Music and the Law

A Deep Look at How Censorship Affects the Music Industry

I. Introduction

Every culture is defined by its many artistic backgrounds that help describe its history. America, which has become known as a melting pot of different cultures, is no different. But culture can also be defined by the structure of its society. And sometimes, the two can clash. The art form we will look at is through music. Mainly dealing in the 80's and 90's, this new generation of music followed history’s footsteps of popularity and controversy through song and melody.

Just like society, we will follow a structure that will tell a tale that explains how some have tried to censor music’s movement through America in this era. A look at the somewhat obscene nature of the musical era will help set the story. Because through the obscenities that people will hear whether it be lyrical or the style of the artist, when someone is offended, it puts the wheels in motion for those who are covering their ears to attempt to put a stop to this artistic movement.

We then see where the lyrics of one’s song can push others to an extreme. Or do they? That is the question we ask in the incitement chapter of this story. Many hours were spent before a judge determining what the law interprets about these lyrics and whether the First Amendment will protect the speech involved.

Bridging this information together, we look deeper at the issue of censorship. Has it worked? The answer may surprise you. Cases do not explain this chapter, because the people involved, as well as history, will do the narration for me.

In the end, I want to show that there still remains a slight connection between people and the fear that certain music can bring out in them. Although the hip-hop and rock and roll genres have evolved (for better or worse), there are still powers that be that try to exclude certain songs from hitting the airwaves or your local CD rack.

Many sources were put to good use to, not only extract history and the law, but as I said - to tell the story. We come back just as I introduced as the structure of society and the art of some of our idols help form our culture into what we all have become today.

II. Obscenity

Going with the theme of my paper, the first chapter deals with obscenity because the issue sets up the controversy that will ensue. The obscenity issues deal with the explicit lyrics of the artists and, for some, the style that they represent whether it is depicted through on stage performances, music videos or explicit album covers.

The most heavily debated case deals with 2 Live Crew, a popular rap group during the late 80's and early 90's that is based out of Miami, and the obscenity case dealing with their “As Nasty As They Wanna Be” album that was released in 1989. The case is so controversial because it was ruled to be obscene before it was later appealed, reversed and that decision being upheld by the Supreme Court.

After the album sold nearly two million copies, an investigation was put in from the Sheriff’s office in Broward County, Florida, to examine 2 Live Crew’s record. There was an obscenity statute in Florida that some believed the album violated. 2 Live Crew, who already had a history dealing with their albums being ruled obscene in different parts of the country, now had Sheriff Mark Navarro trying to find probable cause for the “Nasty As They Wanna Be” album to be ruled obscene. On March 9th, 1990, Navarro got his ruling that “Nasty” was legally obscene from Judge Mel Grossman. He then ensured that all of the record stores in the county were aware of the ruling and abided by it, thereby seeing the sales of the record ceased in Broward County. Days later, on March 16th, 1990, 2 Live Crew and Skywalker Records filed suit against Sheriff Navarro. During the suit, Sheriff Navarro wanted the court to determine if the “Nasty” album was obscene. That ruling came on June 6th of the same year, ruling in favor of Navarro that the album was, in fact, legally obscene.

The controversial part of the trial was the actual decision-making of the Judge hearing the case, District Court Judge Jose Gonzalez. He came to his decision by applying the Miller test for obscenity. This is a three-prong test that asks individual questions concerning the speech involved. Those questions are:

1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest;

2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law;

3) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

While taking into account to apply the first two parts of the test according to the community standards, Judge Gonzalez took it upon himself to determine these himself because he was a member of the Broward County community since 1958. In doing so, he denied any expert testimony concerning these factors while also deciding that there was no artist value associated with the “Nasty” album.

On May 7th, 1992, “the United States Court of Appeals decided to reverse the decision of Judge Gonzalez” and determined that the “Nasty” album was not legally obscene because it did not meet the prurient interest test and, through expert testimony, did have some artistic value. The court of appeals reversing by concluded the decision, which was later upheld by the Supreme Court.

As a brief look at history, the Miller Test was not the first test to be used to test obscenity from speech, just the latest and most useful.

• The first known test came from a 1868 English case Regina V. Hicklin, that asked “Whether the tendency of the material is to corrupt minds that are ‘open to such immoral influences.’”

• Judge Woolsey’s Test was a sort of two prong case stemming from a case about James Joyce’s book, Ulysses, that asked: a.) determine whether the author’s intent is pornographic or literary by looking at the book as a whole; and b.) determine the book’s dominant effect on normal, reasonable people, not on children or abnormal adults.

