Are We Losing Our Freedom to Sing?

Two hundred and seventy-nine years ago, the colony of Massachusetts enacted a law stating that “wicked, profane, impure, filthy, and obscene songs . . . corrupt the mind and are incentives to all manner of impieties and debaucheries, more especially

when digested, composed or uttered in imitation or in mimicking of preaching.”

Even Atty. Gen. Edwin Meese III’s 1986 Commission on Pornography, by no means a source of libertarian views, concedes that we have come a long way since 1711. Only visual images would, according to the Meese Report, be sufficiently explicit to awaken the wrath of the law by today’s standards.

It now appears that even Meese himself failed to predict how far his law enforcement colleagues would go to eradicate sinful words from our lips. A Florida music retailer now faces a possible year in jail and $1,000 fine for selling a song--actually, an album full of songs by the rap group 2 Live Crew--to a police officer. Similar prosecutions targeting music are cropping up across the country.

Whatever happened to the First Amendment’s declaration that the freedom of speech shall not be abridged? Through a series of Supreme Court decisions since 1957, our highest court has determined that the First Amendment does not protect “obscene” speech. The Court went on to explain that for speech to be obscene it must meet three conditions: Appeal to a “prurient” interest in sex, contain descriptions or depictions of sexual conduct which are “patently offensive” to “contemporary community standards,” and lack serious literacy, artistic or scientific value.

The Court seems content with its nice “three-pronged test” for obscenity. There is something appealing about such a test. It gives the semblance of objectivity and provides fodder for law school students hungry for fast and easy rules of law. Most attorneys can give a rough rendition of this three-pronged test for obscenity, known as the Miller test, yet no one is capable of telling for certain whether something is obscene before a jury renders its decision.

For example, when this test is applied to the controversial 2 Live Crew recordings, one would question whether the lyrics from the “As Nasty as They Wanna Be” album appeal to any interest in sex, whether prurient or not. Moreover, since rap music cannot be said to lack artistic value, one would logically conclude, as the Florida retailer did, that the album cannot be obscene. Nevertheless, a jury has applied the test and voted to convict the retailer. Thus, not even the most careful retailer can know for certain whether a particular work is obscene before selling it.

The retailer may not know until the trial date whether the relevant community is that of the town, the county or the entire state. Previous cases provide little guidance either, since the elusive standard must be contemporary and is, therefore, subject to change from day to day. By the time the law finally determines that a 2 Live Crew album is obscene, the sale has already been made and the “crime” committed.

As long as prosecutors were targeting only “adult” shops in red-light districts, it mattered little to the courts or the citizenry that few people know what a prurient interest in sex is, or how offensive something must be in order to be “patently” offensive to comunity standards. The average citizen’s insulation from the dangers of obscenity laws came to a dramatic halt this year. Prosecutors are now using these laws to charge art museums and mainstream record stores with pandering obscenity. We laugh at the old Massachusetts law of 1711, but at least it was not enforced. Today, under ostensibly more reasonable laws, even popular singers are being handcuffed after their concerts. The time has come to rid ourselves of government interference in what we choose to watch or listen to.

Let’s accept for the moment the notion that some speech is so foul, so offensive, and so lacking in any other virtues that it does not merit the protection of the First Amendment. It does not follow that government has a duty to protect adults from buying it.

Certainly the 2 million people who have bought the 2 Live Crew album do not want that kind of government “protection.” Those who chose not to buy the recording obviously do not need the government’s protection. The only people served by the law are those who are offended at the thought that someone, somewhere, sometime, may enjoy reading, looking at or listening to such speech--and it is precisely to protect us from such people that the First Amendment was written.

Certainly we should shield children or involuntary adult witnesses from having offensive speech thrust upon them. That is a far cry from preventing access by willing adults to the “offensive” expression of others. Recent developments make it evident that when we abridge the freedom of a few, the rights of all of us are in danger.

If our First Amendment means anything at all, it is that government shall make no law abridging the freedom of consenting adults to engage in offensive speech--even patently offensive speech with no artistic value.

See letters to Counterpunch, F4.