Discouraging "objectionable" music content: litigation, legislation, economic pressure, and more speech.

A high school in

Wales

, Wisconsin, now requires its students to show identification to read Rolling Stone magazine in the school library. An eighteen-year-old student is suspended after wearing a T-shirt representing the band "Korn." Police in Louisiana close down a roller-skating rink and confiscate more than sixty compact discs (CDs) after a fight breaks out in the rink's parking lot. The confiscated discs included Britney Spears, Christina Aguilera, and the infamous "Chicken Dance." (1) Across the Atlantic in England, British Culture Minister Kim Howells blames rap and "garage music" for "glorifying gun culture and violence," he says that this "gun culture" led to the shooting deaths of two teenaged girls from Birmingham in January 2003. (2)

Whether it is in the

United States

or further afield, during the last two decades there has been growing concern about the effects of rock or rap music lyrics upon young people. Many city and state officials are proposing new legislation to ban or restrict offensive lyrics in music. Could such "harmful to minors" laws be enacted, putting offensive music in the same category as tobacco products and criminalizing merchants who sell certain CDs to minors?

A few state governments have drafted legislation that would in fact require divestiture of stocks held in the state pension plans if they are the stocks of corporations that distribute and sell "offensive" music. Which artists will be identified as "offensive?" How will corporations respond to losing profits? A specific focus of this article is the issue of whether such a bill based on content of speech even is constitutional. State legislators who have introduced such bills requiring divestiture generally have charged that the music lyrics are obscene. This analysis, therefore, begins with a brief consideration of obscenity law.

DEFINITION OF OBSCENITY

Originating from the Latin word, obscaenus, meaning "ill-omened or repulsive," (3) the term obscene represents one of the broadest (and murkiest) areas of the

U.S.

legal system. Accurately defining the word remains a socially impossible task due to each individual's variable realm of tolerance. In Miller v. California the Supreme Court tacitly acknowledged that, although one might have a normal and health interest in sexuality, "obscenity" involves "the conduct of a person engaged in the commercial exploitation of the morbid and shameful craving for materials with prurient effect."

The basic guidelines for the trier of fact must be: (a) whether the average person, applying contemporary standards, would find that the work, taken as a whole, appeals to the prurient interest ... (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law, and (c) whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.... (5)

The courts struggle through cases that deal with obscenity because the lines between obscenity and indecency are vague, and indecency receives a minimal degree of First Amendment protection. As stated in Title 18 of the U.S. Crimes and Criminal Procedure Code, however, obscenity is not protected by the First Amendment and lack of a specifically defined standard for obscenity is not a constitutional bar to prosecution under 18 U.S.C.S. [section] 1465. (6)

To add to the confusion, courts must take into account society's evolving standards of decency. What incited criticism of music fifty years ago might barely raise an eyebrow by today's contemporary standards, the most popular example being Elvis Presley's appearances on The Ed Sullivan Show. Many adults proclaimed Elvis' trademark gyrating hips to be obscene. They feared that witnessing Elvis's pelvic gyrations would instill promiscuity and loose morals upon their teenage sons and daughters. As a result, when Elvis appeared on the show, the network televised him only from the waist up to avoid a negative reaction. Ironically enough, by today's standards many would find nothing wrong with Elvis' gyrations, and to conunemorate our national support for the rock-and-roll star, his image is printed on a postage stamp.

But a half-century later, musicians, their lyrics, and their on-stage behavior have pushed the envelope of decency, no doubt by the standards of any society. Rapper Marshall Mathers, who calls himself Eminem, dominates the music scene with his controversial lyrics, which are "vulgar, degenerate, homophobic, and [my]sogynistic." (7) It is unlikely that Eminem's face will appear on a postage stamp any time soon, in view of the rap titled "Kill You" on The Marshall Mathers LP Album, in which he fantasizes about raping his mother. (8) But his more recent attempt to write lyrics expressing angst about being a good father in "Hailie's Song," (9) for example, appears to be inching toward some form of moderate acceptability.

Although rappers occasionally have been charged with obscenity, as in the 1990 2 Live Crew case, (10) rappers and rock musicians may write the most graphically violent lyrics anyone can imagine. The reason for this is that violent speech, as a form of "pure" or "core (11) speech," enjoys maximum First Amendment protection and consequently it cannot be censored.

