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...confiscate more than sixty compact discs (CDs) after 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. 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...
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