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The FIRST AMENDMENT to the U.S. Constitution:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Controversy has surrounded popular music for decades and there have been efforts to limit or restrict expressions in popular music since the days of Stephen Foster. However, the emergence of rock and roll music in the 1950s was accompanied by far greater controversy than at any time in the past and that controversy has grown greater as expressions in popular music have become increasingly violent, profane, sexual, and political. As it is unlikely that unpopular and controversial expressions in popular music will vanish in the foreseeable future, exploring and examining the tension that exists between the forces that advocate limiting such expressions and those that defend the right to make them is of consequence to us as listeners and citizens.

About Censorship and the Constitutional Protections of the First Amendment

One of the most obvious facts about the Constitutional protections of the First Amendment is that no mention is made of art, music, literature, or any other expression outside of “speech” or “the press.” However, the Constitutional protections accorded to “freedom of speech, or of the press” have been extended to a wide range of expressions beyond those of the Fourth Estate and the spoken word. Expressions in art ”including plays, music, dance, film, literature, poetry and the visual arts” have enjoyed considerable First Amendment protection as the result of legal precedents established in case law and the Supreme Court’s view that many non-verbal expressions may sometimes be considered “speech” for the purpose of receiving First Amendment protections.

However, it is important to draw attention to the fact that the First Amendment only protects citizens against government restrictions of “free speech” and does not apply to the actions of individual citizens or businesses unless they infringe on another’s right to exercise free speech. In other words, the government cannot ban a CD because it is offended by the material or disagrees with the ideas expressed in a song. However, a company like Warner Music may choose not to distribute a CD that it finds offensive and a chain like Wal-Mart can choose not to sell CDs with ”Parental Advisory” labels (which is, in fact, a policy of Wal-Mart). In a recent example, a school superintendent in Benton Harbor, Michigan forbid the McCord Middle School Marching Band from playing “Louie Louie” in a parade and that action was not in violation of the protections of the First Amendment. While the Benton Harbor School District cannot stop someone from playing “Louie Louie,” it is under no obligation to provide a forum for the McCord Middle School Marching Band to exercise its right to play the song.

It is also important to make clear distinctions between terms like censorship, obscenity, indecency, pornography, and others that have specific definitions but are frequently used interchangeably in discussions concerning First Amendment rights.

Censorship is the suppression of ideas, information, and expression that individuals, groups or the government find objectionable or dangerous. The First Amendment protects citizens from government censorship. However, individuals or groups may act as censors as long as their actions do not infringe on an individual’s right to be heard or prevent an individual from exercising his or her right to be heard. Put simply, individuals and groups do not have to provide an individual with a forum, but cannot deprive an individual of their right to be heard.

Obscenity, although frequently brought up in the context of censorship, is a legal term that deals specifically with “speech or material expressions that appeal to prurient interests as judged by contemporary standards; that depict or describe sexual conduct in a patently offensive way; and that, taken as a whole, lack serious literary, artistic, political, or scientific value.” Things that are obscene are illegal and not protected by the First Amendment. However, the courts have been very careful in dealing with obscenity and hesitant to find things obscene in order to uphold the protections of Freedom of Speech. The three-part test described above comes from the Supreme Court’s ruling in Miller vs. California (1973) and makes a clear distinction between things offensive and those that fall within the Court’s definition of what constitutes obscenity.

Offensive refers to anything that anyone disapproves of and causes them displeasure, especially in the sense of what is decent, proper, or moral. Of all the terms typically employed in dealing with the First Amendment, “offensive” is the most problematic. Rather than providing a protection to the public to restrict offensive speech or the expression of offensive beliefs and opinions, the “freedom of speech” provision of the First Amendment exists so that citizens may publicly voice or express beliefs and opinions that others might find offensive without fear of government censorship or restriction.

Pornography is a lay term that has no particular significance in law. In its most fundamental application, pornography refers to materials created with the purpose of sexual arousal. The definition of pornography is highly subjective and, as a consequence, the term has no legal standing in the United States. Put simply, pornographic materials may be regulated on the local or state level, but pornography is legal in the United States unless it meets the test of obscenity, which it almost never does.

