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rock and rap censorship
While the censorship of art is not a new phenomenon, recent years have witnessed renewed and intensified attempts to control popular culture. In particular, rap and rock music have come under increasing attack from various sides representing the entire left and right political spectrum, purportedly for their explicit sexual and violent lyrical contents. In this paper is investigated which moral codes underlie these claims against popular music, how social movements mobilize actions around these claims, and the way in which they are manifested in mechanisms of control targeted at rap and rock music. Moreover, I explore how the performers and fans of these musical styles have in turn articulated counter-claims, and how they have mobilized social forces in defense of the free expression of their art-form. The issue is addressed through an historical examination of the actions undertaken to censor and control rap and rock music since the founding of the Parents Music Resource Center (PMRC) in 1985.
I. SETTING THE STAGE: THE PARENTS, THE SENATE, THE LABEL
Concerns over rock ‘n’ roll music have lead to public debate, political and legal actions, and law enforcement activities ever since its "invention" in 1955 (Jones 1991:75-76; McDonald 1988a:294-302). However, since the formation of the PMRC in 1985, a new, more organized and systematic attack to control popular music has been launched.
1. The Invasion of the "Washington Wives"
The Parents Music Resource Center was founded in 1985 as the result of the unusually combined efforts of a few concerned parents (Coletti 1987:421-426; Gray 1989a:151-153, 1989b:6-8; Kaufman 1986:228-231; McDonald 1988a:302-106; Roldan 1987:222-231). Tipper Gore, wife of current Vice-President and then Senator of Tennessee Albert Gore, bought the album "Purple Rain" by Prince for her then 11-year old daughter. She was shocked to find out that one of the songs on the album, "Darling Nikki", contained a reference to female masturbation. The same Prince song was also listened to by the daughter of free-lance journalist Kandy Stroud, who was shocked to discover that her daughter was exposed to "unabashedly sexual lyrics" (Stroud 1985:14). Around the same time, Susan Baker, wife of former Treasury Secretary and White House Chief of Staff James Baker, overheard her 7-year old child sing along to "Like a Virgin" by Madonna, which lead her to realize "what’s going on in pop music" (quoted in Roldan 1987:223). Also around the same time, Pam Howar, wife of a wealthy construction executive, noticed the lyrical contents of the songs she was dancing to during her aerobics classes, and discovered that her daughter was listening to the same kind of music over breakfast. In April of 1985 the concerned parents, together with Sally Nevius, wife of former Washington D.C. council chairman John Nevius, and Ethelynn Stuckley, wife of former Congressman Williamson Stuckley, joined forces: on May 13, 1985, they formed the non-profit, tax-exempt organization Parents Music Resource Center. Under the Presidency of Pamela Howar, the PMRC compiled a mailing list to appeal to similarly concerned parents and to raise money.
Soon after its formation, affiliates of the PMRC included several U.S. Congressmen and Representatives. On the same day of the PMRC’s formation, Edward Fritts, President of the National Association of Broadcasters (NAB), wrote over 800 letters to radio and TV stations warning against pornographic record lyrics, and requesting that record companies affix lyric sheets to all recordings sent to broadcasters (U.S. Senate 1985:133; see Kaufman 1986:236). The main goals of the PMRC were to inform parents about the music their youngsters were exposed to through radio broadcasts, in record stores, or at concerts, and to request the record industry for voluntary restraint with regard to explicit and obscene music. The PMRC specifically proposed a rating system, similar to the movie ratings system used by the Motion Picture Association of America (MPAA), and requested that specific warning labels be placed on album covers (Coletti 1987:424-425). The PMRC also suggested that song lyrics be printed on the album covers, records with obscene covers be placed under the counters of record stores, record companies should reconsider their contracts with performers who displayed sex or violence during shows or on records, radio stations be furnished with lyric sheets, backward masking be banned from all songs, and music videos be rated according to both lyrics and performances.
To gain exposure, the PMRC started the publication of a monthly newsletter and sent letters to sixty music companies, to the National Association of Broadcasters (NAB), and, most importantly, to the Record Industry Association of America (RIAA). The RIAA, which represents record companies responsible for 85% of the total sales of records in the U.S., initially responded fiercely against any of the PMRC’s demands, invoking First Amendment rights for the free exercise of speech and music (Goodchild 1986:161). On August 5, President Gortikov of the RIAA sent a letter to PMRC President Pam Howar in which he stated that the RIAA agreed to have a warning label put on all future albums which contained songs with explicit lyrical content (U.S. Senate 1985:98). The label would read: "Parental Guidance: Explicit Lyrics". To all other PMRC demands, the RIAA refused to give in. In a letter of August 7, 1985, Pamela Howar, President of the PMRC, expressed the PMRC’s discontent with Gortikov’s proposal. The PMRC was not satisfied because the label did not have a diversified, specific rating decided upon by a panel. In response, on August 13, 1985, the RIAA sent a letter to the PMRC stating: "Explicit is explicit... There are just no ‘right/wrong’ characterizations, and the music industry refuses to take the first step toward a censorship mode to create a master bank of ‘good/bad’ words or phrases or thoughts or concepts" (cited in U.S. Senate 1985:103; cf. Kaufman 1986:230).
