c. A. No-.

90-5508

IN THE

1!tuittb ~tnttS QInurt nf Apptals

FOR THE ELEVENTH CIRCUIT

Appellee.

LUKE RECORDS, INC., et al., Appellants,

v.

NICK NAVARRO,

On Appeal from the United States District Court for the Southern District of Elorida

BRIEF OF AMICI CURIAE

RE,CORD'ING INDUS-TRY ASSOCIATION OF AMERIC~ A&M RE:CORDS, ABKCO MUSIC & RECORDS, ALLEGIANCE, RE:CORDS, INC.,

ALSHIRE INTERNATIONAL, INC.,

ANSONIA RECORDS, INC., ARISTI"A RECORDS, INC., ATUANTIC RE:CORDING CORP., ATLANTIC RE:CORDS,

[Continued on Inside Cover]

DAVID E. LEIBOWITZ RECORDING INDUSTRY

ASSOCIATION OF AMERICA 1020 19th Street, N.W. Suite 200

Washington, D.C. 20036 (202) 775-0101

KEVIN T. BAINE VICTORIA L. RADD ELENA KAGAN

WILLIAMS & CONNOLLY 839 17th Street, N. W. Washington, D.C. 20006 (202) 331-5000

Attorneys for Amici Curiae

WILSO~ - EPES PRI~TI~G Co., Ixc. - 789-0096 - WASHI~GTO~, D.C. 20001

BMG MUS,IC, INC., BRIMSTONE, RECORDS,

. CBS, RECORDS INC., CAPITOL-E,MI MUSIC~ INC., CHRYS,ALIS REiCORDS, INC., CLARUS MUSIC, LTD., CURB RECORDS, EAs~-wEsrr· RECORDS, EILEKTRA ENTERTAINMENT, ENIGMA RECORDS, ES3.'ARION LYRICAL PRODUCTIONS, GRP RECORDS, GEF'FEN RE:CORDS, GIANT RECORDS, GLOBAL PACIFIC REiCOU,DS,

HEIART & SOUL PRODUCT'IONS, LTD~, HOLLYWOOD RE;CORDS, INC., IDR-IMAGERY DICK RECORDS, ICE RECORDS, INC., INCAS RECORDS, ISLAND RECORDS, INC., JAMIE RE'CORDS, JOEY RECORHS,

K-TEIL INTERNATIONAL, INC., LEIFRAK-MOELIS RECORDS, LEMASTE' CORP., MCA MUSIC ENTERTAINMENT GROUP, MOTOWN RE'CORD8, NARADA PRODUCTIONS, INC., NEXT PLATEAU RECORDS, PHS RECORDS, PASHA MUSIC ORGANIZATIOoN, POLYGRAM RE'COoRDS, INC., QUEST RECORDS,

R. FRANCIS ENTERTAINMENT, S,BK RECOoRDS GROUP, SHOWT'lME RECOoRDS, SIRE RECORDS COO.,

16TH AVENUE' RE;COoRDS, INC., SLASH RECORDS, SOLAR RECORDS, SOoUND FEELINGS RECORDINGS, SPARROW CORP., TABU PRODUCTIOoNS,

