"This is a case between two ancient enemies: Anything Goes and Enough Already."
Those are the opening words of an unprecedented 62-page decision handed down Wednesday in which a Ft. Lauderdale, Fla., federal judge ruled for the first time in the history of recorded music that popular songs can be considered obscene.
When U.S. District Judge Jose Gonzalez ruled that the lyrics of the Miami rap group 2 Live Crew's expletive-laced "As Nasty as They Wanna Be" album are obscene, he not only left South Florida retailers liable for arrest for selling the sexually explicit record, he opened the door on a national debate concerning the future of artistic expression in pop music.
Some of the questions being asked are:
What kind of impact will this decision have on retailers who sell controversial recordings around the nation? What other legislative actions or judgments might be forthcoming? What strategy will the record industry adopt to combat local obscenity prosecutions? Turnline
How will the creative community respond?
Elliot Mincberg, legal director for People for the American Way, the Washington-based First Amendment organization, warns that although the ruling has no legal force outside of Southern Florida, record companies should be cautious.
"Certainly, if I was a record company, I would look at this decision very carefully and consider its implications," Mincberg said. "My concern is that this is part of an effort to limit expression which goes far beyond obscenity. Along with political efforts to legislate mandatory labeling, it could be perceived by some as an attempt to restrict culture."
Mincberg suggested that the ruling not only makes it permissible for state courts across the nation to find the "Nasty" album obscene, it also opens the door for additional prosecutions pertaining to other "explicit" records.
"Although the judge clearly said that any other record would have to be judged on the individual circumstances by individual community standards in specific criminal cases," Mincberg said. "The implication is still present."
A spokesperson for the Recording Industry Assn. of America, an organization which represents all the major record companies, told The Times on Friday that its legal department was examining the possibility of filing a friend-of-the-court brief on behalf of 2 Live Crew to support the rap group during its appeal of the decision. Prior to the decision, the official stance of the RIAA had been not to interfere with local obscenity prosecution cases.
Mike Greene, president of the National Academy of Recording Arts and Sciences, said he hoped that the threat of censorship might act as a unifying force.
"A victory like this for the conservatives is certain to encourage the sharks to start circling, but maybe that's what it's going to take to wake the industry up," Greene said in a telephone interview from NARAS' New York office. "The problem is that most people in the record industry refuse to look at what the broader context of what this issue really means.
"They don't seem to understand that the precedent being set here isn't really about Luther Campbell's sexually explicit music--he's just out on the farthest extreme of this attack. This ruling is about freedom of speech," Greene added. "The same people who are trying to squelch freedom in the National Endowment for the Arts and in literature are behind this. Now that they don't have communism to worry about anymore, it's rock 'n' roll that's under attack."
Brian Turner, president of Los Angeles' Priority Records, said record companies ought to be concerned that anti-porn crusaders may use this decision to begin targeting other kinds of expression in pop music. Turner's Los Angeles-based record label received a "policy" letter from a Federal Bureau of Investigation agent in 1989 charging that a song by rap group N.W.A encouraged violence against law enforcement officers.
"This decision is like pouring gasoline on fire," Turner said . "The 2 Live Crew case is about sexually explicit material, but I'm afraid this is just the beginning. These right-wingers will soon start going after songs describing social and political opinions they don't agree with."
While the Florida court ruling is unlikely to have any effect on distribution of the "Nasty" album in Southern California, Mitch Perliss, director of purchasing for Show Industries (parent company to the 73-store Los Angeles-based Music Plus chain), said he was shocked by the Florida obscenity ruling.
"Personally, I find it appalling," Perliss said. "Officially, our policy is that we're going to continue carrying the album. As long as our consumers want it, we will stock it."
Mark Siegel, executive vice president of the Los Angeles-based Shamrock Holdings Inc., parent company to Show Industries and the 137-store Sound Warehouse chain, said his corporation will continue to sell explicit records with warning stickers where community standards approve of such music, but will not stock the "Nasty" album in any of its Southern Florida Sound Warehouse stores.
"Whenever a judge in court finds some expression of speech obscene, all speech is chilled. We hope this is an isolated situation," Siegel said. "Instead, we favor labeling products and restricting labeled products to the sale of adults."
First Amendment advocates are also rallying on the issue. Robyn Blumner, executive director of the American Civil Liberties Union in Florida, says the ACLU intends to file a brief on behalf of the band on Monday.
"We are utterly shocked that adult citizens in Florida are proscribed from purchasing a musical recording," Blumner said. "I think this ruling has substantial national implications. It's the wedge in the door. I think it opens up the opportunity for all albums that reflect a darker reality to come under the scrutiny of censorship."
The notion of declaring something obscene in a federal court is unusual, legal authorities say. Experts say that obscenity cases, almost exclusively, take place in state courts.
In the 2 Live Crew case, Judge Gonzalez ruled that, based on his perception of community standards, the album met the 1973 U.S. Supreme Court obscenity test. Under the guidelines of the Miller v. California obscenity test, something can be declared obscene only if it is patently offensive, appeals to the prurient interest and lacks serious literary, artistic, political or scientific value.
Gonzalez suggested in his ruling that retailers arrested for selling the album might not necessarily be found guilty of violating "criminal" obscenity laws. Record store owners accused of violating the law would be entitled to a criminal trial in a state court (probably by jury). To obtain a conviction, the state would have to prove the record was obscene by a much more comprehensive test.