Senate Hearing was held. A review of these discussions will make it clear that a) nearly all legal scholars agreed that there were many constitutional problems with the proposed labeling and/or rating system for records; and b) while several articles focused on the possibilities of future legal control of music, none of these foresaw the original 2 Live Crew verdict.
First of all, a number of legal articles discussed the problems associated with the labeling of records (see Block 1990:826-829; Butler 1991:379; Goodchild 1986:166-171; Kaufman 1986:238). The problems that are suggested with the labeling system include: the increased administrative costs and burdens involved with administering and policing of the system; the possibility of reduced album sales due to decreased air play and/or unavailability of records in the stores; the increased incentive for bootlegging; the possibility that children will be lured into buying obscene records precisely because they are labeled; the unfairness of the system since only one small group of people would decide what is acceptable for the entire nation; the fact that labeling is not content-neutral; and the deterrent effect for store owners to carry the labeled records, which violates the Constitution as an impermissible prior restraint. In addition, the labeling of records, as compared to the movie industry?s rating system, is considered practically unfeasible because of the enormous amount of records being released every year, the ambiguous nature of music lyrics, and because it is unclear whether entire albums should be rated or only separate songs on each album, and whether videos should receive a separate rating from the song on the album (Kaufman 1986:245-247; Roldan 1987:242-247; Scheidemantel 1985-1986:505-507). Furthermore, the regulation of music through labeling was deemed ineffective to protect children from exposure to explicit lyrics because anybody would still be free to buy the labeled record anyway (Berry and Wolin 1986:615; Kaufman 1986:237). It was also claimed that the PMRC, which sought to control records on radio and TV, was not allowed to regulate broadcasting since only the FCC can determine regulations on licensees (Kaufman 1986:242).
Moreover, some legal scholars assert that the PMRC proposed voluntary labeling as a form of private action precisely to allow for a form of control which state or Federal authorities could never justify. The proposal for “voluntary” restraint actually amounts to an abuse of private power that foregoes the restrictions of state and Federal action (Goodchild 1986:160-171; Scheidemantel 1985-1986:494-504). McDonald (1988a:309) even states that the RIAA agreed to the voluntary label only because of a threat of legal action by the PMRC. Other legal scholars have even gone further in asserting the effective ties between private and public action in the case of the PMRC?s proposals. Given the general condemnatory atmosphere and the marital affiliation of PMRC affiliates with high-ranking Senators, it is argued that the Senate debates were not neutral and actually constituted an impermissible influence of the state in the final (officially private) agreement between the RIAA, the NPTA and the PMRC (see testimony by Zappa; Lazarus 1987:434-435). Private and state action have actually been able to merge precisely because the issue was transferred over into the private hands of the politically associated PMRC. The Senate Hearing controversy reveals how government can make suggestions to private industry and ask them for “voluntary” restraint, only to sidestep the constitution (”congress shall pass no laws…”) and thus in effect enforce regulation (Berry and Wolin 1986:608-615; Goodchild 1986:174-176).
Finally, the labeling of records poses serious First Amendment issues because of the “chilling effect” the system may have. It is claimed that even when labeling itself is not considered an abridgement of First Amendment rights, it could eventually lead to legislation as the result of a “net-widening” effect (Berry and Wolin 1986:619; Goodchild 1986:176). Directly or indirectly, the PMRC?s proposed labeling is thereby running afoul of the First Amendment and engages in de facto censorship (Roldan 1987:247-252).
Several legal discussions following the Senate Hearing have focused on the possibilities of legislation on popular music. In light of the previously mentioned court cases that have in effect dealt with issues of incitement and obscenity with regard to popular music, it is striking to note that these articles, published before the cases took place, often considered incitement and obscenity but always concluded that there are solid legal grounds to conclude that such issues could never stand up in a court of law (see Berry and Wolin 1986: 597-615; Kaufman 1986:237-239; Lazarus 1987:504-519). It is suggested, for instance, that the court could decide that rock speech is of lesser general value than purely political speech and can therefore only receive limited protection as a form of commercial speech. This possibility, however, is excluded since music, unlike commercials, does not express any verifiable truths. On the other hand, ad hoc regulations could then still be possible, for instance, to prohibit certain concerts and certain songs, or to supervise the broadcasting of songs on radio (Lazarus 1987:521-522; Gray 1989a:155).