TIP RECORDS, TOMMY BOY RECORDS, VIRGIN R:E,CORDS, WARNER BROS. RECORDS

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ii

STATEMENT OF JURISDICTION 2

STATEMENT OF THE ISSUES .____________________________________ 2

INTEREST OF THE AMICI 2

STATEMENT OF THE CASE 3

A. Proceedings and Dispositions Below__________________ 3

B. Statement of Facts________________________________________________ 4

C. Standard of Review 6

SUMMARY OF THE ARGUMENT 7

ARGUMENT 8

r. The Miller v. California Obscenity Standard______ 10

II. Nasty Does Not Appeal to the Prurient Inter-

est ._______ __ _ _ _ 11

III. Nasty Has Serious Artistic Value 14

CONCLUSION .____________________________________________________________________ 19

Bose Corp. u, Consumers Union of the United

States, Inc., 466 U.S. 485 (1984) . ._. __ ._____ 6

Brockett u. Spokane Arcades, Inc., 472 U.S. 491

(1985) _. . .. ._. .________________________ 11, 12

Erznoznik v. City of Jacksonville, 422 U.S. 205

(1975) . . .. _ .. _. .. .. . __ . ... __ ._. .. _._._.. 14

Federal Communications Comm'n v. Pacifica

Found., 438 U.S. 726 (1978) . . . ._.__ 13

Ginzburg u. United States, 383 U.S. 463 (1966) _.__ 14

Jenkins v. Georgia, 418 U.S. 153 (1974) ._. ._ ... __ 7

Kaplan v. California, 413 U.S. 115 (1972) . __ . .__ 9,10

Kois v. Wisconsin, 408 U.S. 229 (1972) ._ 14

Memoirs v. Massachusetts, 383 U.S. 413 (1966) _._. 12

Miller v. California, 413 U.S. 15 (1973) .passim

New York Times Co. v. Sullivan, 376 U.S. 254

(1964) _ .. ._ ... _ ... . ..... __ ..... _. ._ ... 11

Penthouse Int'l u. McAuliffe, 610 F.2d 1353 (5th

Cir. 1980) 14

Pope v. Illinois, 481 U.S. 497 (1987) 15,16

Roth v. United States, 354 U.S. 476 (1957) .___________ 11 Skyywalker Records, Inc. u. Navarro, 739 F. Supp.

578 (S.D. Fla. 1990) passim

United States v. Bagnell, 679 F.2d 826 (11th Cir.

1982), cert, denied, 460 U.S. 1047 (1983) .__________ 6

United States v. Davis, 353 F.2d 614 (2d Cir.

1965), cert. denied, 384 U.S. 953 (1966) 9

Ward v. Rock Against Racism, 109 S. Ct. 2746

(1989) . .____________________ 20

STATUTES

28 U.S.C. § 1291 ._______________________________________ 2

28 U.S.C. § 1294._. . . __ . :_____ 2

28 U.S.C. § 2201 (a) . __ . .__________________________________________ 3

28 U.S.C. § 2202 (b) 3

42 U.S.C. § 1983 ,___________________________________________________________ 3

Florida Statutes § 847.001.__________________________________________ 3

MISCELLANEOUS

L. BERNSTEIN, THE JOY OF MUSIC (1959) 17

F. SCHAUER, THE LAW OF OBSCENITY (1976) . . 11

ii

TABLE OF AUTHORITIES

CASES

Page

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IN THE

llluittb §tattn QIour! of Apptaln

FOR THE ELEVENTH CIRCUIT

C. A. No. 90-5508

LUKE RECORDS, INC., et al., Appellants,

v.

NICK NAVARRO,

Appellee.

On Appeal from the United States District Court for the Southern District of Florida

BRIEF OF' AMICI CURIAE

RECORDING INDUS.TRY ASSOCIATION 'OF' AMERICA, A&M RE:CORDS, ABKCO MU8IC & RE:CORDS, ALLEGIANCE RE'CORDS, INC.,

ALSHIRE INTERNATIONAL, INC.,

ANSONIA RECORDS, INC'., ARISTA REC'ORDS, INC., ATLANTIC RECORDING CORP., ATLANTIC RECORDS~ BMG MUS.IC, INC., BRIMSTONEi RECORDS,

CBS RE'CORDS INC., CAPITOL-EMI MUS-IG, INC., CHRYSALIS. RECORDS, INC., CLARUS MUSIC, LTD., CURB RECORDS, EAST-WEST RECORDS, ELEKTRA ENTERTAINMENT, ENIGMA RECORDS, ESTARION LYRICAL PRODUCTIONS, GRP RECORDS, GEFFEN RECORDS, GIANT RECORDS, GLOUAL PACIFIC RECORDS,

HEART & SOUL PRODUCTIONS, LTD., HOLLYWOOD RE,CORDS, INC., IUR-IMAGERY DICK RECORDS, ICE: RECORDS, INC.,

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2

INCAS RECORDS, ISLAND RECORDS, INC., JAMIE REC'ORDS, JOEY RECORDS,

K-TEL INTERNATIONAL, INC., LEFRAK-MOELIS RE:CORDS, LEMASTE' C'ORP., MCA MUSIC ENTERTAINMENT GROUP~ MOTOWN RECORDS, NARADA PR'ODUCTI'ONS., INC., NEXT PLATEAU RECORDS, PDS REiC'ORDS, PASHA MUSIC ORGANIZATION, POLYGRAM RECORDS, INC., QUEST RECORDS,

R. FRANCISr ENTERTAINMENT, SUK RECORDS GROUP, SHOWTIME RECORDS, SIRE· RECORDS CO.,

16TH AVENUE: RECORDS, INC., SLASH RECORDS, SOLAR RE:CORDS, SOUND FEELINGS RECORDINGS, SPARROW CORP., TABU PR'ODUCTI'ONS,

TIP RECORDS, TOMMY BOY RE;CORDS, VIRGIN RECORDS, WARNER BROS" RECORD8

8TATEMENT OF JURISDICTION

This Court has jurisdiction over this appeal by virtue of 28 U.S.C. § 1291 and 28 U.S.C. § 1294.

