In a move that legal authorities say is unprecedented in the history of recorded music, a federal judge in Ft. Lauderdale, Fla., ruled Wednesday that a sexually explicit album by the Miami rap group 2 Live Crew is obscene.
The ruling, which the group's attorney says he will appeal, opens the door for the prosecution of record retailers who sell the expletive-laced "As Nasty as They Wanna Be" album to adults or minors in Dade, Broward and Palm Beach counties.
In his 60-page decision, U.S. District Judge Jose Gonzalez Jr. said he based his decision solely on the content of the album itself.
"It cannot be reasonably argued that the violence, perversion, abuse of women, graphic depictions of all forms of sexual conduct and microscopic description of human genitalia (sic) contained on this recording are comedic art."
It was unclear Wednesday what, if any, national precedent was established by the ruling. But the Florida case has been closely watched by the record industry, which is fighting legal challenges across the country regarding explicit lyrics, including pending mandatory warning label proposals in Louisiana and New Jersey.
In recent months, the controversial album has been ruled probably obscene by local authorities in two other Florida judicial districts. The record has also been deemed to violate obscenity codes in some counties in Indiana and Tennessee, while authorities in Pennsylvania and Wisconsin have issued opinions declaring "Nasty" harmful to minors.
Gonzalez ruled that Broward County Sheriff Nick Navarro acted unconstitutionally when he threatened to arrest music store operators for selling the album earlier this year.
"The action of the Broward County Sheriff's Office in threatening retail music stores with arrest for selling the 'Nasty' recording and presenting them with a copy of a probable cause order is hereby declared unconstitutional as an improper prior restraint of free speech," Gonzalez ruled.
Gonzalez permanently enjoined Navarro from threatening music store operators with arrest for selling allegedly obscene materials.
"Prior restraints are repugnant to the right of free speech," the judge wrote. "It is the court's and not non-judicial officials who must decide whether a specific work is obscene."
Although repudiating the way local authorities had enforced Florida's law, the ruling did not strike down the state's right to prosecute sellers of the album under a state law that sets a maximum penalty of 5 years in jail and a $5,000 fine for selling "harmful material" to minors and a 1-year, $1,000 fine for sales to adults.
Jack Thompson, the Coral Gables anti-pornography activist who alerted Broward County authorities to the album's sexually explicit lyrics, applauded the decision.
"This is great news for American women and children," Thompson said in a telephone interview from the courthouse. "I encourage any family whose child has been exposed to this record to get that child counseling and to get themselves an attorney and take 2 Live Crew to court."
However, Luther Campbell, leader of the controversial rap group, branded the ruling as "censorship."
"I think it's a sad day for the record industry as a whole," Campbell said in a telephone interview. "You've got Guns N' Roses and Andrew Dice Clay sitting next to my album on the record shelves in these stores. Why is my record obscene and their's isn't? There is no way anyone can tell me that they are not singling us out."
2 Live Crew's attorney Bruce Rogow, who specializes in First Amendment cases, said he would appeal the ruling this week in the U.S. Court of Appeals for the 11th Circuit in Atlanta.
"I am certainly disappointed," Rogow said. "This ruling gives ammunition for anybody to shut down any kind of language they dislike. It opens up the door for certain governmental officials to become as nasty as they want to be.
"Some people who don't understand the cultural significance of the rap art form may view the words as shocking or vulgar," Rogow said. "But that does not make the recording obscene."
" 'As Nasty as They Wanna Be' is the first recording in the history of popular music to be deemed obscene," said Trish Heimer, a spokeswoman for the Washington-based Recording Industry Assn. of America.
The record, which has sold more than 2 million copies nationwide, is distributed by Campbell's own company, Skyline Records (formerly known as Luke Skyywalker Records).
Reaction to the ruling by Florida retailers was varied. Charles Freeman, a retailer who has defied police warnings to stop carrying the album in his small Ft. Lauderdale record shop, E.C. Records, says he will continue to sell the multi-platinum selling tape.
"How can they arrest me for selling 2 Live Crew and not arrest me for selling Andrew Dice Clay or N.W.A?" Freeman asked in a phone interview.
Ruth LeVine, assistant to the chairman at the 878-outlet Minneapolis-based Musicland chain and Vicki Carmichael, vice president of Florida's 52-store Spec's chain, said that even if the album had been ruled not obscene, neither company intended to restock the "Nasty" album.
"We removed the album long before the Broward County ruling because of customer complaints," Carmichael said. "Spec's carries only the clean version."
The Broward County case began in March when the County Sheriff's Department received a copy of the album's controversial lyrics from anti-porn crusader Thompson. A detective listened to the tape and found the contents to be "extremely explicit and degrading to the female sex."
On March 9, State Circuit Court Judge Mel Grossman ruled that there was probable cause to find the album obscene in Broward County. Following the ruling, police visited area record stores warning employees that they could be prosecuted under Florida obscenity statutes if they sold the record. As a result, retailers in 28 cities pulled the product from the shelf.
2 Live Crew filed suit in U.S. District Court on March 16 in Ft. Lauderdale, seeking to declare the album not obscene and to stop the Broward County Sheriff from arresting those who sell it to adults.