FCC ACTION AGAINST RADIO STATIONS THAT BROADCAST SONGS WITH "OBSCENE" LYRICS

Although rappers and rock musicians may record graphically violent songs, the FCC occasionally takes action against radio stations that broadcast these songs. For example, the FCC fined the State University of New York (SUNY) at Cortland's radio station WSUC (FM) for broadcasting a mysogynistic but unidentified rap song (12); WLLD (FM) in Holmes Beach, Florida for its broadcast of "The Last Damn Show" (13); the and Colorado Springs station KKMG (FM) for broadcasting an edited version of Eminem's "The Real Slim Shady" (14) which the FCC held to be indecent because KKMG had not muted or overdubbed enough of the explicitly sexual references. (15)

LEGAL TESTS DETERMINING CRITERIA FOR RESTRICTING COMMERCIAL OR OBSCENE SPEECH

There are two legal tests that courts have created to provide guidelines regarding situations in which the government may restrict speech. The first test, as outlined in Central Hudson Gas and Electric v. Public Service Commission, (16) specifically states that commercial speech obtains a lesser degree of First Amendment protection than "pure" or "core" speech. The First Amendment's protection of commercial speech rests upon the information function of advertising. Of course, the Federal Trade Commission outlaws deceptive advertising and speech related to illegal activity. With regard to music, this test only is relevant when issues of marketing CDs are raised.

But if Central Hudson is applied to the content of music lyrics rather than merely to the advertising of CDs, it provides a series of steps to determine if the government's restriction on speech is constitutional. For example, courts must determine whether the restriction on speech is content neutral or content based, and whether the government has a compelling interest in restricting the controversial speech.

The distinction between content-neutral and content-based restrictions is that the former does not differentiate among the specific ideas expressed, whereas the latter discriminates among them. Content-neutral restrictions "limit expression without regard to the content or communicative impact of the message conveyed." (17) In contrast, a content-based restriction would "limit communication because of the message it conveys." (18) With a content-based restriction, the court applies a stricter standard of review than in content-neutral restriction. Content-based restrictions usually are prohibited by the First Amendment with the understanding that to allow for such a restriction would reduce the rights of free expression and result in impedance upon the "marketplace of ideas," a valuable element of our democracy.

To determine if a content-based restriction is justifiable, the court examines where the restricted speech falls upon the scale of First Amendment values. If the speech is of low value, such as indecency or pornography, the court may recognize the justification for the restriction. Speech awarded high-level First Amendment protection, however, becomes absolute in the eyes of the court and, as such, any motions to restrict such speech frequently are declared unconstitutional.

The second test often used to determine whether the government may restrict speech has evolved from the 1969 case Brandenburg v. Ohio. The case involved a Ku Klux Klan leader convicted for advocating violence and criminal syndicalism. On appeal, the Supreme Court unanimously overruled the conviction:

It was held that the constitutional guaranties of free speech and free press did not permit a state to forbid or proscribe advocacy of the use of force or of law violation, except where such advocacy is (a) directed to inciting or producing imminent lawless action, and (b) was likely to incite or produce such action. (19)

Since then, courts are more like to apply the Brandenburg test for incitement when plaintiffs allege that violent speech in various media, including rock and rap music, has instigated violent behavior in real life.

In every case in which plaintiffs have charged that a musician's lyrics incited violent behavior in real life, however, the defendant musicians have prevailed. (20) In McCollum v. CBS Records, Inc. the court explained that

merely because art may evoke a mood of depression as it figuratively depicts the darker side of human nature does not mean that it constitutes a direct "incitement to imminent violence." The lyrics sung by Ozzie Osbourne may well express a philosophical view that suicide is an acceptable alternative to a life that has become unendurable--an idea which, however unorthodox, has a long intellectual tradition. (21)

Several years later the court in Davidson held that:

[t]he constitutional protection accorded to the freedom of speech and of the press is not based on the naive belief that speech can do no harm, but on the confidence that the benefits society reaps from the free flow and exchange of ideas outweigh the costs society endures by receiving reprehensible or dangerous ideas. (22)

Therefore, no state or federal body of law ever has censored violent or offensive content for fear of trampling upon the First Amendment. Private corporations and the recording industry itself, however, have chosen to adopt practices of self-censorship. Although municipal and state governments cannot issue restraining orders against printing or distribution of CDs containing offensive lyrics, various state and local governments have attempted to restrict minors' access to such CDs.