STATEMENT 'OF THE ISSUES

The sole issue presented in this appeal is whether the musical recording As Nasty As They Wanna Be is obscene under the standard set forth by the United States Supreme Court in Miller v. California, 413- U.S. 15 (1973).

INTEREST OF THE AMICI

Amici are the Recording Industry Association of America, Inc. (RIAA), a not-for-profit corporation, and its member companies, which create and produce sound recordings and/or manufacture and distribute phonorecords. The members of the RIAA account for at least 90 percent of the authorized phonorecords produced, manufactured, and sold in the United

3

States, including longplaying records, cassette' tapes, and compact discs. The RIAA and its members submit this brief because of their concern that the decision below, which for the first time holds a popular musical recording to be obscene, will inhibit their freedom and the freedom of their artists to create' musical works of interest to. all segments of the public,

STATEMENT OF THE: GASE

A. Proceedings and Dispositions Below

Appellants brought the original action in the United States District Court for the Southern District of Florida under 42 U.S.C. § 1983, 28 U.S.C. § 2201 (a) and 28 U.S.C. § 2202 (b), seeking declaratory and injunctive relief. Appellants alleged that Sheriff Nicholas Navarro. had deprived them of rights secured by the First and Fourteenth Amendments to. the United States Constitution by attempting to. prevent the distribution of a musical recording made and released by appellants, entitled As Nasty As They Wanna Be ("Nasty").

The Hon. Jose A. Gonzalez, Jr., United States District Judge, held a trial on the merits of the case on May 14 and 15, 1990. The issue at trial was whether the Nasty recording is obscene under the standard articulated in Miller v. California, supra, and incorporated in § 847.001 of the Florida Statutes.'

The District Court, by decision dated June 6, 1990, found by a preponderance of the evidence that Nasty is legally obscene. See Skyywalker Records, Inc. v.

-Florida law criminalizes the possession, distribution, sale, or production of any obscene item, including a "recording." The definition of obscenity contained in § 847.001 tracks the language found in Miller.

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Navarro, 739 F. Supp, 578 (S.D. Fla. 1990). Referring to the definition of obscenity set forth in Miller, the Court held that the Nasty recording, taken as a whole, (1) appeals to the prurient interest; (2) depicts sexual conduct in a patently offensive manner; and (3) lacks serious artistic, literary, political, or scientific value,- Appellants immediately filed a notice of appeal from the District Court's ruling.

B. Statement (Yf Facts

Appellants Luther Campbell, Mark Ross, David Hobbs, and Chris W ongwan are the members of a musical group known as "2 Live Crew," which performs and records rap music. See 739 F. Supp, at 582.13 "Rap" is a kind of dance music notable for its emphasis on relentless, driving rhythms. See Trial Transcript ("Tr.") at 195, 226-27, 235. The rap music genre arose during the last 10 or 15 years, mainly within black urban communities. See id. at 196-97, 224, 229.

In 1989, 2 Live Crew released Nasty, which consists of 18 songs. All of the songs contain lyrics set to driving and powerful rhythms; the lyrics. on some of these songs are sexually explicit. See 739 F. Supp. at 582-83; Tr. at 237-40, 244. At the time of trial

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2 In another portion of the decision, the District Court held that even though Nasty is obscene, certain actions taken by the Sheriff's Office to prevent the distribution of the recording constituted an unconstitutional prior restraint on speech. See 739 F. Supp, at 596-603. No party has appealed this aspect of the District Court's decision.

3 Appellant Luke Records, Inc. is a Florida corporation which produced the Nasty recording under its previous name "Skyywalker Records, Inc." Luther Campbell is the sole shareholder and president of Luke Records, Inc.

5

in this case, sales of Nasty totaled approximately 1. 7 million copies. See 739 F. Supp. at 582. 2 Live Crew also produced and released a recording entitled As Clean as They Wanna Be ("Clean"), whose sales at the time of trial totaled about 250,000 copies, See id. According to' the District Court, Clean contains the same music as Nasty, but unlike Nasty, has no sexually explicit lyrics. See id.

In February 1990, the Broward County Sheriff's Office began an investigation of the Nasty recording. See id. Deputy Sheriff Mark Wichner purchased a CO'Py of Nasty at a Broward County music store and listened to' the recording. See id. at 583. Wichner decided that six of the 18 songs on the recording might qualify as obscene under Florida law and directed that the lyrics of these six songs be transcribed. See Tr. at 46-47, 50-52; 739 F. Supp. at 583. Wichner then prepared an affidavit detailing his activities and requesting that the Broward County Circuit Court find probable cause that Nasty was obscene. See 739 F. Supp. at 583. Wichner submitted this affidavit, along with a CO'Py of the recording and the partial transcript of Nasty's lyrics, to' the duty judge of the Circuit Court, the HO'n. Mel Grossman. See id.

