Judge's Opinion In 2 Live Crew Case

On June 6, Jose A. Gonzalez ruled that ``As Nasty As They Wanna Be,'' a rap-music album by the group 2 Live Crew, is obscene, at least in Broward County, Fla. Under the ruling, the recording is outside the bounds of expression protected by the First Amendment.

Judge Gonzalez's decision stems from litigation initiated by Luther Campbell, 2 Live Crew leader and president of Skyywalker Records, which distributes the group's music. Campbell challenged actions taken against ``Nasty'' by law-enforcement authorities in Broward County. Specifically, he sought (1) a declaration that ``Nasty'' is not legally obscene and (2) a ruling that the Broward County sheriff's office violated his constitutional rights by warning record store owners to refrain from selling ``Nasty'' or else face arrest for violating the state's obscenity laws - warnings that prompted most retailers to remove the album from their shelves.

Although Gonzalez held that the sheriff's office acted unconstitutionally in the manner in which it warned store owners, he rebuffed Campbell on the central issue of the case - the question of obscenity.

Following is a condensed version of his opinion:

This is a case between two ancient enemies: Anything Goes and Enough Already.

Justice Oliver Wendell Holmes, Jr. observed that the First Amendment is not absolute and that it does not permit one to yell ``Fire'' in a crowded theater. Today, this court decides whether the First Amendment absolutely permits one to yell another ``F'' word anywhere in the community when combined with graphic sexual descriptions.

Obscenity and the

First Amendment

The First Amendment to the United States Constitution provides that ``Congress shall make no law . . . abridging the freedom of speech.''

The First Amendment is one of our most sacred liberties since freedom of thought and speech are the key to the preservation of all other rights. Free speech plays a critical role in furthering self-government, in encouraging individual self-realization, and fostering society's search for truth via exposure to a ``marketplace of ideas.''

Obscene speech has no protection under the First Amendment. The rationale is simple: The message conveyed by obscene speech is of such slight social value that it is always outweighed by the compelling interests of society, as manifested in the laws enacted by its elected representatives. Sex has been called ``a great and mysterious motive force in human life.'' Because of its power, both federal and state governments have chosen to regulate its abuse. The Florida Legislature enacted a statutory scheme (that) criminalizes the distribution, sale, or production of any obscene thing, including a ``recording'' which can be ``transmuted into auditory . . . representations.''

An argument underlying the plaintiffs' position is that the obscenity or non-obscenity of any material should not be a concern of the criminal law, but rather should be left to the free market of ideas. Let each individual member of the public decide whether they wish to buy the material. This is the argument of those absolutists who believe all speech, regardless of its content, is protected by the First Amendment. Such individuals label all regulation of speech as ``censorship'' and ``paternalism.''

The absolutist and other members of the party of Anything Goes should address their petitions to the Florida Legislature, not to this court. If they are sincere let them say what they actually mean - Let's Legalize Obscenity! It is much easier to criticize the law, however, than it is to work to repeal it.

In an era where the law and society are rightfully concerned with the rights of minorities, it should not be overlooked nor forgotten that majorities also have rights.

The Miller v. California test

In deciding whether a specific work is or is not obscene, the court must apply the controlling test enunciated (by the Supreme Court) in Miller v. California. To be obscene, there must be proof of all three of the following factors: (1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest, (2) measured by contemporary community standards, the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (3) the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

The relevant community

This court finds that in assessing whether this work is obscene, the relevant community is the area of Palm Beach, Broward, and Dade counties. This area is remarkable for its diversity. The three counties are a mecca for both the very young and the very old. Generally, the counties are heterogeneous in terms of religion, class, race, and gender.

The average-person

standard

The next inquiry is more difficult because this court must determine what are the standards for determining prurient interest and patent offensiveness in Palm Beach, Dade, and Broward counties.

This court finds that the relevant community standard reflects a more tolerant view of obscene speech than would other communities within the state. This finding of fact is based upon this court's personal knowledge of the community. The undersigned judge has resided in Broward County since 1958. As a practicing attorney, state prosecutor, state circuit judge, and currently, a federal district judge, the undersigned has traveled and worked in Dade, Broward, and Palm Beach. As a member of the community, he has personal knowledge of this area's demographics, culture, economics, and politics.

The Miller test:

prurient interest

This court finds, as a matter of fact, that the recording ``As Nasty As They Wanna Be'' appeals to the prurient interest. The Supreme Court has defined prurient as ``material having a tendency to excite lustful thoughts.'' Appeals only to ``normal, healthy sexual desires'' are not adequate to meet the test. The material must exhibit a ``shameful or morbid interest in nudity, sex, or excretion.''

``Nasty'' appeals to the prurient interest for several reasons. First, its lyrics and the titles of its songs are replete with references to female and male genitalia, human sexual excretion, oral-anal contact, fellatio, group sex, specific sexual positions, sado-masochism, the turgid state of the male sexual organ, masturbation, cunnilingus, sexual intercourse, and the sounds of moaning.

Furthermore, the frequency and graphic description of the sexual lyrics evinces a clear intention to lure hearers into this activity. The depictions of ultimate sexual acts are so vivid that they are hard to distinguish from seeing the same conduct described in the words of a book, or in pictures in periodicals or films.

The evident goal of this particular recording is to reproduce the sexual act through musical lyrics. It is an appeal directed to ``dirty'' thoughts and the loins not to the intellect and the mind.

The second Miller test:

patently offensive

The court also finds that the second element of the Miller test is satisfied in that the ``Nasty'' recording is patently offensive. The recording depicts sexual conduct in graphic detail. The specificity of the descriptions makes the audio message analogous to a camera with a zoom lens, focusing on the sights and sounds of various ultimate sex acts.

First, the ``Nasty'' lyrics contain what are commonly known as ``dirty words'' and depictions of female abuse and violence. Secondly, the material here is music which can certainly be more intrusive to the unwilling listener than other forms of communication. A person lying on a public beach, sitting in a public park, walking down the street, or sitting in his automobile waiting for the light to change is, in a sense, a captive audience.

The third Miller test:

social value

The final factor under Miller is whether the ``Nasty'' recording, taken as a whole, lacks serious literary, artistic, political, or scientific value. This factor is not measured by community standards. The proper inquiry is whether a reasonable person would find serious social value in the material at issue.

As a preliminary matter, it is again important to note what this case is not about. Neither the ``Rap'' or ``Hip-Hop'' musical genres is on trial. This court must examine the ``Nasty'' recording for its content; the inquiry is objective, not ad hominem.

The plaintiffs themselves testified that neither their music nor their lyrics was created to convey a political message. . . . While it is doubtless true that ``Nasty'' is a product of the group's background, including their heritage as black Americans, this fact does not convert whatever they say, or sing, into political speech.

Initially, it would appear very difficult to find a musical work obscene. As noted by the American Civil Liberties Union, the meaning of music is subjective and subject only to the limits of the listener's imagination. Music nevertheless is not exempt from a state's obscenity statutes. Musical works are obscene if they meet the Miller test. Certainly it would be possible to compose an obscene oratorio or opera and it has probably been done.

Obscenity? Yes!

Reprinted from an excerpt that appeared in Reconstruction magazine.