The precedent for restricting minors' access to adult sexual content occurred in Ginsberg v. State of New York, in which a stationery store worker was convicted of violating a specific New York penal statute after he sold "girlie" magazines to two sixteen-year-old males. The statute prohibited the selling of material depicting nudity to persons less than seventeen years of age. (23) The court upheld the government's authority to restrict minors' access to certain materials, specifically materials pertaining to sex.

The Ginsberg decision leaves us with the question of how such laws would be applied to music, and at what level of government it could be enforced. "Harmful to minors" proposals currently stand no chance in our judicial system.

First, the Recording Industry Association of America's (RIAA) lack of a distinctive and efficient ratings system for music lyrics creates a host of complications for state legislators pursuing "harmful to minors" resolutions. The rating system used by the RIAA began in 1985 after the Parents' Music Resource Center (PMRC) persuaded the Senate Commerce Committee that music lyric ratings were necessary. As a result, the RIAA created the black-and-white label that says, "Parental Advisory: Explicit Lyrics." The label is strictly an advisory and has no legal bearing on the record company or artist.

Second, the RIAA label fails to distinguish among various forms of explicit content. In most cases, the accurate coding of song lyrics would prove to be a difficult if not insurmountable task. Furthermore, although the PMRC had requested mandatory printing of lyric sheets, it learned that in some cases this would constitute copyright infringement.

The warning label also lacks age specificity. The Federal Trade Commission (FTC) has proposed that the recording industry should adopt a rating system similar to those of the Motion Picture Association of America (MPAA) and electronic game industry. The FTC proposed that the recording industry should make its parental advisory label more age specific. This would make it more practicable for the FTC to determine how frequently retailers are marketing explicit-content recordings to children. (24) Recording companies have refused to set a specific age, however, because the warning label represents only a voluntary measure. As Hillary Rosen explained, "Our label is an advisory logo about explicit lyrics. It makes no judgments--nor do we think such judgments are warranted or possible--about what is appropriate for any specific age group." (25)

The RIAA represents more than 90% of legitimate sound recordings produced and distributed in the

United States

. Furthermore, the RIAA has made a concerted effort to raise public awareness about any music that may be controversial. "By the measure that matters most--what parents say--the [Parental Advisory labeling] program is a success. According to the FTC report, 77% of parents are aware of the Parental Advisory warning label, and 75% of them approve of it." (26) Ever since the FTC published its initial report Marketing Media Violence to Children in 2000, the RIAA has broadened the Parental Advisory Program by applying uniformity to the Parental Advisory logo. The recording industry also has tried to increase consumer awareness of the logo via consumer print advertisements and the Internet. (27) In its third follow-up report, the FTC expressed approval for the progress the music recording industry has made; however, the FTC still criticized the RIAA for not adopting an age-based system for the advisory label. (28)

Because both citizen activists and the FTC have called for a rating system that conveys more information to parents, it is worth briefly examining the practices the industry would have to adopt. First, the RIAA would need to differentiate the degrees of severity of lyrics deemed violent. Such a task would conjure up the same "void-for-vagueness" problem that the Supreme Court grapples with when deciding obscenity law.

The next step would be to determine the age-appropriateness of such differentiated content. Certainly some songs that may be suitable for a seventeen year old may not be appropriate for a twelve year old. To review and accurately label every album produced is not logistically possible. "Given the vast number of songs released each year (roughly 60,000), compared with the number of films (approximately 600), appointing a ratings board to review and rate each and every recording would be a nearly impossible task." (29)

The problem with any labeling or ratings system is that once it exists, its very existence can encourage proposals for methods of enforcement that have teeth. Activists may seek to codify a labeling or ratings system. If codified, further attempts could be made to impose punitive measures upon anyone who "violates" the code. For example, if a retailer sells a CD with the label "Parental Advisory: Explicit Lyrics" to a ten year old, some state legislatures could pass laws requiring criminal penalties for that retailer (although this may seem far-fetched, record retailer Charles Freeman was in fact thrown in jail for selling a 2 Live Crew CD, as is discussed below).

Regardless of the guidelines of the present rating system, citizens' pressure groups are still striving for stricter regulation of offensive music content. A few of these groups have caught the attention of local legislators in various states. State legislators generally realize that infringing upon First Amendment rights is impermissible. But social activists force the issue of offensive lyrics onto political agendas, even though these same legislators know that any attempt to curtail music lyrics that are protected by the First Amendment will be unsuccessful.