On March 9,1990, Judge Grossman issued an order finding probable cause to' believe that Nasty was O'bscene under F'Iorida law. See id. The Sheriff's Office distributed this order to' retail record stores throughout the county that might be selling the Nasty recording. See id. In addition, employees of the Sheriff's Office personally visited between 15 and 20 stores to warn the proprietors that further sales of Nasty would result in arrest. See id. N ot surprisingly,

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within a matter of days, all retail stores in Broward County ceased offering Nasty for sale. See id:' Appellants responded by bringing the litigation described in Section I above.

c. Standard of Review

The appropriate standard of review in this case is de novo. As this Circuit previously has recognized in reviewing a finding of obscenity,

Miller delineates a constitutional test, ... and its application is not left to the unbridled discretion of the trier of fact. The appellate court is obligated to make an independent review of the material in question and an independent evaluation of the material in light of the Miller criteria.

United States v. Bagnell, 679 F.2d826, 835 (11th Cir. 1982) (emphasis added), cert. denied, 460 U.S. 1047 (1983). This standard of appellate review comports with the principle repeatedly articulated by the Supreme Court that in cases raising First Amendment questions, appellate courts must" 'make an independent examination of the whole record' in order to' make sure that 'the judgment does not constitute a forbidden intrusion on the field of free expression.'" Bose Corp. v. Consumers Union of the United States, Inc., 466 U.S. 485, 499 (1984) (quoting New York Times Co. v. Sullivan, 376 U.S. 254,284-86 (1964»). Such an independent review is required no less in obscenity cases than in any other kind of case raising First

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4 Following the lead of the Broward County Sheriff's Office, and further encouraged by the District Court's ruling in this case, law enforcement officers in numerous other locales-including communities in Texas, Virginia, and South Carolinahave similarly "advised" retailers to limit or cease sales of Nasty.

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Amendment issues. See Jenkins v. Georgia, 418 U.S. 153, 160 (1974); id. at 163 (Brennan, J., concurring) ("After the Court's decision today, there can be no doubt that Miller requires appellate courts ... to review independently the constitutional fact of ob-

. scenity.").

SUMMARY OF THE: ARGUMENT

The decision under review is the first judicial decision ever to declare a popular musical recording obscene. This unprecedented decision, if upheld, would have far-reaching effects; it would invite Florida law enforcement authorities to maintain a criminal prosecution against any person who sells, or even possesses, the rap music recording As Nasty As They Wanna Be. The First and Fourteenth Amendments to the United States Constitution prohibit this result because Nasty, notwithstanding its sexually explicit lyrics, does not meet the three-pronged test of obscenity articulated in Miller.

As an initial matter, the recording, considered as a whole, does not appeal to the prurient interest. As the un rebutted evidence showed, Nasty does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response. To be sure, the lyrics of Nasty contain profanity, VUlgarity, and explicit sexual imagery. But to satisfy the "prurient interest" prong of the Miller test, more is needed, and Nasty, however nasty, does not meet this requirement.

Perhaps more important, the Nasty recording, again considered in its entirety, has serious value. Much of the attention given to this recording has focused on the lyrics, some of which are sexually ex-

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plicit. Even taken by themselves, those lyrics have serious value, according to the unrebutted expert testimony at trial. But Nasty is not a mere collection of lyrics; it is a musical composition, in which rhythm and other musical elements playa principal part. The music on Nasty has serious artistic value, as evidenced by the fact that 250,000 consumers purchased Clean, which contains the music found in Nasty, but not the explicit lyrics. And once the value of 2 Live Crew's music is acknowledged, the Court's ruling collapses, because if the music itself has serious value, and the music is an integral part of the recording, then the recording, taken asa whole, must also have serious value.

This Court should not countenance the District Court's novel and unjustified application of the Miller standard to a musical recording. However offensive a song's lyrics, a song remains a song. And as a musical composition-a form of artistic expressionit cannot properly be deemed obscene under prevailing law,

ARGUMENT

The decision on appeal is no circumscribed ruling; it is a decision of dramatic breadth. The District Court's holding would permit the criminal prosecution of any person who sells, distributes, or even possesses 2 Live Crew's bestselling recording. The decision does not operate solely to protect children. Nor does the decision work merely to' prevent the public airing-on a radio station or in a mall-of a controversial and perhaps unwelcome piece of music. The District Court's ruling means nothing less than that private possession of Nasty by an adult constitutes illegal conduct. And if the distribution and

9

possession of Nasty are criminal acts, then musicians, record companies and consumers alike must wonder whether other, equally explicit recordings carry with them the same' plague of criminality.

