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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.

The incitement trials have likewise lead to little legal debate. Legal scholars agree that the rulings in the Osbourne and Judas Priest trials were correct and that musical recordings will never be able pass the Brandenburg incitement test (Block 1990:796-803; Houser 1990:333-337). First of all, it is hard, if not impossible, to prove that the intention of a record is to cause injury because the artist can always argue that only artistic values are involved. The message of a record can also not be directed at some definite time, so that the reaction can not be immediate. Given the time lapse between recording, selling and buying of the record, there cannot be a “real time” urging. In addition, the listener can freely turn the music off, look for a different record, and the impact of subliminal messages is not determined and can therefore not be conclusively ruled upon. Finally, it was suggested that the Brandenburg test can and should not be applied to musical recordings because records are private speech, publicly available yet listened to by young people in the private sphere of family and friends. From this perspective, the courtroom was simply not the appropriate place to determine the incitement danger of music (Houser 1990).

3. Obscenity by Law

The amount of legal debate that the 2 Live Crew case has produced is by all standards staggering. At least a dozen papers in law reviews have analyzed the case from a multitude of legal perspectives. Interestingly, one of the papers was written by the 2 Live Crew defense attorney Bruce Rogow, Professor of Law at Nova University, in a special issue of the Nova Law Review. Three papers in the issue dealt with the obscenity trial. The editors originally intended to include a cassette version of the album with the review. However, the editors? decision “was vetoed for non-academic, non-legal considerations – in favor of protecting the perceived sensibilities and sensitivities of those upon whose support this University is dependent. Thus, we are reminded again of the power of speech” (Editors? Note, Nova Law Review (1991) 15(1):118).

Reviewing Judge Gonzalez? application of the Miller test step by step, legal scholars have argued against each and every decision the Judge made (see Beatty 1991:637-641; Campbell 1991:192-237; Furer 1991:472-494; Friedland 1991:132-157; Gordon 1991:517-524; Morant 1992:28-29; O?Gallagher and Gaertner 1991:113-121; Wolfe 1993). First, it was argued that the Judge?s determination of the relevant community and its standards was overtly subjective. The Judge decided upon a geographical concept of community, but this was inappropriate because the fact that people live in close physical proximity does not automatically suggest that they share common values. Judge Gonzalez was also inconsistent in determining, on the one hand, that the considered community is generally more tolerant than others, and, on the other hand, that he could rely on his personal knowledge of the community standards which he never defined, of which he did not say whether they could change over time, and of which he did not determine the defining criteria.

Second, the three standards of the Miller test (prurient interest, patently offensive, lacking serious value) were not met. With regard to determination of the album?s prurient interest, it was argued that there was no clear intention on the part of 2 Live Crew to lure hearers into sexual activity, and, referring to the profit-making motive of the rap band, Judge Gonzalez ignored that motive was irrelevant in aesthetic maters. Next, the patently offensive character of the “Nasty” album was decided upon as the result of a misinterpretation of the lyrics, based upon Gonzalez? arbitrary determination of “the” community standards. Actually, the lyrics of 2 Live Crew?s music should not be taken literally as they are comedic parodies in a culturally specific language. Also, music does not appeal to the intellect but to human emotions and imagination. Finally, the Judge?s ruling that “Nasty” did not have any serious artistic value was by definition mistaken since the “as a whole” test fails automatically in the case of a recording which after all always has some serious elements (the Judge never heard all the songs). Judge Gonzalez particularly failed to take into account Professor Long?s testimony which indicated the specific artistic style of the “Nasty” recording. Long pointed to the call and response style, the tradition of “doing the dozens” (a word game with insults), and the meaning of “boasting” as part of this type of rap music. Judge Gonzalez thus completely ignored the specific African American cultural values that are manifested by the album.

Finally, the prior restraint decision of Judge Gonzalez did not meet any resistance in the legal commentaries (Morant 1992:13-15). Gonzalez? decision in this respect complies with the legal principle that until speech or expression is ruled obscene, it must be accorded a degree of protection under First Amendment rights. However, it is unclear when a judicial determination must be sought to decide whether something is protected speech or not. In the 2 Live Crew Case, law enforcement activities had already taken place before the Judge?s ruling.

In sum, the decision of the Court of Appeals to reverse Gonzalez? decision did not come as a surprise. It appears that from a legal point of view it is very hard, if not impossible, to ever determine obscenity with regard to a musical recording. Indeed, some scholars argue that any application of the Miller test on music is doomed to fail, and even that the Miller test itself is unconstitutionally vague and overbroad, since so many of its standards are not clear (e.g. “community”, “standard”, “patently”,…) (Beatty 1991:649-655). The 2 Live Crew Defense attorney Rogow concludes that the obscenity of records can and should be discussed, but never in a court of law.

