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Nova Law Review
Volume 15, Issue 1 1991 Article 9

Obscenity, Music and the First Amendment:
Was the Crew 2 Lively?

Emily Campbell∗

Copyright c©1991 by the authors. Nova Law Review is produced by The Berkeley Electronic
Press (bepress).

Page 2

Obscenity, Music and the First Amendment:
Was the Crew 2 Lively?

Emily Campbell


For many years, courts all over the United States have told us

what kind of movies we can watch,4 what kind of books we can read

and what kind of photographs we can view.6 Now, one court in Florida

has told its citizenry that there are certain kinds of music that should

not be heard.

KEYWORDS: music, obscenity, amendment

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Nova Law Review

adult book and movie vendors challenged the constitutionality of a
Washington statute that penalized persons dealing with "obscene mat-
ter" that appealed to the "prurient interest." 198 "Prurient interest" was
defined as that which encouraged "lasciviousness or lust." 199 The Ninth
Circuit Court of Appeals held that the statute was unconstitutionally
overbroad.20 0 The court objected to the inclusion of "lust" in the defini-
tion of what appeals to the "prurient interest. 20 1 Noting that the law
must take into account the changing meaning of words, the court deter-
mined that the meaning of "lust" had changed since its use in Roth.
No longer were "lustful" thoughts objectionable, because lust was
found to be "healthy" and "wholesome," as well as "common to mil-
lions of well-adjusted persons.


The United States Supreme Court deferred to the lower court's
finding that the statute was overbroad. However, instead of striking the
entire statute, the Court maintained that if the statute were invalidated
"only insofar as the word 'lust' is taken to include normal interest in
sex," the statute could still serve to prohibit obscene materials.20 3 Thus,
the statute could be cured by merely deleting the word "lust".

The notion that the concepts of lust can change over time is an
important one.204 In the early 1900's, women were still wearing long
skirts, and the thought of women showing their ankles in public made
the moralists shudder.205 Since then, clothing styles have permitted the
halter top and the miniskirt to exist, styles that would never have been
permissible had it not been for a loosening of the screws of the Puritan-
ism that proliferated.0 6 Similarly, bathing suit styles have changed

198. WASH. LAWS, ch. 184 47th Legis. (effective April 1, 1982).
199. Brockett, 472 U.S. at 491.
200. J-R Distributers, Inc. v. Eikenberry 725 F.2d 482 (9th Cir. 1984), rev'd in

part sub nom. Brockett, 472 U.S. at 491.
201. Brockett, 472 U.S. at 499.
202. J-R Distributors, Inc., 725 F.2d at 490.
203. Brockett, 472 U.S. at 504-505.
204. Without changes in sexual mores, society would never advance. Since our

society overcame the Puritan oppression of the early days of our country, every genera-
tion has been bolder than the previous one. From the 1920's with the flappers, to the
sexual revolution of the 1960's and 1970's, books, movies and music have played a role
in the liberation of our attitudes toward sex. With the liberation of our attitudes toward
sex has come the recognition of equal rights for women and an openness about sexual
relationships and roles.

205. See, e.g., SEX IN THE ART: A SYMPOSIUM, supra note 138, at 279-313 (role
of clothing).

206. See generally P. SOROKIN, THE AMERICAN SEX REVOLUTION (1956).

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Nova Law Review, Vol. 15, Iss. 1 [1991], Art. 9

Page 43


both for men and women.2 °7 From the bathing suit that covered "every-
thing," society has allowed the Speedo and the "thong" to be worn. °s

Notions of nude bathing still trouble many people, but on some public
beaches, even nude sun bathing is permissible. 09

The relaxing of society's values about clothing styles is a reflection
of the changes in attitudes toward sexuality.21 0 These changes have also
been reflected in books and movies. Today, the daily soap opera and
movies such as Fatal Attraction all but display the genitals openly.


Some "main stream, .... artsy" movies, fearing an X-rating which would
mean certain death at the box office, refuse to receive a rating from the
Motion Picture Association of America; without a rating, they will be

207. All one has to do is to take a look at the Sports Illustrated swim suit issues
from the past two decades to see the difference in styles.

208. Even now in Florida, there is much public controversy over whether the "t-
back" bathing suit should be worn on public beaches. See Naked Truth: Florida City
Really Hates Adam & Eve Mural, Chicago Tribune, July 15, 1990 (discussing the
"moral outrage" Florida has been experiencing over a variety of issues including Nasty,
the t-back bathing suit, and a new mural that shows Adam and Eve from a rear view
sitting on the beach nude).