• The Roth test and Funny Hill test will look familiar as they start to ask the same questions that are asked from the Miller test. Roth asks only the first prong of the Miller test that deals with the prurient interest. Funny Hill is almost identical to the Miller test, except asking for the third prong to define whether the material has any “social” value. The Miller test replaced Funny Hill as the legal test for obscenity and removed the word “social” from the third prong and expanding the question to involve “serious literary, artistic, political, or scientific value. ”

III. Incitement

“...Rap stars Ice-T and the late Tupac Shakur produced music that arguably glorifies violence. The question is whether it incites violence.”The Bleep! book introduces this idea about incitement. The lyrics of these musicians is considered speech and is protected by the First Amendment. But, those lyrics are not protected if they “would somehow be proven to cause or incite injurious activity. ” The two artists and cases we’ll look at here involve heavy metal rocker (and recent reality show husband and father), Ozzy Osbourne and the late, great hip-hop artist, actor and poet, Tupac Shakur.

The Osbourne case deals with one of his young fans, 19-year old John McCollum, putting a gun to his head and ending his life while listening to an Osbourne record. A year later, in 1985, the boy’s parents filed suit against Osbourne on several charges including negligence and product liability. After the case was initially dismissed. The parents appealed and challenged the court “claiming that Osbourne’s songs contained themes of satanic worship and death, and that particularly the song Suicide Solution had incited their son because it preached “suicide is the only way out.’”

The court ruled in favor of Osbourne after using the Brandenburg test to define the incitement of the speech involved with Osbournes’ lyrics. The Brandenburg test is one of a few tests that deal with incitement. The Test asks two questions:

1) Who is the speaker? Does the person have a history of illegal activity or affiliation with an organization that does so? Do people take the speaker seriously?

2) Is there a likelihood that the espoused actions will be carried out?

Above all else in the trial, after careful examination of the song in question, “Suicide Solution”, it was revealed that the song is actually a tribute to a friend, Bon Scott, a member of AC/DC, who had died from alcohol abuse.

This was not the last sign of trouble for Osbourne and Suicide Solution as another suit was filed by parents of another child who committed suicide after listening to the song. The parents claimed the song incited imminent lawless action, however the court again found in favor of Osbourne saying that the song would lose protection only if it were “directed to inciting or producing imminent lawless action and is likely to incite or produce such action.

The next case of incitement deals with the music from Tupac Shakur. “In April of 1992, Ronald Howard ("Howard") was driving a stolen automobile through Jackson County, Texas. Officer Bill Davidson, a state trooper, stopped Howard for a possible traffic violation unrelated to the theft of the vehicle. During the traffic stop, Howard fatally shot Officer Davidson with a nine millimeter Glock handgun. At the time of the shooting, Howard was listening to an audio cassette of 2Pacalypse Now, a recording performed by Defendant Tupac Amaru Shakur that was produced, manufactured and distributed by defendants’ Interscope Records and Atlantic Records. In an attempt to avoid the death penalty, Howard claimed that listening to 2Pacalypse Now caused him to shoot Officer Davidson. The jury apparently did not believe this explanation, because it sentenced Howard to death.

Davidson’s widow, Linda Davidson, filed a suit against Shakur, Interscope Records and Time Warner. The trial was set for October, 1995, until the defense moved for a summary justice and had the case taken off the court docket. The summary judgement motion was because the plaintiff and defense agreed on the facts of the case and there must be a ruling in favor of the defense based on the law.

As far as the incitement arguments were concerned, the court saw that the album 2Pacalypse Now did not incite violence under the Brandenburg test. This was also the only incident that anyone claimed the album incited imminent, lawless action or conduct three years after the albums release. The Davidsons’ argued that Officer Davidson was killed because Howard was listening to 2Pacalypse Now. The court disagreed saying “it is far more likely that Howard, a gang member driving a stolen automobile, feared his arrest and shot Officer Davidson to avoid capture.”

There also was a motion to dismiss the charges after Shakur had been killed in September of 1996. The court said that his death did not affect their opinion. The court concluded, declining to strip Mr. Shakur of his free speech rights and granted the Defendants motion for Summary Judgement as well as its motion for the lack of personal jurisdiction.

There are a couple lines of thought dealing with incitement. The Drug Warriors believed that it didn’t matter what the song writer intended, but what the offended feels they read or heard. I also asked Professor Mathieu Deflem, and Associate Professor at the University of South Carolina, about the lawsuits dealing with incitement. He said “ Most research shows that incitement is a myth. Also, legally, incitement must present an imminent threat. Frank Zappa once said that if the lyrics of rock songs were influential, then everybody would love each other, because most lyrics by far are about love.”

The only other incitement test mentioned in any of the books or cases was Schenk V. United States. This is where the term “Shouting fire in a crowded theater”, stemmed from. Schenk deals with establishing a clear and present danger through speech or other expression.

IV: Censorship

Peter Blecha, author of Taboo Tunes: A History of Banned Bands and Censored Songs, compared censorship to the Bible story of Adam and Eve and the forbidden “fruit of knowledge.” He says that the “knowledge more likely comes in the form of song, a book, a movie, or a public speech...” and when that knowledge is limited or completely taken away, that is the act of censorship.