The issue of incitement by music was discussed because records that would somehow be proven to cause or incite injurious activity do not fall under the heading of constitutionally protected speech (Berry and Wolin 1986; Coletti 1987; Holt 1990:67-69). But this possibility seemed highly unlikely because there is no proof on the links between, for instance, pornography and rape, and because the contested statement has to be very clear and precise (Coletti 1987:438-443). Therefore, Berry and Wolin (1986:606-608) argue that state and Federal authorities cannot label records because there is no conclusive evidence that exposure to sexual and violent music lyrics causes anti-social or immoral behavior. Popular music would fail the clear and present danger test and therefore does not constitute an imminent danger (Goodchild 1986:182; Holt 1990:69). Although it was acknowledged that the state has an interest in protecting and supervising children, records cannot be regulated because a) the individual has a right to information; b) the state secures its interest in supervising and protecting children through education and not through music; and c) time, place, and manner restrictions can only be made without regard to the content of the message, and if the restrictions are very narrowly defined and leave open alternative ways of communication. In the case of labeling records, all these issues become problematic. Moreover, records are bought privately, so that there is no public forum involved, and they are bought voluntarily, so that no person has to be threatened by their messages because each individual is free not to buy the record (Coletti 1987:443-451; Kaufman 1986:254).
Of all the legal debates, the one focusing on obscenity was most clear-cut. All legal articles that considered this issue before the Skywalker trial concluded that music could never be considered obscene. Particularly, it was claimed that records could never pass the “as a whole” test because on even the most explicit albums there will be some songs which are not obscene as defined by the standards of the Miller test (Berry and Wolin 1986:598; Block 1990:794-796; Coletti 1987:427-438; Goodchild 1986:177-180; Holt 1990:61-67; Kaufman 1986:254-257; Scheidemantel 1985-1986:479-482). Moreover, musical recordings by definition have artistic value, and they fail to pass the “dominant theme” test because lyrics are often secondary to the music or can in any case not be considered separate from the music (Judge Gonzalez did so anyway). Also, records do not appeal to the prurient interest, even when they are judged to be indecent (from a legal point of view indecency is not obscenity, see Scheidemantel 1985-1986:476). Other obscenity problems result from the fact that music is an art form and that words to music, unlike the written word, can never be proven to arouse sexual or violent conduct. Because the obscenity of music can never be clearly defined, any form of such legislation on music would be vague (vague laws are unconstitutional). Also, obscenity laws on music would be “constitutionally overbroad” because, when the target is the protection of children, any person regardless of age would be affected too, and because only one or a few of the songs on an entire album may constitute unprotected speech (Berry and Wolin 1986:604; Goodchild 1986:171-174). The overbreadth of any regulation of music, therefore, would constitute censorship (Kaufman 1986:262).
In sum, legal scholars after the Senate Hearing, but before the Ward and Skywalker cases, explicitly recognized that music was a form of protected speech, and that any form of regulation, including the labeling of records, interferes with the individual?s right to choose. While acknowledging that music can influence behavior, that it affects young people in particular, that the style of music and performers has changed, and that some parents are genuinely concerned, the labeling of records signifies a deprivation for all because of the concerns of a few. While at the time of this debate music was not yet considered protected speech by the Supreme Court, all legal commentators agreed that music, as a medium for the expression of ideas, should be constitutionally protected.
2. Loudness and Incitement
As mentioned before, the most important consequence of Ward v. Rock Against Racism (1989) was the fact that the Supreme Court had explicitly ruled that music is protected speech under the First Amendment, at the same time stating that this does not imply that all musical speech is fully protected. Numerous cases involve regulation of free speech and the Court?s decision on the New York guidelines precisely concerned such regulation, specifically the time, place and manner restrictions under the O?Brien test.
Very few legal scholars have commented on the Ward case. The fact that the Supreme Court had explicitly ruled that music is protected by the First Amendment did not lead to much discussion, simply because nobody had expected otherwise. However, the noise restrictions that the Supreme Court ruled constitutionally valid did arouse some discussions (Irwin 1989; Sorondo 1990). It is argued that while the Court?s ruling rightly assessed the content-neutrality of the New York guidelines, the narrow tailoring requirement is more problematic since the Court did not investigate any other alternative means the City of New York could have resorted to reach its goal. Also, the decision that the New York guidelines did not involve any prior restraint was considered technically wrong since the City of New York does possess the authority to deny use of the Bandshell in advance of the expression by turning down the volume and, as the dissent stipulated, because the placement of a technician during the concert interfered with the communicated message. Likewise, the fact that the Rock Against Racism concert was held in Central Park was crucial for the event because rescheduling the concert at another place would have meant a reduction of the political message to a “whisper” (Sorondo 1990). Finally, procedural safeguards of the guidelines were not met because the city could always abuse its discretion in the control of sound without judicial review of the concert promoters.