IV. POPULAR CULTURE AND THE WEB OF LAW ENFORCEMENT

Next to the court proceedings, law enforcement activities have in remarkable fashion entered the censorship controversy. Particularly interesting from a social control perspective are the various ways in which police have managed to control music without any legal basis, and how law enforcement activities have occasionally preceded rather than followed judgments in court and/or the passing of legislation. Strikingly, very little of the literature deals with these issues explicitly. Many of the law review papers I have consulted, for instance, discuss in detail the legal aspects of the musical court cases but only mention law enforcement issues in footnote or in passing. Police activities on music concern unconcerted, sporadic actions by individual law enforcement agencies throughout the US, as well as more harmonious activities as the result of direct police cooperation. The 2 Live Crew case, the Charles Freeman arrest, and the condemnation of the Body Count song “Cop Killer” have been important catalysts to more or less organize police activities.

1. Sporadic Action

Law enforcement officers are neccesarily involved with the enforcement of laws. With rock and rap concerts drawing crowds of up to tens of thousands listeners, the task of controlling the masses is not always an easy one. If only intended for safety reasons, this does not prevent some law enforcers from being quite fed up with the surveillance of music fans interested in “the four s?s: smoking, snorting, shooting, and screwing” (San Bernardino County Sheriff, Floyd Tidwell, quoted in Roldan 1987:219). Crowd control during rock and rap performances is a major police concern, one that is easily related to safety and security, rather than censorship.

Several examples can be mentioned on how police have occasionally tried to control popular music in one way or another. When the first reports on white teenage gangs were spread, many of which were associated with a particular style of music (e.g. heavy metal gangs, punk-rock gangs), heavy metal and punk oriented gang rehabilitation centers became available. The Los Angeles County Police Department is reported to supervise a program called “Back in Control Training Center” designed to de-program and de-metal or de-punk troubled youngsters. The probation officer in charge of this program claims that 80% of the kids who assault their parents are fans of heavy metal (Roldan 1987:220; note that this program is elsewhere identified as being run by two former probation officers, see Marsh 1991:68).

In 1987, a record store clerk in Florida was charged with felony for selling another 2 Live Crew cassette, Is What We Are, to a 14-year old girl. The parents of the girl had called the police to complain of the lyrics. Charges were dropped (Jones 1991:78).

Police were also involved in the Rock Against Racism case. New York citizens had complained about the noise at the Naumberg concerts for several years before the New York City guidelines were passed. The Supreme Court reports that on previous occasions Rock Against Racism had been less than cooperative with city officials, and “at one concert,… police felt compelled to cut off the power to the sound system, an action that caused the audience to become unruly and hostile” (Ward v. Rock Against Racism 1989:2750). This incidence took place in 1984, and some time later the City developed the Use Guidelines (law enforcement activity precedes legislation).

The FBI got into action in 1989 following the song “F*** tha Police” by the black rap band N.W.A. (Niggers With Attitude) (Gates 1990:60). FBI Assistant Director (National Public Relations Director?) Milt Ahlerich sent a letter to the N.W.A. distributor saying that the N.W.A. album Straight Outta Compton “encourages violence against and disrespect for the law-enforcement officer”. Ahlerich said he “spoke for all law enforcement”, but also stated that he just wanted to bring this matter to the attention of the record company (quoted in Adler et al. 1990:58; Right to Rock 1991:7). Also, a network of police fax-machines tracked N.W.A. during their 1989 tour, urging police to stop the shows any which way they could. Several shows were cancelled. In Detroit, the band was held in detention (Right to Rock 1991:7). N.W.A. is reported to have been monitored by the FBI (Donelley 1992:68).

The story goes on and on. In the Fall of 1990 members of the heavy metal band GWAR were arrested by officers of the Charlotte Police and the North Carolina State Alcohol Law Enforcement Division. Band members had simulated anal intercourse during their show. On stage the band sentenced to death a “judge” (doll) who had banned dirty rock music. Before the execution, the judge received anal intercourse from a band member?s plastic fish/penis. As the r

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Waring, Nancy W. (1986) “Coming to terms with pornography: Toward a feminist perspective on sex, censorship, and hysteria.” Research in Law, Deviance and Social Control 8:85-112.

Wishnia, Steven (1987) “Rockin? with the first amendment.” The Nation (October 24):444-446.

Wolfe, Jon C. (1993) “Sex, violence, and profanity: Rap music and the First Amendment.” Mercer Law Review 44:667-686.

Zappa, Frank (1989) The Real Frank Zappa Book. New York: Simon and Schuster.

X. (1983) Music is dangerous (special issue). Index on Censorship 12(1):1-37.

X. (1991) You?ve Got a Right to Rock (third edition). Duke & Duchess Ventures.

Cases Cited

Judas Priest v. Second Judicial District Court of Nevada, 760 P.2d. 137 (1988).

McCollum v. CBS, Inc., 249 Cal. Rptr. 187 (Cal. App. 2 Dist. 1988).

Ward v. Rock Against Racism, 109 S. Ct. 2746 (1989).

Atlantic Beach Casino, Inc. v. Morenzoni, 749 F.Supp. 38 (D.R.I. 1990).

Skywalker Records, Inc. v. Navarro, 739 F.Supp. 578 (S.D.Fla. 1990a).

Skywalker Records, Inc. v. Navarro, 742 F.Supp. 638 (S.D.Fla. 1990b).

Luke Records, Inc. v. Navarro, 960 F.2d. 134 (11th Cir. 1992).



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