Obscenity Laws and Music
I am focusing on laws governing obscenity, specifically in music. This is important because many people blame music for their deviant actions.
These are candid thoughts from musicians on their music and how it affects people.
The first prosecution for obscenity took place in 1815. The problem of defining obscenity has caused much anguish and deliberation. Regarding free speech and obscenity, the United States has maintained the status quo since the 1950’s (Bicket, 1998, p.2).
Obscenity is defined as material which (a) an average person, applying contemporary community standards, would find as a whole to appeal to the prurient interest; (b) depicts or describes, in a patently offensive manner, sexual conduct as defined by applicable state law; (c) taken as a whole, lacks serious literary, artistic, political or scientific value (Miller v. California, 1973). Indecent material is defined as that which describes sexual or excretory activities and organs in a patently offensive manner at times of the day when there is a reasonable risk that children will be in the media audience. (FCC v. Pacifica Foundation, 1978). (Hammond, 1996)
My focus is that music cannot always be blamed for people breaking the law. Music is covered in the news and is many times, controversial. Many believe that music can affect us negatively. Music can affect us, but many overreact and use it as an excuse or a scapegoat when they do something morally wrong. Often music and the media in general are blamed for many of society’s problems.
I have three points: Problems with obscenity, recent obscenity law, and solutions to the obscenity problem.
“I’ve never, ever written a song intended to hurt anybody. It’d be a very bad career move, because if people shot themselves after listening to my records, there’d be nobody left to sing for.”— Ozzy Osbourne from Metal Mania
Problems with Obscenity
Criticism of music is not new. For example, during the 1920’s, parents feared that jazz would erode the morals of their children. Many artists, including the Dominoes and Elvis Pressley were targeted in the ‘50’s. In the ‘60’s, the Beatles, anti-war, and pro-drug music were a matter of concern. Sex Pistols in the ‘70’s, Public Enemy and Madonna in the ‘80’s, and in recent years, rock and rap music. Jerry Berman, executive director of the Center for Democracy and Technology, a high-tech and civil liberties organization said, “In trying to protect children, you cut off the rights of adults.” (The Entertainment Litigation Reporter, 1992)
According to an informal survey, American parents lack enough time and technological expertise to monitor and control what their children see on TV and cable, hear with music or play or interact online (The Entertainment Litigation Reporter, 1992).
Although most do not suggest music censorship, people are concerned that certain music influences, encourages, or promotes negative behavior in children (Lury, 1999). All over the US, teenagers are surrounded with sexual references by pop culture. But the openness about sex has not translated into open discussions at home. Kids mostly find out about sex from the media and their friends.
In discussing whether heavy metal music is liable for violence against women, Lury (1999) states, “No casual relationship has been found between heavy metal music and violence…Regardless of whether fans comprehend the lyrics, lawsuits have been brought alleging that heavy metal music was the proximate cause of physical injuries…”
The article continues to say that music, specifically heavy metal music, can almost certainly never be the only cause of violence. For every person who alleges that heavy metal music caused him or her to act in a negative manner, another believes the music has had a positive influence on his or her life. Music is likely not the proximate cause of this violence. Too many additional factors exist which contribute to violent tendencies in people, including environment, home life, economic status, and mental state. One cannot conclude that there is a cause-and-effect relationship. The courts have always found in the musicians favor. Musicians should not be held fully liable for the music that they write, record and produce regardless of the potentially negative effects because music alone cannot cause such severe harms (Lury, 1999).
The argument over evidence of the psychological impact of broadcast indecency on children comes in many forms. Many say that media portrayals of violence are at least partially to be blamed for the excessive violence in society. In recent history, many people, including former presidential candidate Bob Dole, have had problems with “gangsta” rap and heavy metal music. They blame the violent lyrics and imagery of the music (The Entertainment Litigation Reporter, 1992).
In Communications & the Law, Douglas Bicket discussed obscenity and free speech. He said, “The question of defining a publication or communication as hateful or obscene raises two fundamental free speech issues: To what extent can the moral precepts of the majority in society restrict the free expression rights of a minority, in the absence of any quantifiable harm done by that expression? And at what point must society restrict unbridled free expression in the interested of the greater good?” (1998, p.1)
This topic seems to be debated sporadically, depending on current events. For example, music was blamed for motivating the Columbine shooters. Concert promoters were blamed for several women being raped during the Woodstock 1999 concert because they booked hard-core rap-metal bands that provoke their fans to violence (Lury, 1999).
In England, two girls were killed at a New Years Day party in 2003. It caused quite a stir, with parents blaming music because the two teenagers were caught up in a gang shoot-out. Kevin Norris, president of the Police Superintendents; Association, said, “I am not in favor of all-out censorship because it only makes records more attractive. But I understand people’s concerns about the link between this gun culture and the glamorous image it is given in the music and film industries.” (Hutchison, 2003, p.7). I agree that when censorship is attempted on music, it makes albums more popular.
