Prosecution of Album Poster Case Upheld

Times Staff Writer

Producers of the Dead Kennedys' "Frankenchrist" album and lead singer Jello Biafra are not constitutionally protected from criminal prosecution for an allegedly pornographic poster packaged with the album, a judge ruled Wednesday.

Municipal Judge Sherrill D. Luke rejected arguments that singers, manufacturers and distributors of record albums cannot be held responsible for sale of their material to children, ruling that a state law banning distribution of "harmful material" to minors can be applied to virtually anyone involved in that distribution.

Moreover, the First Amendment does not necessarily protect artists and record manufacturers from prosecution when they take no safeguards to ensure that such material is not sold to minors, Luke said.

"Stripped of the legal niceties, the deciding question here is whether or not the statute in question is valid as applied to these defendants. All things considered, the court believes the statute in question is so valid," Luke said. "I don't feel the constitutional guarantees of free speech and due process would be violated if the defendants were to be prosecuted under this statute."

Luke's ruling addresses only the question of whether Biafra and the four other defendants can legally be prosecuted for inserting in their album a poster by well-known Swiss artist H. R. Giger depicting 10 sets of male and female genitals engaged in sex. A jury will decide whether the law was actually violated.

The Los Angeles city attorney's office filed misdemeanor criminal charges against Biafra, whose real name is Eric Boucher, and the other defendants after a Sylmar woman complained that her teen-aged daughter had purchased the album for her 11-year-old brother at a Wherehouse music store in Northridge.

The American Civil Liberties Union and other defense lawyers had sought to have the charges dismissed, arguing that artists have no way of controlling the sale of their material to minors--assuming it is "harmful" to children--other than simply not producing it.

"We would be reduced to reading, seeing, watching that which is fit for minors. I wouldn't want that," said Biafra's attorney, Philip A. Schnayerson, pointing out that Wherehouse outlets have already removed the album from their shelves.

Defense attorneys said they will appeal Luke's ruling before the March 25 arraignment date he set. The defendants, if convicted, face a maximum penalty of one year in jail and a $2,000 fine.

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