The first example of censorship I want to discuss is the Senate hearing on Record Labeling. The PRMC, Parents Music Resource Center, was a group that wanted ways to censor music to protect the explicit lyrics from reaching their children’s ears. There was a Senate hearing organized to discuss the possibility of putting together a label that would alert people to the violent or sexually explicit lyrics contained in certain albums. After countless testimony and debate, the RIAA (Record Industry Association of America) put together a uniform label that satisfied the PMRC. The label is the one we see today that reads “Parental Guidance: Explicit Lyrics.”

There were other forms of censorship that existed. The Ed Sullivan Show was a forum where the host, Ed Sullivan of course, would only put on the acts that he thought were appropriate for his show. He eventually gave in to the likes of the Beatles and Elvis Presley (who after a few appearances, had to be shot from the waist up so it wouldn’t offend his usual audience and allowed the teenage viewers who tuned in to use their imagination when it came to the actions of Mr. Presley’s hips). There were also issues with the songs going on during the Vietnam War and the New York Times was also a forum for censorship because it associated hip-hop with negative influences involving violence and crime.

Another way artists were censored was not by having their songs taken off the air, but through concert boycotts and other methods to put pressure on them economically. Certain stores such as Wal-Mart and K-Mart decided to not stock certain albums with questionable lyrics and content. The FBI tracked popular rap group N.W.A. and even went to such extremes to ensure that there would be no concert security at their shows, thus making it difficult to obtain insurance for their shows.

The biggest issues erupted with Ice-T and his album, Body Count, which he collaborated on with his heavy metal band of the same name. The real controversy came from the widely known song “Cop Killer.” The song’s lyrics and hard core theme threatened and offended many outside of the music world. Mainly police officers, officials or other figures apart of some authority post. Politicians got involved as well.

Cop Killer was not the first song to come out against law enforcement, and it certainly wasn’t the last. Coming out around the time of the Rodney King beating, the song was about the injustice dealt by police brutality. The song really caught headlines during the election year of 1992, when many came out to express their disgust with the album and Cop Killer. The people that complained included police unions, NRA followers, and various politicians including former Texas Governor and current U.S. President George W. Bush and Dan Quayle, who was the Vice-President at the time.

The heat on Ice-T was worse then anyone could imagine. Like his N.W.A. days, the FBI kept track of where he was, the IRS audited him and his kids were pulled out of school to be interrogated by federal agents. Time Warner had just as much going against them as they received numerous letters from Congressman, bomb and death threats to one of their subsidiary companies and a tough decision on how to respond to the issue. Surprising most, Time Warner spoke out in defense of Ice-T and his constitutional right to produce the song.

After long debate, Ice-T decided to pull the song off the album. Body Count was taken off the shelves and restocked without Cop Killer on the album. So due to all the controversy that followed the song until it was ultimately pulled off the album, its saga ends as the only song in American history to be banned. So, if you had ideas of checking the song out after putting this paper down, your local Mom-and-Pop store won’t have it in stock.

One last interesting to think about before concluding the discussion on censorship. Many of the examples above are, in some ways, considered to be censorship. Not included, however, were the numerous boycotts that were established outside of concerts and record stores that did not put any economic pressure on the artists. Peter Blecha, author of Taboo Tunes, has a great thought here about boycotts and protests, saying they are “not censorship. It is citizenship in action.” These are your rights and it makes the country that much more beautiful when you exercise your freedoms.

VI: Conclusion

Now that the building blocks have been set up, we come to see that things are not nearly as bad in the entertainment world as they once were. One clear piece of evidence of that is that the Batman Returns was protested during its release in 1992, which is laughable compared to some of the films that have seen the big screen since.

But in all seriousness, censorship, in some way, still exists during the 21st Century. The most evident occurred after the tragic events that took place on September, 11th. The country was so shaken up after this event, that radio stations tried their best to keep the memory of the terrorist attacks out of the people’s mind by keeping certain songs off the air.

Other things to keep note of is the public protest and eventual blacklisting of the popular country singing group, the Dixie Chicks, who objected to the war in Iraq and even came out against President Bush saying they were “embarrassed” that he was from Texas. Lastly, Eminem has had his fair share with the censorship controversy. His lyrics were questioned when a teenager killed after apparently listening to one of Eminem’s songs, eerily familiar of the Davidson V. Time Warner case. He also has become fed up with the FCC and has decided to follow Howard Stern’s steps and pursue his own radio station via Satellite radio to avoid the airwave regulations of the FCC.

In conclusion, as I stated at the beginning of this story, we have seen through history how various things develop our culture and our society. Unfortunately, many people were offended throughout the history of our music’s development. But, as rapper Chuck D said back in the late 80's and early 90's, “rap is the CNN of Black America,” meaning that its through our music that we learn about things we don’t understand. Gangsta rap was not a means of encouraging violence. It was like this paper . . . a different way to teach history and a different way to tell a story.