Part I – Summary of Issue
The issue that’ll be covered in this article is the 2 Live Crew obscenity case from 1990. The basic premise of the case is as follows: 2 Live Crew released an album called As Nasty As They Wanna Be (1989) that was declared obscene even though the album was released with an “Explicit Lyrics” advisory sticker and had an accompanying clean version of the album titled As Clean As They Wanna Be (Clean). Nasty As They Wanna Be was nonetheless investigated and brought to the Florida District Court by the Broward County (Florida) Sherriff’s Office in 1990.
The case eventually made its way through the American Judiciary System, generating a ton of media coverage due to the critical precedent that it would set for the music industry and First Amendment freedoms. Initially, the District Court ruled the album obscene and said prior restraint was constituted. However, the 11th Circuit Court of Appeals reversed the ruling based on the fact that the album had artistic value and therefore was not obscene. The Supreme Court agreed with the Appeal Court’s opinion following the obscenity ruling, due to the inherent artistic value of the album. This case was labeled Skyywalker Records, Inc. v. Navarro, 739 F. Supp. 578 (S.D. Fla. 1990). In the following doctrine and evaluation, I’ll be focusing on the District Court’s case and reasoning for initially labeling Nasty as obscene.
Part II – Legal Questions Raised & Applicable Rule
The legal question raised in this case is Obscenity. The applicable rule is the Miller Test, a 3-part absolute test that evaluates whether something is obscene or not. This test is based on Miller v. California, a vital precedent case that is always used in obscenity trials. In the trial, Miller was accused of sending unsolicited pornographic photographs to random people. These photographs were ruled obscene and set a precedent for prior restraint and the selective protection of the First Amendment. This trial birthed the Miller Test.
Part III – Applying the Relevant Doctrine / Precedent
In Skyywalker v Navarro the legal precedent and test relied upon was Miller. The Miller Test is a 3-part absolute test that evaluates whether or not a material is obscene and if prior restraint is warranted. The Miller Test is as follows:
“(1) the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to prurient interests;
(2) 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” (SLAPS test).”
“A work must meet every part of the test to be obscene. That is, the government must show a work, considered in its entirety,
(1) arouses sexual lust,
(2) is hard-core pornography, and
(3) has no serious social value.
If the government cannot prove any part of this test, the work is not obscene, and the First Amendment protects it.” (Ross, S. D., Reynolds, A., & Trager, R. (n.d.). The Law of Journalism and Mass Communication. Seventh Edition)
(1): The community in question here is Broward County, Florida, the average person in question here is a resident of the Broward County community (explicitly not focused on the views of the most prude individuals), and prurient interests are defined as “material having a tendency to excite lustful thoughts.” (Roth). The District Court ruled that Nasty appeals to a shameful and morbid interest in sex, despite Nasty’s defense team claiming that the record did not actually physically excite anyone who heard it and indeed, “caused boredom after repeated play” (law.justicia). The Court applied the Florida Statue section 847.011 which defines sexual conduct to include “actual or simulated sexual intercourse, deviate sexual intercourse, […] masturbation […]” (law.justica). The District Court concluded that these clear statute definitions cover most, if not all, of the sexual acts described in Nasty.
(2): It’s worth noting that this factor is typically not given as much weight as the first or third factors, but is still worth consideration. The Court ruled that Nasty demonstrates sexual conduct in graphic detail with sexual lyrics frequently occurring on every song except for “Break It On Down”. The scope of the content in Nasty does demonstrate patently offensive sexual misconduct as defined by the applicable law as the previously cited Florida statute states. Sexual acts on this record include “dirty words”, depictions of lewd sexual acts, depictions of female abuse and violence, and fighting words used with sexually explicit descriptions.
(3): The final factor under the Miller test, and clearly one of the most important, is the consideration of social value sometimes referred to as the SLAPS test. The primary witness at the trial for this part of the test was Professor Calton Long, who is a qualified expert (PhD) on the culture of Black Americans. He testified that this record was inherently political and had literary merit because 2 Live Crew, as a group of Black Americans, used this medium to express themselves; he argued that this record is a product of the group’s background. He also cited instances in the album that were objectively political, such as the four-sentence phrase on the song “Dirty Nursery Rhymes”
“Abraham Lincoln was a good old man
He hopped out the window with his dick in his hand
He said ‘excuse me lady, I'm doing my duty
So pull down your pants and give me some booty’”
about Abraham Lincoln, among other historically and literarily relevant lyrics and phrases. Dr. Long also noted several examples of literary devices throughout the record such as frequent rhyme, alliteration, and allusion. The defendants also argued that the record has value as comedy and satire.
The District Court stated that Obscenity is not a required element for socially valuable “rap” or “hip-hop” music. 2 Live Crew proved this point itself with the creation of its Clean recording. The Court ultimately disagreed with Dr. Long’s assertion that Nasty has societal value and deemed the record obscene.
Part IV – CONCLUSION
Although the District Court ruled 2 Live Crew’s record as obscene, the 11th Circut Appeal and Supreme Courts overturned this ruling based on the inherent artistic value of the record, which the District Court initially denied. The precedent that the Skyywalker Records Inc. v. Navarro case set has protected countless musicians from being sued for obscenity, especially with increasingly ever-present obscenities across all genres of music. The most recent case that I can think of that was similarly contentious but didn’t have any legal repercussions likely because of the precedent set in Skyywalker, was the release of, “WAP” by Cardi B. and Megan Thee Stallion back in 2020. The obscene and sexual nature of this track may have been questioned before this case, but because of this precedent and the inherent artistic value of the track, there weren’t any legal repercussions surrounding “WAP”. The only real legal issue with “WAP” was that the FCC received “over 1,000 complaints” related to obscenity about the “WAP” performance at the Grammys in 2021, but that’s another case entirely because of the FCC’s strict rules around obscenity and ‘pornography’ on public broadcasts. In summation, the precedent set in Skyywalker was a sweeping, monumental achievement for defending free speech in the United States.
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