Feature Articles

Obscenity and Violence in Music

On April 21, 1999, Eric Harris and Dylan Klebold let their rage and their bullets loose on faculty and students at Columbine High School in Littleton, Colorado. When the guns were silenced, 18 lay dead, including the two gunmen-felled by their own bullets. A horrified nation could only bring itself to wonder why two high school boys would harbor this kind of wrath and what could be the impetus to unleash this aggression upon innocent bystanders.

The infamous Columbine incident is not unique. News reports in recent years have become increasingly gorged with such tales of teenage violence; as America watches each story unfold, they can ask only "Why?" The natural, and often correct, assumption is that some form of mass media factored into the fierce outburst. The mass media is full of depictions and glorifications of violence. Whereas most violence has situational justification or is punished in a TV show or movie's denouement, violence in music is often portrayed as violence for the sake of violence, and the perpetrators rarely meet with any complications or punishment. It frequently even glorified. Many Americans point to these dangerous influences and demand action to curb the output and put the blame for teenage murder and gun attack tragedies squarely on the recording industry and the artists producing the music; however, even in the shadow of a multitude's cry for reform, hanging the legal responsibility on the recording industry is not morally or legally justifiable. Although there is a profuse amount of violence and obscenity in some music, the recording industry should not and cannot be required by law to control the lyrical content of its product or take responsibility for its affect on the mentally frail.

One of the most common arguments by plaintiffs in court cases involving violent lyrical content is that the artist and/or recording company were criminally negligent in using them. Negligence in a court of law denotes different circumstances than negligence in its dictionary definition. It means more than careless conduct. It entails a concept of duty and a breach thereof. To win a criminal negligence case, the plaintiff has the burden of proving that the defendant had a special duty to the plaintiff. Then the plaintiff must prove that this duty was breached and the breach caused whatever harm to the plaintiff. In the case of the recording industry, the plaintiff has to prove that the industry had an obligation to produce only innocuous content. Then the plaintiff needs to prove that the industry breached its duty by producing violent content. Finally, the plaintiff needs to prove that the injury or harm was a result of the recording industry's duty breach.

In determining whether or not there has been a breach of duty, courts have made a distinction between actually aiding and abetting criminal activity and simply expressing oneself. The difference between the two lies in intent. For example, books that give detailed instructions on how to commit heinous violence or murders and exist only to meet that end could be considered in the territory of a duty breach. This is because the only purpose of this book is to teach someone how to commit a crime. It is not a form of expression. On the other hand, films, songs, books, or ads can be forms of expression and, even if a mentally frail individual takes a hint from them to commit a crime, there has been no breach of duty. This is an important distinction because to deem books, songs, etc. of expression as having the potential to be in breach of duty would open the door to legal woes for productions of Shakespeare plays or war documentaries. In theory, any form of entertainment could be deemed as unreasonably risky.

Once the breach of duty has been established, the plaintiff needs to prove that there was a proximate cause-"any cause which, in natural and continuous sequence,…produces the result complained of and without which the result would not have occurred." Minimally, this means that the plaintiff has to prove the criminal act or injury would not have occurred if the defendant had acted differently. Linking crimes in reality with this is where the infamous "Suicide Solution" case against Ozzy Osbourne crumbled. The specific opinion of the court was there appeared to be no "close connection between [McCollum's] death and [Ozzy's] composition…and distribution years earlier of [the song]."

Strong defenses against criminal negligence lie within the constitution. The Supreme Court has ruled that the First Amendment covers entertainment. Not only does it cover the communication, but it also guarantees the originator's right to express the thought and the recipient's right to hear or read it. This is an important qualification of the law because the right to listen is as important as the right to sing. The Supreme Court has held that constitutional guarantees are routed only if the work is found to be "directed to inciting…imminent lawless action and is likely to produce such action." With this, the plaintiffs need to prove that the intent of the music was to convince the listener to break the law and that there is a good chance a listener could be convinced to do so. Even if the plaintiff can prove this, the court may not take action against the defendant if the work calls for illegal activity "at some indefinite future time". This fact is a very powerful ally of the recording industry. In the suicide case against Ozzy Osbourne, the plaintiffs were unable to show that Ozzy specifically said, "Kill yourself right now." Instead, the court saw it as an "unreasonable reaction to the music." The court also said that reasonable people know that lyrics are only figurative expression and that no rational person could mistake them for literal commands. This provides a rather large hurdle for plaintiffs in these cases. (Fornos)

The First Amendment does more than just protect artists from criminal negligence. It ensures that no matter what case is brought against someone, that person's rights to genuine artistic expression are ensured. The First Amendment was not intended for everyday speech. It was to be a shield for expression that might be "somewhat objectionable". Of course, the types of music that are thought to be most dangerous are the ones that will need the greatest level of protection. It doesn't make the courts critics. They operate without an aesthetic sense for the art they are deciding on. Therefore, even songs like General Surgery's "Orgy of Flying Limbs and Gore" are afforded protection.

The First Amendment does have its limits. As mentioned before, expression that is intended to incite imminent lawlessness may be abridged. Also, expression that seeks only to aid in criminal activity is equally open to abridgement. A third limit of the First Amendment is obscenity. Once a work is defined as obscene, it can be abridged or restricted as a court sees fit. Obscenity is determined by a three-part test derived from the Supreme Court's Miller v. California. A work may be banned as obscene if:

1. The average person…would find the work appeals to the prurient interest.
2. The work depicts…in [an]…offensive way sexual conduct [as] defined under state law.
3. The work, taken as a whole, lacks serious literary, artistic, political, or scientific value.