Indecency refers to things that do not conform to accepted standards of behavior or morality and are deemed inappropriate. Local and state laws restrict public conduct in terms of “accepted standards of behavior,” but such standards vary widely in the United States. Something that might be found to be “indecent” in Sioux Falls, South Dakota might be perfectly acceptable in San Francisco.

While instances of direct attempts at government censorship of popular music are extremely rare on any level, calls for government intervention have become more common in recent years. However, the established precedents in case law that have focused on the protections of the First Amendment make such calls unlikely to result in legal actions that result in legal censorship. Today, efforts in restricting popular music are more frequently directed at private sector interests.

Some Important Examples Concerning Popular Music And Censorship

Attempts to restrict or regulate the content of music through government intervention have a long history in the United States, although the courts have seldom upheld attempts to censor or legally control expressions in music.

“Louie Louie” 1963-1965
“Louie Louie” was written in 1955 by Richard Berry and released as a single in 1957 by Richard Berry and The Pharaohs on Flip Records. The original version of “Louie, Louie” was a modest hit on the R&B charts, but quickly disappeared and was forgotten except in the Pacific Northwest.

In 1961, Robin Roberts from Tacoma, Washington found a copy of Richard Berry’s original recording in a thrift shop. That year, his band, Rockin’ Robin Roberts and the Wailers, changed the song from a calypso to a rock and roll tune and added the famous line “OK, let’s give it ‘em right now.” Rockin’ Robin Roberts and the Wailers had marginal success with their recording in the Pacific Northwest in the early 1960s.

In 1963, two bands from Portland Oregon, The Kingsmen and Paul Revere and the Raiders, began to include “Louie Louie” in their live shows. In April of 1963, The Kingsmen recorded the song at Northwest Recorders in Portland and a week later Paul Revere and the Raiders also recorded the song in the same studio. The version by The Kingsmen began to sell in the Northwest and also received airplay in Boston. By November it had entered the Billboard Hot 100, stayed in the charts for thirteen weeks, and peaked at Number Two. However, it was destined to become the most controversial song of the 1960s and the most successful party song of all time.

Part of the fascination with The Kingsmen’s version of “Louie Louie” is that it is nearly impossible to understand a word sung by lead singer Jack Ely and many people heard “obscene lyrics” when they listened. Governor Matthew Welch of Indiana ordered the song banned from the airwaves in his state and asked the FBI to investigate the song under the provisions of federal laws governing the Interstate Transportation of Obscene Material. The FBI actually investigated the song for two years. After interviewing Jack Ely (who wasn’t sure what the words were that he sang), The Kingsmen, Richard Berry, and studying the song in their crime labs, the FBI finally reached the determination that the song was “unintelligible at any speed” and, as a consequence, could find no evidence of obscenity.

Since 1963, hundreds of versions of the “true lyrics” to “Louie Louie” have been circulated and recorded by dozens if not hundreds of different bands. However, the original version by Richard Berry is in no way lascivious and neither is the version by The Kingsmen. Due in part to its reputation, “Louie, Louie” has become the second most recorded song in history (only Paul McCartney’s “Yesterday” has been recorded more times). Despite the fact that the original version by Richard Berry and the recording by the Kingsmen contain no lyrics that are or could be interpreted as offensive let alone obscene, the song continues to be plagued by attempts at censorship (as in the example of the McCord Middle School Marching Band incident noted earlier).

Nasty As They Want To Be — 2 Live Crew (1990)
In one of the most famous cases of music censorship, police in Broward County, Florida set up a “sting” operation to arrest retailers selling copies of the album Nasty As They Want To Be by 2 Live Crew under the contention that the album was obscene. Objections to 2 Live Crew started with the success of their hit single “Me So Horny.” Similar prosecutions regarding the sale of 2 Live Crew records were also attempted in Alabama and Tennessee. None of the prosecutions in Florida, Alabama, or Tennessee resulted in standing convictions. Members of 2 Live Crew were also prosecuted for performing the songs from the album in a concert in Broward County, Florida. The concert trial resulted in an acquittal. Although none of these highly publicized obscenity prosecutions resulted in convictions, it is estimated that they quadrupled sales of the album.