Nonetheless, the First Amendment appropriately limits what the government can do.... What becomes clear as we continue with our series of reports is that if the public wants a change in these marketing practices, the public must demand that change and express its wishes in the currency of the marketplace. (30)

Throughout the past twenty years, various legislative bills concerning music content have been proposed in various states legislatures. Under the umbrella of the "harmful to minors" designation, this legislation attempts to restrict access to "explicit" or "objectionable" material.

Some proposals would impose stiff financial penalties and even jail time for a merchant or sales clerk who sells a labeled recording to a minor. In some states the minor ... could be fined for attempting to purchase these recordings. These proposals turn the voluntary labeling program into the criteria for convicting someone of a crime, and that is clearly unconstitutional. The RIAA ... has recently engaged in fighting these "sales to minors" proposals in Florida, New York, Michigan,

Georgia

, Tennessee, and Wisconsin. (31)

Although few of these legislative efforts have succeeded, many proposals still are pending. (32)

The RIAA does not object to retailers using the labels as a means of restricting sales to people younger than eighteen years old. Hilary Rosen, President and CEO of RIAA, observes: "The fact is, there's some music that isn't right for kids, and parents [ought] to know it. But stopping the music will not stop the violence in our streets ... or guns in schools." (33) Furthermore, it is the right of all retailers to decide what products are stocked on their shelves. There is cause for concern, however, when a state or local governing body attempts to force private retailers to enact restrictive measures or suffer criminal penalties if they do not. By criminalizing the sale of music to minors, the state, in effect, is attempting to bestow the power of law upon a voluntary labeling system, especially if the voluntary labeling system is used as a means to convict retailers of a crime.

In 1992 the state of Washington passed the "erotic music" law, requiring "obscene" recordings to be labeled "adults only." (34) The penalty for not enforcing the requirement could have resulted in a $500 fine and six months' imprisonment for a first offense. Subsequent offenses brought fines up to $5000 and one year of imprisonment. Eventually the law was overruled for its inefficiency in providing record retailers with the necessary information needed to identify "obscene" records. The judge also viewed the law as creating a chilling effect on speech. (35) Legislators in states such as

Georgia

and Tennessee also issued proposals that, if passed, would make it a misdemeanor to sell a music album that bears the parental advisory label. Both the

Georgia

and Tennessee bills were defeated, however. (36)

In 1991, record retailer Charles Freeman was in fact convicted on obscenity charges for selling 2 Live Crew's CD As Nasty as They Wanna Be (37) two days after Judge Jose Gonzalez declared As Nasty as They Wanna Be to be obscene. (38) Freeman was sentenced to probation and ordered to pay $1000 to the Walker Elementary Magnet School of Performing Arts. A jury eventually found that As Nasty as They Wanna Be was not obscene; however, Charles Freeman still suffered the conviction and punishment for a long time before his sentence was overturned.

CONCERT RATINGS

A second goal of citizen activists involves the creation of a rating system to forewarn parents about explicit lyrics or behavior at rock or rap concerts. Such a rating system would restrict minors' access to rock concerts. Most proposals along these lines call for warning labels on concert tickets. The RIAA strongly opposes such legislation, and explains that it is opposed to all proposals that would permit local governments to rate music concerts and label tickets in advance of the performance "with the goal of regulating the access of minors to concerts, and in some cases even preventing certain concerts from being held." (39)

The RIAA and a coalition of supporters continue to fight this pending legislation. In recent years, they successfully defeated a bill in the state of Michigan that, if passed, would have provided local city council members the opportunity to label concerts and live performances. (40) This bill, like other "harmful to minor" proposals, was redundant because the state of Michigan already had a law banning obscene acts on stage. (41) The proposed law also was vague in determining how such extensive review and decision processes would be applied fairly. For example, would the council have to establish a new committee for the purpose of reviewing all music of each artist that intends to perform in the state? Again, such an idea seems to be a logistic impossibility. Ted Nugent, a rock singer-guitarist and national officer of the Drug Abuse Resistance Education law enforcement program, joined the coalition speaking in opposition to the bill.

No, this bill is a loser. Let's label it harmful to Michigan and instead put the money into teaching our kids how to be good judges of music themselves, and how to listen to all media messages with a critical ear. We don't need any Big Brothers deciding what's art and what isn't. (42)

Lobbying for warning labels on concert tickets and the enforcement of restrictive sale measures are two of the most prominent efforts made by activists. In all cases, the bills that actually passed later were ruled unconstitutional, usually on First Amendment grounds.