Discouraging "Objectionable" Music Content: Litigation, Legislation, Economic Pressure, and More Speech
DiLeonardo, Tracey, Dee, Juliet, Communications and the Law
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." (4) The Supreme Court in Miller v. California further defined obscene as:
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. …