Straight Outta Compton — N.W.A.
The lyrics of songs on the album Straight Outta Compton by N.W.A. were considered highly dangerous by law enforcement, especially those of their most notorious song, “Fuck Tha Police.” As a result, an assistant director of the FBI sent a letter to Ruthless Records and its parent company, Priority, advising the record label and the rappers that the FBI took “exception to such action (fucking the police).” The FBI’s letter was published by Priority Records and only served to draw more publicity to the group. Straight Outta Compton eventually went double-platinum and Rolling Stone magazine recently named it the 144th greatest album of all time on their 500 Greatest Albums List.

Art as commerce took on a whole new meaning during the early to mid-1990s when large “family-oriented big box” chain stores, such as Wal-Mart, became the largest distributors of recorded music in the United States. If these large chains would decide that an album’s lyrics or album art were “inappropriate,” and should not be sold in their stores, they could virtually kill an album’s chances of success. Bands like Nirvana, Jane’s Addiction, Beck, White Zombie and others changed album artwork in order to please the large chain stores. In other instances, stores refused to sell albums with lyrics they found to be “offensive” and many artists released two versions of their albums: one with “explicit” lyrics and another with the “offensive”lyrics altered Wal-Mart once banned a Sheryl Crow album because it contained a negative reference to the chain’s gun sales policy.


Offer an informed opinion on ONE of the following questions (pick only one):

1.Professor Irving Kristol of NYU has written, “No society can be utterly indifferent to the ways its citizens publicly entertain themselves. Bearbaiting and cockfighting are prohibited only in part out of compassion for the animals; the main reason is that such spectacles, were felt to debase and brutalize the citizenry who flocked to witness them. The question with regard to pornography and obscenity is whether they will brutalize and debase our citizenry. We are, after all, not dealing with one book or one movie. We are dealing with a general tendency that is suffusing our entire culture.” Violent, sexually explicit lyrics and videos have “raised the stakes” in the controversy surrounding popular music. Should certain songs or videos be censored or restricted in some way? Is there justification for doing so? Should a line be drawn that sets limits…and who should draw that line?

2.A character in Martin McDonough’s play The Pillowman says, “It is pure and misguided sentimentality that asks us to believe that art is always somehow humane and humanizing, that artists, however indecent they might be as human beings, become noble when they make art, which must inevitably ennoble those who experience it. Nonsense. Some art is shit and some art is dangerous.” A recent example of art that has been perceived as “irresponsible” or dangerous came in 2005 when a Danish newspaper published 12 editorial cartoons that caricatured the prophet Muhammad. The Qur’an condemns idolatry (often interpreted as meaning aniconic images) and contemporary Sunni Islam generally sees any pictorial representation of Muhammad as an act of sacrilege. The fact that the editorial cartoons were caricatures prompted many Muslims to complain that they were Islamophobic, racist, and blasphemous. Consequently, the publication of these images sparked international fury among Muslim populations, which led to the bombing of the Danish Embassy in Pakistan and fires being set at the Danish Embassies in Syria, Lebanon, and Iran. More than one hundred deaths were reported in demonstrations that followed the publication of the cartoons. However, newspapers in Norway, France, Italy, and Spain reprinted the cartoons in the weeks following their initial publication citing “freedom of the press” as their justification. The French theologian Sohaib Bencheikh noted, “One must find the borders between freedom of expression and freedom to protect the sacred.”

Should artists be given free reign in the producing and displaying works that are offensive, objectionable, or disparaging of certain people’s beliefs and values? What responsibilities do artists have to their society? What responsibilities does the society have to its artists?

It is, of course, advisable to cite outside sources for support and frame your argument in the form of a formal essay (Look over “Presenting Arguments,” “ Tips On Writing Papers,” and “Critical Thinking” in the Syllabus).

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