209. Nude sunbathing is popular in Europe, particularly in France. In fact,
Europeans overall have a much more liberal view of obscenity than Americans. Fur-
thermore, Amsterdam's "red light district" is famous all around the world for its live
sex shows, "porn shops," and legalized prostitution. See NATIONAL COUNCIL FOR
WORLDS OF THE ENLIGHTENMENT (G. Rousseau & R. Porter eds. 1988). Cf. McFar-
lane, Indecency and Obscenity: The View from Europe, 140 NEW L.J. 50 (1990) (dis-
cussing recent cases in the United Kingdom preventing the importing of obscene
materials); Reiman, Prurient Interest and Human Dignity: Pornography Regulation in
West Germany and the United States, 21 U. MICH. L.J. REFORM 301 (1987-88) (West
Germany uses a standard based on the concept of "human dignity" to regulate

210. There have clearly been changes in society's views of sexuality, although
some of the conservatives clearly oppose such changes. See TAKING SIDES: CLASHING

211. Some films have been able to avoid "obscenity" labels by merely hinting at
what is occurring. For example, in Fatal Attraction, in the "elevator" sex scene, at no
time does the audience see either Glenn Close's or Michael Douglas's genitals. How-
ever, the way the scene is shot, it is very erotic, and does everything but show the
genitals. For more information about erotica, see M. DAVIS, SMUT: EROTIC REALITY,
THE EROTIC: THE EROTIC AS POWER (1978); Comment, Regulation of Pornography: Is
Erotica Self-Expression Deserving of Protection? 33 LoY. L. REV. 445 (1987).



Campbell: Obscenity, Music and the First Amendment: Was the Crew 2 Lively?

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human life, [and] has indisputably been a subject of absorbing interest
to mankind through the ages; it is one of the vital problems of human
interest and public concern."416 However, sex is a great deal less myste-
rious than it used to be because of more open debate about sexuality.


Part of that debate has included pornography and obscenity.

Not only is sex powerful, but words themselves are powerful.41 9

Counted among those words are musical lyrics.420 Words about sex are
so powerful that society has sought to eliminate certain types of speech
by labeling them "obscenity."' 421 However, words are merely represen-
tations of ideas;422 yet, it is clear that the Court has decided that cer-
tain ideas are not worthy of first amendment protection.423

It is unfortunate that the first amendment has never been abso-
lute.424 Justice Black's view is a view that should have dominated first
amendment jurisprudence - an absolutist view.425 Black questioned
how long it would be before we started down the road to prohibiting
other types of speech that we value because, once started down the

416. Roth v. United States, 354 U.S. 476, 487 (1957). Society in general will
never be "safe" from pornography until it comes to grips with human sexuality. See S.
FREUD, TOTEM AND TABOO (1912-13) (discussing the evolution of society as a function
of taboos about sexuality); S. FREUD, CIVILIZATION AND ITs DisCONTENrs 64 (J.
Strachey trans. 1961) (" 'hunger and love are what moves the world.' ") (quoting the
poet-philosopher Schiller). See also SEX AND SOCIETY (J. Edwards ed. 1972).

417. See supra text accompanying notes 204-18.
418. See id.
419. Skyywalker Records, Inc., 739 F. Supp. at 585.
420. Id. There has been sexual music throughout history. Even the culturally

valued opera uses sexual speech. Sung in other languages, however, these operas if
translated into the street language that Nasty used would be deemed "obscene." See
Miller v. Civil City of South Bend, 904 F.2d 1081 (1990) (Orif's Carmina Burana, if it
were not sung in Latin, could not be broadcast).

421. This outrage over Nasty is nothing new. In the 1950's Elvis Presley and his
swinging "pelvis" were not televised on television. Elvis was filmed from the waist-up
for fear of his "sexual power."

422. See supra text accompanying note 2. One should keep in mind that when a
person uses profanity, the precise words embody the emotions. I know several people, as
I am sure everyone does, that refuse to use profanity. Yet, they make up other words
for "damn," "fuck," or "shit." Instead, these people might say, "Flibbity jibbet,"
"darnit," "heck," or even use "regular words" like "sunflower." They think that they
are doing something that is different from the curser. However, I would argue that
these are the same. It is the anger, the emotion, that is "hateful," not the words used.

423. See supra note 53.
424. See Schenck v. United States, 249 U.S. 47, 52 (1919) (Shouting fire in

crowded theatre and causing a panic).
425. See supra text accompanying notes 392-95.

1991] 239


Campbell: Obscenity, Music and the First Amendment: Was the Crew 2 Lively?

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Nova Law Review

"road of censorship, '426 we can never go back.42 7 The Court has long
been on the "road of censorship," allowing no protection for other "cat-
egories" of speech such as defamation.428

More than fifteen years ago, Justice Stevens noted that the obscen-
ity issue was overdue for reconsideration.429 It is now more than over-
due. Perhaps in this decade, the Court will reconsider the issue, realize
that there is no way to principally distinguish between pornography
and obscenity, and decide in favor of protecting all speech about

426. Since Black's comment, more than a few types of speech have been deemed
unprotectable. See supra note 53.

427. Since the Supreme Court's decisions regarding the fact that flag burning is
protected by the first amendment, some have called for a constitutional amendment to
make this conduct impermissible. One cartoonist captured the danger of this type of

© Don Wright; reprinted by permission of Don Wright and the Palm Beach Post.
428. See supra note 53.
429. See supra note 21.

240 [Vol. 15


Nova Law Review, Vol. 15, Iss. 1 [1991], Art. 9

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