Obscenity lawsuits are complicated. To be successful in an obscenity case, prosecutors must follow carefully prescribed paths to decide whether material is obscene, in collecting and seizing evidence, and in making arrests (Pember, 2003, p. 449).
The case of Skyywalker Records Inc. (now Luke Records) v. Navarro, 739 F. Supp. 578 (S.D. Fla. 1990) took place in the early ‘90’s and involved rappers that called themselves “2 Live Crew.” On May 7, 1992, the U.S. Court of Appeals for the 11th Circuit reversed the June 6, 1990 decision of U.S. District Judge Henry Gonzalez of the Southern District of Florida, declaring that their album “As Nasty As They Wanna Be” was legally obscene (Perry, 1992, p. 5).
The debate about 2 Live Crew and its album brought unprecedented media coverage all over the U.S. It made the album more popular, and it is very likely that they sold more records due to the controversy. Many have defended music that was offensive to people (New York Law Journal, 1992, p.5). Law Professor and defense attorney Bruce Rogow argued, “People will crawl over cut glass to get something the government says they can’t have.” (Lury, 1999). Most recently, we find this with flavored e-cigarette cartridges or soda pop. Some of the jury found that some of the music was humorous and had art in it (The Entertainment Litigation Reporter, 1990). The group members of the band said that the album was meant to be musical comedy in street language. The group even came out with an edited version called As Clean As They Wanna Be (New York Law Journal, 1992, p.5).
The case brought up several good points. The defense attorney argued that “one person’s vulgarity is another person’s art.” IN contrast, the prosecutor said that the right to free speech is not absolute, saying, “The First Amendment does not give you the right to say what you want, when you want and where you want. With rights and freedom come responsibility” (The Entertainment Litigation Reporter, 1991).
Carlton Long, an African American Rhodes Scholar and assistant professor of political science at Columbia University, stressed that there was need to consider the content of this in its cultural context (Lury, 1999).
In McCollum v. CBS, Inc., 202 Cal. App. 3d 989, 998, (1988), the court stated that “musical lyrics and poetry cannot be construed to contain the requisite ‘call to action’” (The Legal Intelligencer, 1995, p.6).
Bicket, Douglas. (1998, December) Drifting Apart Together: Diverging Conceptions of Free Expression in the North American Judicial Tradition. Communications & the Law. Vol. 20, Issue 4, p.1-38.
Linz, D. & Donnerstein, E. (1995) Discrepancies between the legal code and community standards for sex and violence. Law & Society Review. Vol.29 Issue 1, p.127, 42p.
The Entertainment Litigation Reporter. (1990, November 12) 2 Live Crew Acquitted in Florida Obscenity Case.
The Entertainment Litigation Reporter (1991, January 14) Freeman Fined $1,000 for Selling 2 Live Crew Album.
The Entertainment Litigation Reporter (1992, June 22) 11th Circuit Finds 2 Live Crew Album is not Obscene; First Amendment: State of Florida v. Campbell.
Hammond, Allen S. (1996) Indecent Proposals: Reason, Restraint and Responsibility in the Regulation of Indecency. Villanova Sports and Entertainment Law Journal. Vol. 3, Issue 259.
Holston, N. (1999, May 9) As violence grows, critics debate notion of censorship. Star Tribune, pp. F1.
Hutchison, Robin. (2003, January 6) Cops Tell Music Bosses to Curb Gun Culture; Ban the Gangstas. Daily Star. P. 7.
The Legal Intelligencer. (1995, January 27) Legislation. P.6.
Lury, Alexis A. (1999, Fall) Time to Surrender: A Call for Understanding and the Reevaluation of Heavy Metal Music within the Contexts of Legal Liability and Women. Southern California Review of Law and Women’s Studies. Vol. 9, Issue 155.
Perry, Robert J. (1992, June 26) Important Ruling in the War Over Pop Music Censorship. New York Law Journal. P. 5
Nichols, John. (2003, May 27) Wal-Mart is a Threat to Stoughton. Capital Times (Madison, WI). P. 8A
Pember, Don R. (2003) Mass Media Law, p.439-441, 449.
Soundgarden v. Eikenberry, 123 Wash. 2d 750 (1994)
Tuite, Patrick. (1992, May) Senate Bill Awarding Obscenity Damages’ Fit for Censorship. Chicago Lawyer. P. 11.
This content is accurate and true to the best of the author’s knowledge and is not meant to substitute for formal and individualized advice from a qualified professional.
Questions & Answers
© 2019 Mark Richardson