In response to the RIAA’s refusal to further discuss the issue, the PMRC made it clear that it was not advocating censorship in any way, but only sought to find ways to inform parents and children about the products the record industry made available, stressing that their actions were a consumer issue. However, the RIAA’s response provoked opposition from record companies, radio and TV representatives, and musicians, who felt that the RIAA’s label amounted to censorship and an abridgement of First Amendment rights. The dispute finally shifted to Capitol Hill, where a hearing was held before the Senate Committee on Commerce, Science, and Transportation on what by then had come to be known as the issue of "porn rock".
2. The Senate Hearing on Record Labeling
The Senate Hearing on record labeling, held on September 19, 1985, was arguably the best attended and media-covered hearing ever held before any Senate Committee (Gray 1989a:153-155, 1989b:8-10; Kaufman 1986:231-233; Roldan 1987:231-240; Scheidemantel 1985-1986:467-470; see U.S. Senate 1985 for a transcript of the hearing). There appears to be little certainty on who decided to hold the Senate Hearing, but the fact that many PMRC affiliates were wives of important Washington politicians or businessmen, and that the wives of the Committee members Albert Gore, John Danforth, and Ernest Hollings were affiliated with the PMRC, is probably not coincidental. The purpose of the hearing, according to Committee Chairman John Danforth, was to discuss rock music that dealt explicitly with sexual topics and the glorification of violence. Senator Danforth stressed that "the reason for this hearing is not to promote any legislation... But simply to provide a forum for airing the issue itself, for ventilating the issue, for bringing it out in the public domain... so that the whole issue can be brought to the attention of the American people" (U.S. Senate 1985:1). The Chairman then opened the Hearing, being careful to mention that people could raise their concerns yet asked them to not "needlessly use expressions that may be in bad taste" (p.2).
The first witnesses were the U.S. Senators, Hollings, Trible, Gore, and Hawkins (not a Committee member). All raised concerns over the influence of recent forms of rock music for the children of America. A few issues raised deserve attention: Senator Hollings indicated that he would seek a way, if possible, to do away with the "outrageous filth" of "music interspersed with pornography" (pp.4,5), and he was joined by Senator Exon who also advocated legislation or some form of regulation (p.52). Senator Trible referred to the subtle damages to children by songs dealing with rape, incest, sexual violence and perversion. Senator Gore asked for self-restraint on the part of the record industry, and invited Senator Hawkins referred to teenage suicide and overt expressions and descriptions of "violent sexual acts, drug taking, and flirtations with the occult" (p.6).
Then Susan Baker, Pamela Howar, Sally Nevius, Tipper Gore, and Jeff Ling took the witness stand as representatives of the PMRC. They alluded to the relevance of rock music for many U.S. teenagers and the enormous amounts of records that are sold. The cause for their concern was related to teen pregnancies, teenage suicide rates, and rape, at the same time pointing out songs by Prince, The Time, and various heavy metal bands. Tipper Gore testified that the PMRC was no longer interested in a rating system but asked record companies to voluntarily label their products on the basis of the recommendations of a one-time panel. Gore specified that "voluntary labeling is not censorship" and that the PMRC "is not advocating any Federal intervention or legislation whatsoever" (p.13). Gore reported on the suicide by Steve Boucher, committed while listening to AC/DC’s "Shoot to Thrill", showed several pictures of heavy metal artists and album covers, and pointed out sexual and violent themes in various (mostly heavy metal) song lyrics (newspaper and magazine articles as well as lyrics of some rock songs are enclosed in the senate report). Senator Exon responded favorably to "you ladies for coming here and testifying on the concerns which you have" (p.49), but also wondered what the reason was for the hearings when there was no call for regulation: "can anyone answer that? I did not schedule these hearings." (p.49). Unfortunately, no one said who did schedule the hearings, but Senator Exon later said that he would be interested "in some kind of legislation" (p.52). Susan Baker summarized the PMRC’s point of view indicating the PMRC’s call, not for legislation, but for responsibility and self-restraint in the form of voluntary labeling.
The standpoint of the PMRC was defended by Millie Waterman, Vice-president for legislative action (sic) of the National Parents and Teachers Association. Waterman raised concern over the well-being of America’s children and referred to the NPTA’s 1984 attempt to have the RIAA agree on voluntary restraint. Waterman said she was pleased with the RIAA’s label, but wanted a more detailed rating system introduced, so that the potential buyer knows what is precisely on a record.