The decision of the District Court is, to our knowledge, the first judicial decision to declare a recording of popular music obscene." For the most part, the obscenity label has been affixed only to hard-core depictions of sexual conduct in photographs and moving pictures. As the Supreme Court's cases make clear, only in the most extreme circumstances can words, unaccompanied by illustrations, be regarded as legally obscene. See Kaplan v. California, 413 U.S. 115, 118-19 and n.2 (1973), and cases cited therein. Printed words and speech, as compared to pictures, "have a different and preferred place in our hierarchy of values," and for that reason any classification of words as obscene must be "rigorously scrutinized." [d. at 119, 118 n.2.

In short, sexually explicit words, unaccompanied by illustrations, have not generally been held to satisfy the legal definition of obscenity, and popular music has not even been subject to challenge as obscene in the past. This double failure of precedent reflects a two-fold legal obstacle to any claim, such as the one asserted in this case, that lyrics render a musical work obscene. First, even when set to music,

5 In United States v. Davis, 353 F.2d 614 (2d Cir, 1965), ceri, denied, 384 U.S. 953 (1966), the court upheld an obscenity conviction for the mailing of two "party records." The court's opinion does not indicate that the records were musical recordings and does not discuss the applicability of obscenity standards to musical works. Whatever the "party records" at issue in Davis were, it seems clear that they did not fall into the category of popular music.

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words enjoy the "preferred place in our hierarchy of values" that words always enjoy. Id. at 119. And second, as discussed below, the musical value of the resulting work can save otherwise unprotected words from a judgment of legal obscenity.

I. The Miller v. CaluO'rnia Obscenity Standard

In Miller v. California, supra, the United States Supreme Court articulated a three-part test for determining whether a work is obscene and therefore. outside the scope of First Amendment protection. The Court stated:

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 de-scribes, 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.

413 U.S. at 24 (citations omitted) (quoting Kois v. Wisconsin, 408 U.S. 229, 230 (1972». A work may be held obscene only if it meets all of the three prongs of the Miller test.

As shown below, Nasty does not appeal to the prurient interest. Moreover, Nasty has serious literary, artistic, political, or scientific value. Contrary to the District Court's decision, Nasty therefore can .... not be deemed obscene under the Miller standard. 6

e The District Court found Nasty obscene under a preponderance-of-the-evidence standard, the standard of proof usually applicable in civil cases. See 739 F. Supp. at 582. The Supreme Court has indicated, however, that in civil

II. Nasty noes Not Appeal to the Prurient Interest

The Supreme Court long has emphasized that a work cannot be held obscene merely because it describes or depicts sexual conduct, even in an explicit way. As the Court has explained:

[Sex] and obscenity are not synonymous .... The portrayal of sex, e.g., in art, literature and scientific works, is not itself sufficient reason to deny material that constitutional protection of freedom of speech and press. Sex, a great mysterious force in human life, has indisputably been a subject of absorbing interest to mankind throughout the ages; it is one of the vital problems of human interest and public concern.

Roth v. United States, 354 U.S. 476, 487 (1957).

To be obscene, a work must, as a threshold matter, appeal to the prurient interest; it must, taken as a whole, arouse sexual desire and longing. See id. at 487 n.20; see also F. SCHAUER, THE LAW OF OBSCENITY 98 (1976) (noting that the work must be "sexually stimulating"). Moreover, the desire so aroused must be "shameful" and "morbid" rather than "normal"

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and "healthy.", Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 498-99 (1985). A work appeals to the prurient interest only when it stimulates or provokes "sexual responses over and beyond those that would be characterized as normal." [d. at 498. In vernacular terms, the work, taken as a whole, must "turn on" the audience, and it must do so in a way

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actions implicating First Amendment rights, use of a clearand-convincing-proof standard is constitutionally required. See, e.g., New York Times Co. v. Sullivan, 376 U.S. 254, 285- 86 (1964). For the reasons stated in this brief, Nasty cannot be found obscene under either standard.

12

that the average person in the community would find shameful.

