Obscenity Laws and Music-Part 2: Obscenity Law

In his article in Chicago Lawyer, Patrick Tuite argues that there are always people who want to impose their morality on others. He says, “Every once in a while, there is a new movement to censor objectionable materials from adults. Adults, however, are pretty good at deciding what they should read and see. Trash is usually rejected and quality lasts.” (Tuite, 1992, p.11).

The FCC has given regulations requiring radio stations to limit the airing of indecent programming to the hours between midnight and six o’clock a.m. (The Entertainment Litigation Reporter, 1992). I have noticed this personally, that as I have listened to the radio between these hours that there is some swearing on the radio.

In 1995, there was a bill proposed to ban record stores from selling to minors music with parental warning labels (Legal Intelligencer, 1995). Although this is a good idea and it has worked out, it can be just like prohibition. If people want something, they can find some other way to get it. Children under the age of 18 can have adults buy them music. But what obligation do those that sell music have? They just want money and to not be arrested. It is up to parents to control what comes into their homes and into the lives of their children. This can be a problem if parents don’t care what media their children hear or see.

In some instances, the Brandenburg case has been applied to music. But it is found to be inadequate because it asks the wrong questions. Brandenburg requires that the speaker’s intent to be the cause of imminent illegal activity. Often many people contribute to songs on an album and each may have different intents. Courts have suggested that in order to find that music is an incitement, the music must be directed to a person or group of persons (Lury, 1999).

Liability should be placed on the individual who committed the illegal act. In studies on adolescents, it was found that only a small percentage of children identified the same meaning of a song as a composer. In Matarazzo v. Aerosmith Productions, Inc., it was suggested that music may attract people who may be encouraged by the music to act violently (Lury, 1999).

Two tests have been used to determine if works are obscene:

1. Roth-Memoirs test- (1957): 1. The dominant theme of the material taken must appeal to prurient interest in sex. 2. A court must find that the material is patently offensive because it affronts contemporary community standards relating to the description of the representation of sexual matters. 3. Before something can be found to be obscene, it must be utterly without redeeming social value (Pember, 2003, p.439). This test looks for a problem, for the negative.
2. Miller test- (1973): 1. An average person, applying contemporary local community standards, finds that the work, taken as a whole, appeals to prurient interest. 2. The work depicts in a patently offensive way sexual conduct specifically defined by applicable state law. 3. The work in question lacks serious literary, artistic, political, or scientific value (Pember, 2003, p.440-441).

The Miller test looks for the positive in the medium that it is being tested on. In some ways, the Miller test is more specific. In other ways it is still broad, especially the third prong of the test.

The problem with a jury applying the impact on an average person is to be certain that the material is not aimed at a deviant group, it will be judged on its impact on an average person, instead of a particularly susceptible or sensitive person-or a totally insensitive one (Linz, 1995).

The New York Law Journal states that each point of the Miller test is problematic, which raises critical interpretive issues, which are only partially clarified by case law. To show that a work focuses on sex, for example, the work must provoke “a shameful or morbid interest in nudity, sex...” and not merely excite “normal and healthy sexual desires.” Further, the work may personally offend some members of the community but not “patently offend” the community if it or similar works have gained acceptance in the community. The work’s “social value” is not relevant; only “serious literary, artistic, political, or scientific value” redeems an otherwise obscene work. This value is assessed from the perspective of a “reasonable person,” without regard to “contemporary community standards” (Lury, 1999).

In ‘As Nasty As They Wanna Be,’ (Skyywalker Records Inc. v. Navarro, 739 F. Supp. 578 (1990)) the court said, “A work cannot be held obscene unless each element of the (Miller) test has been evaluated independently and all three have been met” (The Entertainment Litigation Reporter, 1992).

Some states have had bills regarding obscenity, such as the Texas bill, which discouraged the state to oppose investment by a corporation or business that records or produces any song, lyrics, or other musical work that advocates: 1. Murder, assault, assault on peace officers, sexual assault, and robbery; 2. Necrophilia, bestiality, or pedophilia; 3. Illegal use of controlled substances; 4. Criminal street gang activity; 5. Degradation or denigration of females; or 6. Violence against a particular sex, race, ethnic group, sexual orientation, or religion (Lury, 1999).

One reason that this bill was not passed was musicians who rely on record labels for distribution would be forced to avoid writing songs about listed subjects, making the bill a content-based restriction. It was also too broad (Lury, 1999).

Maryland had a similar bill which was also found to be too broad. It included music that “glamorizes,” “describes” or “advocates” the listed behavior, instead of just advocating a behavior (Lury, 1999).

In Soundgarden v. Eikenberry, 123 Wash. 2D 750 (1994), New York’s definition of obscenity adjusted for minors was discussed. It was not void of vagueness. “Harmful to minors” means that quality of any description or representation, in whatever form, of nudity, sexual conduct, sexual excitement, or sado-masochistic abuse, when it predominantly appeals to the prurient, shameful or morbid interests of minors, and is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors, and is utterly without redeeming social importance for minors (Soundgarden v. Eikenberry, 123 Wash. 2D 750 (1994)).

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.