At first, it seems that the First Amendment protection of music suffers some thinning from this decision. Actually, the decision gave music more protection than any other form of expression. Title XVII of the United States Code deals with copyrighting musical works. It refers to the music and lyrics as a whole. The two do not exist independently. This means that regardless of how offensive someone may find a particular song or album, the court also needs to find that the music lacks any artistic value. Remember, courts are not art critics and they operate without an aesthetic. It would be very difficult for a court to find that the music itself was offensive. If the court can't find a lack of artistic value throughout music and lyrics, the song will face no restrictions. (Block)

The issue and all of the cases boil down to one common denominator: no one wants to take responsibility for their own actions. Displacing the blame on music is a common a simple escape from facing harder truths. When a disaster strikes and it seems vaguely linked to a malicious musical influence, fingers point and the scapegoat is chosen. The aforementioned tragedy in Littleton, Colorado is one of the most horrific incidences of school violence in American history. It also epitomizes the apathetic laziness that often marks these cases. One of the first places people looked after the day of violence was music. The two boys ran a website with KMFDM lyrics and were fans of Marilyn Manson. Unfortunately, these boys had problems greater than dangerous musical influence. From extremely young ages, these boys had walked reckless paths. Before the shootings, the two had been in trouble for vandalism and theft. They had made pipe bombs in a garage and left evidence easily in view of parents. Harris cut off the barrel of a shotgun and left the evidence on his dresser. Harris was diagnosed with obsessive/compulsive disorder and got a prescription for Luvox. The most disturbing evidence of trouble to come was in Harris' website and the boys' school projects. The website was packed with plans for murder and violence. The two also did several school projects about violence and hatred. Harris had a diary with more of the same violent thoughts. The parents, however, failed to intervene even when Harris' website is turned into the police for violent content or when a school counselor alerts Klebold's father to the frightening content in the essays. These were two troubled teenagers. The music they chose was not an impetus for violence. They listened to this music because of the aggression and rage in the music. Apparently, it was one of the few things with which they could identify. (Monsters Among Us)

Violent music is not only used to explain the actions of others. Some people attempt to justify their own illegal actions with music. In 1992, Ron Howard was driving a stolen car through Jackson County, Texas. When Officer Bill Davidson, a state trooper, pulled Howard over, Howard murdered the officer with a 9 mm pistol. While in court, Howard was to face the death penalty, so he attempted to defend his actions by claiming he killed Officer Davidson because the song by Tupac Shakur playing on the tape deck in the car forced him. After this, Davidson's wife sued Shakur and his label, Time-Warner. This is a situation where music was used to justify one's own actions and to offer comfort for someone else. Needless to say, neither use of the excuse with the song was valid and both suffered losses in court. (1997 U.S. Dist. LEXIS 21559)

Raymond Belknap and James Vance, two Nevada teenagers, went to a churchyard one afternoon with some Judas Priest, marijuana, beer, a shotgun and a suicide pact. Belknap pulled the trigger and killed himself. Vance pulled the trigger but he did not die that night. After the incident, Vance claimed Judas Priest had brainwashed Belknap and himself with the urge to commit suicide. The families of the two boys filed lawsuits against Judas Priest and CBS Records stating that Judas Priest's album Stained Class was full of subliminal messages. The court required the record label to hand over the master tapes of the record. Attorneys for the plaintiffs brought in expert witnesses who claimed they isolated subliminal messages repeating, "Do it. Do it." This case was another win for the recording industry. Vance's attempt to displace the responsibility on Judas Priest was unfounded. It is clear that anyone who would go to a churchyard with beer, marijuana, and a shotgun has prior mental issues that predispose that person for actions like this. (Block)

To hold the recording industry responsible for criminal activities that may arise from messages in music is not only nearly legally impossible, but also dangerous. To force this kind of responsibility would start a chain reaction of expression oppression. Holding the industry liable would cause producers and distributors to reduce their selection of any controversial material. This inhibition to select controversial material would lead to a frightening trend of self-censorship. This self-censorship would lead to a reduction in the diversity of musical expression available to the public. This would be a consequent violation of the First Amendment because, even though there is no law specifically stating it, controversial artists would find it difficult to locate a courageous outlet for their expression. It would simply become a situation of censorship. Anything that smells slightly of censorship is something Americans should rout immediately because it moves against everything in our cherished First Amendment. Also, allowing people to hold the recording industry liable would open the gates for a flood of cases. There is no doubt that America is suit-happy and willing to pounce on any chance for a relatively easy lawsuit that could at least result in a settlement with a payoff of millions of dollars. This kind of courtroom overpopulation would affect the judicial system's credibility and keep more legitimate cases out of court. (Fornos)

Music is in special need of First Amendment protection because the law sees both elements-the music and the lyrics-as a whole; therefore, if one is restricted, then the other is as well. That is why music is so thoroughly protected by law. Regardless of the violence and obscenity, the law cannot require the recording industry to take responsibility for criminal activities. When a tragedy occurs and America asks "Why?", they need to look at the real cause. Personal responsibility is something a lot of people need to learn. There is no special relationship between the industry and consumers. There is no breach of duty by the recording industry when a person re-enacts a Tupac Shakur song. Neither Tupac, nor his record label, had any obligation to watch out for Ron Howard's mental instability. Although there may be dangerous influences existent in music, these influences are protected just as any other expression as long as they are expression. This topic is just one that shows the power and flexibility of the First Amendment-the place in the Constitution where America ensures its ability to foster expression and continue as the land of the free.

Bibliography

1997 U.S. Dist. LEXIS 21559.

Block, Peter Alan. Modern Day Sirens: Rock Lyrics and the First Amendment.
     March, 1990. 63 S. Cal. L. Rev. 777

Fornos, Carolina A. Inspiring the Audience to Kill. Summer, 2000. 46 Loy. L. Rev. 441
Monsters Among Us. http://www.angelfire.com/tx2/coroner/columbin.html