The undisputed evidence at trial, as the District Court's opinion tacitly admits, showed that Nasty does not have this effect: the District Court summarized the trial testimony as showing that "the Nasty recording did not actually physically excite anyone who heard it and indeed, caused boredom after repeated play." 739 F. Supp. at 592; see Tr. at 180. In the face of this evidence, the District Court based its determination that Nasty appeals to the prurient interest on nothing more than what the Court deemed to be the "graphic deluge of sexual lyrics about nudity and sexual conduct." 739 F. Supp. at 592; see id. at 591. But the Supreme Court has made clear that graphic sexual imagery will not support a conclusion that a work appeals to the prurient interest. 7 The evidence must show not simply that a work describes sexual conduct, but that it stimulates morbid and unhealthy sexual responses. See, e.g., Brockett v. Spokane Arcades, Inc., 472 U.S. at 498-99. No evidence adduced by the District Court-indeed, no evidence presented at trial-supports a conclusion of such sexual stimulation. Nor will this Court's inde-

7 Graphic sexual imagery alone may strike the average member of a community as disgusting or otherwise "offensive." This reaction, however, is relevant only to the second prong of the Miller standard, which asks whether the work in question "depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law." 413 U.S. at 24. An offensive description of sexual conduct cannot itself satisfy the first-or prurient Interest-sprong of the Miller test without the two prongs merging into one. Ct. Memoirs v. Massachusetts, 383 U.S. 413, 419 (1966) ("Each of the three federal constitutional criteria is to be applied independently .... ").

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pendent review of Nasty support such a conclusion. Nasty does not stimulate; on the contrary, some have said it numbs. See Tr. at 190.8

Moreover, assuming arguendo that explicit description of sexual conduct itself could satisfy the require .... ment of prurience, the evidence offered at trial showed that only one-third of the songs on the Nasty recording contain such descriptions. Deputy Sheriff Wichner testified that he transcribed only six of the 18 selections on Nasty for presentation to Judge Grossman. See Tr. at 53. When asked how he decided which selections to transcribe, Wichner responded that the songs transcribed were "extremely explicit," and that "[o]ther songs that did not detail anything that might be construed obscene were not included." Id. at 50, 56. Counsel for Sheriff Navarro, summarizing this and other evidence, agreed that various songs on Nasty are unobjectionable. He stated:

I will concede that there are individual selections on this tape that do not meet the Miller standard. Frankly, they don't come close to meeting the standard on some of the selections. Frankly, some of them just have dirty words and they're not in any way suggestive of sexual conduct.

Id. at 150.

8 In this respect, Nasty is comparable to the "seven dirty words" routine at issue in Federal Communications Comm'n v. Pacifica Found., 438 U.S. 726, 757 (1978), which the Supreme Court termed "a kind of verbal shock treatment." The Court, although considering this routine "vulgar," "offensive," and "shocking," took for granted that it was not obscene. [d. at 747.

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These concessions alone, nowhere disputed by the District Court, command a judgment for appellants. In determining whether a work appeals to the prurient interest, the work must be considered "as a whole," Miller v. California, 413 U.S. at 24; isolated portions of a work cannot render the wo-rk obscene. In keeping with this principle, courts consistently have applied the prurient interest prong of the Miller test to books and films in their entirety, and not merely to particular scenes or chapters. See, e.g., Erznoznik v. City of Jacksonville, 422 U.s. 205, 211 n.7 (1975) ("Scenes of nudity in a movie ... must be considered as part of the whole work."). Similarly, although magazines, newspapers, and other periodicals have a number of different and autonomous articles, the Supreme Court and lower courts have applied the "as a whole" test to' demand that most, if not all, of these articles appeal to the prurient interest. See, e.g., Kois v. Wisconsin, 408 U.S. 229, 231 (1972) (per curiam); Ginzburg v. United States, 383 U.S. 463, 466 n.S (1966); Penthouse Int'l v. McAuliffe, 610 F.2d 1353, 1370-71 (5th Cir. 1980). Likewise, individual selections on a recording (here, six selections out of 18 total tracks) do not transform the recording as a whole into a work that appeals to the prurient interest. Even assumingcontrary to the evidence-e-that those six selections appeal to the prurient interest, the work taken "as a whole" does not.

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III. Nasty Has Serious Artistic Value

The third prong of the Miller obscenity test examines whether "the work, taken as a whole, lacks serious literary, artistic, political, or scientific value."

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413 U.S. at 24. The District Court correctly noted that the value of a work is not measured by community standards. See 739 F. Supp. at 593-94. The proper inquiry is whether a reasonable person would find serious value in the work. See Pope v. Illinois, 481 U.S. 497, 501 (1987).9 This inquiry leads inevitably to the conclusion that the Nasty recording is' not obscene.