The musicians’ standpoint was represented by Frank Zappa, John Denver, and Dee Snider. After Frank Zappa had read out the First Amendment to the Constitution of the United States, he argued forcefully against the PMRC’s demands which he considered "equivalent to treating dandruff by decapitation,... whipped up like an instant pudding by "the Wives of Big brother" (pp.52-53). He argued that there was simply no reason at all to call the record industry to self-restraint. Zappa argued that the RIAA had given in to the record label merely because it sought to have the "Blank Tape Tax" passed. Zappa here referred to the Home Audio Recording Act, which would levy a 10-15% tax on home taping and give royalties to the recording industry for sales of tape recorders and blank tapes. The Home Audio Recording Act is the proposed bill H.R. 2911 and is sponsored by the RIAA (Gray 1989a:154). Zappa noticed that Senator Strom Thurmond ran the committee responsible for legislation, and that his wife was affiliated with the PMRC (Roldan 1987:231). Zappa also alluded to the fact that three Senators on the Committee had their wives in the PMRC, and therefore later in the hearings stated: "I don’t think this is private action" (quote from Frank Zappa’s song "Porn Wars", which includes several samples of the Senate Hearing testimony; not in transcripts). Finally, Zappa indicated the danger of the stigmatization effects for the musicians that might result from the label system, and the fact that voluntary labeling could lead to "opening the door to an endless parade of moral quality control programs based on things certain Christians do not like" (p.54).
The next musicians’ witness was John Denver. Somewhat more moderate than Zappa, Denver stated that he had unfortunately been the victim of censorship following the release of his song "Rocky Mountain High" which, Denver stated, "was banned from many radio stations as a drug-related song. This was obviously done by people who had never seen or been to the Rocky Mountains" (p.65). Denver acknowledged the concerns raised by the PMRC, but attacked the attempts to suppress ideas and the spoken word in a democratic society, drawing a comparison with Nazi Germany.
The last musicians’ testimony was provided by Dee Snider, lead singer of the heavy metal band Twisted Sister. Snider referred to his Christian beliefs and that fact that all his songs were written in that spirit. He specified that all of Twisted Sisters’ songs the PMRC had condemned as containing references to sadomasochism, bondage, and rape, were all misquoted or misinterpreted. Snider also insisted that it is the parents’ job alone to take full responsibility over their children’s upbringing.
RIAA President Gortikov also testified at the Hearing. He indicated that by the time of the Hearing already 24 of the RIAA’s member companies had agreed on the voluntary labeling of records containing explicit lyrics. Any other, more specified form of labeling or rating he denounced as impractical (indicating the RIAA’s companies release some 25,000 new records every year). The printing of lyrics on album sleeves is equally unfeasible since the record companies do not own the rights to the song lyrics, and, finally, the RIAA does not have any authority over the retailers of records so that it cannot control the actual selling of records. Gortikov went on to add five issues the PMRC had ignored: the number of offensive records is minute compared to the total mass of recordings released; most lyrics are positive; rock music is unfairly singled out; music reflects rather than introduces social values; and protective measures designed for children would inevitably also affect adults.
Finally, some interesting testimony at the Hearing was delivered by expert witnesses, including a university professor and a psychiatrist. Joe Stuessy, University of Texas at San Antonio, gave an exposition on the psychology of music, and concluded that heavy metal music contains subliminal and backward messages as well as explicit references to "extreme violence, extreme rebellion, substance abuse, sexual promiscuity and perversion and Satanism" (p.117). Paul King, child and adolescent psychiatrist, pointed out heavy metal’s associations with drug abuse, sex, violence, and the power of evil. Dr. King also recounted that a person who had killed 8 people in New York City was a Black Sabbath fan, and that Ricky Kasso, the teenager in Long Island who stabbed his friend to death and took out his eyes, after which he hung himself, followed Black Sabbath and Judas Priest (p.130). After some shorter additional testimonies, the Committee was adjourned after five hours of debate.
3. After the Hearings: Quiet Before the Storm
Following the Hearing, on November 1 of 1985, the PMRC, and its ally the National Parents and Teachers Association, reached an agreement with the RIAA on the voluntary record label (Joint News Release, November 1, 1985; Coletti 1987:424; see Goodchild 1986:164-165; Gray 1989a:154-155; Kaufman 1986:233-237; Roldan 1987:240-242). The agreement stipulated that the printing of lyrics remained optional and, because of space limitations, cassettes were exempted, bearing only the imprint "see LP for lyrics". Since then, different record companies designed their own label containing the words "Parental Guidance - Explicit Lyrics" or some variation thereof. Frank Zappa designed his own label and first put it on his album "Frnk Zappa Meets the Mothers of Prevention", an allusion to the name of his former band The Mothers of Invention and his recent confrontations with the "Washington Wives".
After the agreement, the PMRC, generally applauding the cooperation of the RIAA, agreed to attack only those products that did not comply to the RIAA’s voluntary label. All three organizations decided to monitor and evaluate the policy for one year. On December 10, 1986, the PMRC held a press conference and denounced the RIAA for failing to comply with the joint agreement. The PMRC, by that time claiming to rely on 100,000 supporters, again sent letters of complaint to different record companies, stating that the labels were too small and that it would increase its efforts to control the release of records with explicit lyrics (Goodchild 1986:165).
The activities of the PMRC and the record industry’s response on the issue since then are not very clear. Some, usually smaller, companies have continued to refuse putting labels on records, and generally the response on the part of the musicians was not favorable, feeling that the RIAA had sold out. Danny Goldberg, leader of the meanwhile formed anti-censorship group the Musical Majority, said "It’s like compromising with terrorists" (in Roldan 1987:242). The sales of records, however, do not seem to have been affected.
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.
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.
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
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