Nasty is not a collection of lyric sheets, but a set of musical compositions. The purchaser of Nasty does not transcribe and read the recording's lyrics; he plays and dances to the music. See Tr. at 209. The

9 Justice Scalia, concurring in Pope, noted the difficulty of applying a "reasonable person" standard to the inquiry whether a work has serious artistic or other value. 481 U.S. at 504-05. Justice Scalia wrote:

'[Ijn my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value .. " Since ratiocination has little to do with esthetics, the fabled "reasonable man" is of little help in the inquiry . . . . If evenhanded and accurate decisionmaking is not always impossible under such a regime, it is at least impossible in the cases that matter. . . . For the law courts to decide "What is Beauty" is a novelty even by today's standards.

[d. Justice Scalia's concerns resonate in the inconsistent legal treatment recently accorded to 2 Live Crew's music: since the decision in this case, a jury in the same community acquitted 2 Live Crew of obscenity charges arising from a live performance that included the most sexually explicit songs on Nasty. The potential for such apparently inconsistent and arbitrary results should lead courts to eschew overstrict application of the "serious value" standard. If musicians and other artists are not to be left at peril-and if their creative endeavors are not to be deterred-courts must give the benefit of the doubt to the value of their work.

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music, indeed, defines the work. Nasty is characterized as rap music; the members of 2 Live Crew are known as rap musicians. To be sure, each of the tracks on Nasty includes lyrics, but the recording remains a set of musical compositions, characterized primarily by their beat. On Nasty, the lyrics and music inform and complement each other to produce a whole and coherent musical work-a musical work whose principal purpose is to make people dance and tap their feet. See Tr. at 243.10 Indeed, the District Court itself admitted this much, stating that Nasty "is first and foremost[] music." 739 F. Supp. at 595.11

To say that music itself-any kind of music-has no serious value is to say a rather strange thing. Strange partly because, in Justice Scalia's words, "ratiocination has little to do with esthetics," Pope v. Illinois, 481 U.S. at 504, and the attempt to apply objective standards of value to an essentially subjective phenomenon is doomed to fail. But strange also because music-what Leonard Bernstein has called "organized souncl"-has inherent value, perhaps inexplicable in other than musical terms, but nonetheless

10 It can hardly be said of Nasty that the music is the equivalent of "[aJ quotation from Voltaire in the fly-leaf of ... an otherwise obscene publication." Miller u, California, 413 U.S. at 25 n.7 (quoting Kois u. Wisconsin, 408 U.S. at 231). Nasty is dance music.

11 This statement of the District Court stands in stark contrast to the Court's pronouncement, made just two paragraphs later, that the "focus of the Nasty recording is predominately [sic] on the lyrics." 739 F. Supp. at 595. The Court got it right the first time. Nasty is dance music, not poetry; its defining trait is rhythm, not words.

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significant and real. See L. BERNSTEIN, THE JOY OF MUSIC 11 (1959). As Maestro Bernstein wrote:

"M usic, of all the arts, stands in a special region, unlit by any star but its own, and . . . without any meaning . . . except its own, a meaning in musical terms, not in terms of words, which inhabit an altogether different mental climate." Id. at 33. Who can say that any work in this "special region" of creative expression lacks the artistic value which renders a work non-obscene?

But even supposing that music could ever be deemed to lack serious value, that cannot be said of 2 Live Crew's music. The music on Nasty, taken in isolation, has undoubted artistic value. Expert witnesses testified to Nasty's quality as dance music, attributable primarily to its powerful rhythms. Tr. at 208, 238-39, 244, 252. Even counsel for Sheriff Navarro stated that "the musical components can be serious art" and that "it's got a good beat, people can dance to it .... " Id. at 305. Moreover, trial testimony showed that approximately 250,000 people purchased As Clean As They Wanna Be, which includes Nas,(y's music, but omits its explicit lyrics. Evidently those people found something of value other than 2 Live Crew's sexually explicit lyrics. Given this evidence, a reasonable person indeed would find that 2 Live Crew's music has serious musical value,"

12 Counsel for Sheriff Navarro repeatedly argued at trial that the Court need not consider the value of the music on Nasty, because all of the musical elements contained in Nasty originated in other recordings, and 2 Live Crew did nothing more than combine these elements by a process known as "sampling." See Tr. at 153, 300. (Sampling entails the use of digital technology to combine and integrate sounds found on

18

And once the value of the music itself is acknowledged, so too is the value of the whole recording. As shown above, music is an integral part of the recording. In this circumstance, if the music has artistic value, so too does the entire recording; the addition of lyrics, even if obscene in and of themselves," does not strip the composition of its artistry.

other recordings. See Tr. at 195, 225-27, 231-32.) The District Court's opinion appears to accept this argument in part. See 739 F. Supp. at 595-96. The argument, however, is fallacious. First, even assuming that 2 Live Crew incorporated music from other recordings, that music retains its value. The issue here is not whether 2 Live Crew borrowed music; the issue is whether the music 2 Live Crew uses (wherever it originated) has serious value. Second, expert witnesses offered unrebutted evidence that the process of sampling-the process of combining bits and pieces of music to form a new musical work-is itself a technique of musical composition requiring artistic talents and skills. See Tr. at 232.

I

\

:13 Unrebutted expert testimony at trial demonstrated that Nasty's lyrics themselves have political and social scientific value and therefore cannot be labeled obscene. Carlton Long, a Rhodes Scholar and Assistant Professor of Political Science at Columbia University, testified that the lyrics reflect and incorporate numerous traditions of African-American culture. See Tr. at 262. In addition, Professor Long pointed to particular lyrics, such as a line referring to Abraham Lincoln, that make explicit political statements. See id. at 276. The obvious reference in "Dick Almighty" to former President Nixon also falls in that category. Other commentators on Nasty have noted numerous political messages. For example, New York music critic Stanley Crouch has said: "Listen to it. Women are sex slaves. Materialism is God. The idea of cool is street-corner narcissism." Washington Post, June 17, 1990, at Gl. These messages may be divisive and controversial, but that they are messages can hardly be doubted.

19

Amici have argued in Part II of this brief that Nasty's lyrics do not themselves meet the first prong of the Miller obscenity standard. But even if they did, the recording would not be rendered obscene. Nasty is, as the District Court stated, "first and foremost[] music," 739 F. Supp. at 595, and its music-its creative and unique organization of sound -cannot be thought to lack all serious value. The music on Nasty, as an integral-as a necessarycomponent of the recording, precludes any finding of obscenity.

The obscenity test, after all, is not some balancing test that invites the court to weigh the offensiveness of the lyrics against the value of the musical work as a whole. All three elements of the Miller test must be met before a work can be declared legally obscene: it must appeal to the prurient interest, depict or describe sexual conduct in a patently offensive way, and lack serious value. If the work, taken as a whole, has serious artistic or musical value, then it is not obscene, however offensive and otherwise lacking in value the lyrics themselves may be. If for no reason other than this, Nasty is not obscene.

CONCLUSION

Only last year, the Supreme Court condemned the

censorship of music:

Music is one of the oldest forms of human expression. From Plato's discourse in the Republic to the totalitarian state in our own times, rulers have known its capacity to appeal to the intellect and to the emotions, and have censored music compositions to serve the needs of the state. The Constitution prohibits any like attempts in our own legal order.

20

Ward v. Rock Against Racism, 109 S. Ct. 2746, 2753 (1989). Thus, this Nation's history has been notably free of attempts to censor musical expression.

The unprecedented decision of the District Court in this case hangs like a cloud over a brand of music that, while offensive to some, is enjoyed by others. Unless that cloud is removed, all those who perform, distribute or, purchase such music face the daunting threat of criminal prosecution. There is no denying the intimidating effect of that threat. In Broward County and elsewhere, record store owners who respect and fear the law have played it safe, removing Nasty from their shelves. To some who find Nasty offensive, that has been cause for celebration. But to those who prize freedom of expression, it is cause for alarm. Official censorship, however popu1ar, is antithetical to the First Amendment--and no less so when "rap" music is involved. The District Court's judgment should be reversed.

Respectfully submitted,

DAVID E. LEIBOWITZ RECORDING INDUSTRY

ASSOCIATION OF AMERICA 1020 19th Street, N.W. Suite 200

Washington, D.C. 20036 (202) 775-0101

KEVIN T. BAINE VICTORIA L. RADD ELENA KAGAN

WILLIAMS & CONNOLLY 83917thStreet, N.W. Washington, D.C. 20006 (202) 331-5000

Attorneys for Amici Curiae

Dated: December 12, 1990

, .

CERTIFICATE' OF SERVICEI

I hereby certify that on the 12th day of December, 1990, copies of the foregoing brief were mailed, firstclass postage prepaid, to:

Bruce Rogow, Esq.

2441 South West 28th A venue Fort Lauderdale, Florida 33312

John W. Jolly, Jr., Esq.

Shailer, Prudy & Jolly, P.A. 1322 South East 3rd Avenue Fort Lauderdale, Florida 33316

KEVIN T. BAINE