Petition for Writ of Certiorari — Navarro v. Luke Records, Inc.

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FILED

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| SEP 16 1992

URFWe OF THE GLeha

Case No.:

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

NICHOLAS G. NAVARRO, SHERIFF OF

BROWARD COUNTY,

Petitioner,

VS.

LUKE RECORDS, INC.

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

RICHARD A. PURDY, ESQUIRE

SHAILER, PURDY & JOLLY, P.A.

Attorneys for Petitioner

1322 S.E. Third Avenue

Ft. Lauderdale, Florida 33316

(305) 462-3200

Fla. Bar No. 124506

QUESTION PRESENTED

WHETHER A PARTY/DEFENDANT

WHO IS CHARGED WITH THE

BURDEN TO PROVE "OBSCENITY"

IN A CIVIL OBSCENITY CASE

PREDICATED UPON 42 U.S.C. §1983

AS THAT TERM HAS BEEN DEFINED

IN MILLER y. CALIFORNIA, 413 USS.

15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973),

MUST CALL EXPERT WITNESSES TO

REBUT THE EXPERT TESTIMONY

OFFERED BY AN _ OPPOSING

PARTY/PLAINTIFF, REGARDING

THE THIRD PRONG OF MILLER

SUPRA WHERE THE

PARTY/DEFENDANT’S SOLE

EVIDENCE OF OBSCENITY IS THE

ALLEGEDLY OBSCENE LYRICS OF

THE MUSICAL COMPOSITION

ITSELF, i.e. IS IT CORRECT THAT A

DISTRICT COURT JUDGE SITTING

AS THE FINDER: OF FACT DURING

SUCH A CIVIL CASE CANNOT

LEGALLY DETERMINE WHETHER

THE LYRICS OF A MUSICAL

COMPOSITION ARE, IN_ FACT,

OBSCENE ABSENT EXPERT

REBUTTAL EVIDENCE, AND

CANNOT RELY UPON THE

INTRODUCTION OF THE

ALLEGEDLY OBSCENE MATERIAL

ITSELF AS THE ONLY EVIDENCE OF

OBSCENITY IN REGARD TO THE

THIRD PRONG OF MILLER, SUPRA?

TABLE OF CONTENTS

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1) The decision of the Eleventh Circuit Court of

Appeal is contrary to decisions previously rendered

by this Court, and addresses an important question of

federal law (whether experts must testify regarding

the third prong of Miller, supra in an obscenity case

involving the lyrics of a musical composition) which

has not been, but should be, settled by this Court.

Furthermore, the Eleventh Circuit decision departs

from an accepted and usual course of judicial

proceedings, calling for this Court to exercise its

power of supervision.

A i9

APPENDIX

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TABLE OF AUTHORITIES

Decisions - Federal

Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680

bs a re ery ae a wee eae ene i, ii, ili, 17, 18

Hamling v. U.S., 418 U.S. 87, 94 S.Ct. 2887

ER, Sa sats a ee RE RE CALE ee 15

Memoirs v. Massachusetts, 383 U.S. 413

RE Se eve 15

Miller v. California, 413 U.S. 15, 93 S.Ct. 2607

aE Rae Ge 6 shies ha ce le eae 3, 4, 9-20

Paris Adult Theater I v. Slaton, 413 U.S. 49, 93 S.Ct. 26,

Pr eee Se LEE ko ee eee ee keke een Ss 19

Other Authorities

Florida Statutues §847.011 (1990) .................. 7,8

ee a RS rk ai ss eh ee ee 2

United States Code, Title 42 §1983 ............ 3, 4, 8, 18

United States Code, Title 28 $2201(a) ... 2... ee 5, 8

Case No.:

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1992

NICHOLAS G. NAVARRO, SHERIFF OF

BROWARD COUNTY,

Petitioner,

VS.

LUKE RECORDS, INC.,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

The Petitioner, NICHOLAS G. NAVARRO, respectfully

prays that a Writ of Certiorari issue to review the judgment and

opinion of the United States Court of Appeals for the Eleventh

Circuit entered in this proceeding on May 7, 1992.

ee ae

OPINIONS BELOW

The Final Order dated June 6, 1990, issued by the United

States District Court Trial Judge appears in the Appendix

attached hereto. The Order of the United States Court of

Appeals for the Eleventh Circuit, dated May 7, 1992, reversing,

per curiam, the Final Order of the district court and Order

Denying the Petition for Rehearing and Suggestion of

Rehearing En Banc dated July 20, 1992, appear in the Appendix

attached hereto.

JURISDICTION

The decision of the United States Court of Appeals for the

Eleventh Circuit was rendered on May 7, 1992. A timely

Petition for Rehearing and Suggestion of Rehearing En Banc

was denied on July 20, 1992, and this Petition for Certiorari is

being timely filed within 90 days of the rendering of that Order.

Jurisdiction of this Court is invoked pursuant to \Title 28 U.S.C.

§1254(1).

Question Presented

WHETHER A PARTY/DEFEN-DANT

WHO IS CHARGED WITH THE

BURDEN TO PROVE "OBSCENITY"

IN A CIVIL OBSCENITY CASE

PREDICATED UPON 42 U.S.C $1983

AS THAT TERM HAS BEEN DEFINED

IN MILLER y. CALIFORNIA, 413 U.S.

15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973),

MUST CALL EXPERT WITNESSES TO

REBUT THE EXPERT TESTIMONY

OFFERED BY AN _ OPPOSING

PARTY/PLAINTIFF, WHERE THE

PARTY/DEFENDANT’S SOLE

EVIDENCE OF OBSCENITY IS THE

ALLEGEDLY OBSCENE LYRICS OF

THE MUSICAL COMPOSITION

ITSELF, ie. IS IT CORRECT THAT A

DISTRICT COURT JUDGE SITTING

AS THE FINDER OF FACT DURING

SUCH A CIVIL CASE CANNOT

LEGALLY DETERMINE WHETHER

THE LYRICS OF A _ MUSICAL

COMPOSITION ARE, IN FACT,

OBSCENE ABSENT EXPERT

REBUTTAL EVIDENCE, AND

CANNOT RELY UPON THE

INTRODUCTION OF THE

ALLEGEDLY OBSCENE MATERIAL

ITSELF AS THE ONLY EVIDENCE OF

OBSCENITY IN REGARD TO THE

THIRD PRONG OF MILLER, SUPRA?

Statutory Provision Involved

United States Code, Title 42 §1983, Civil Action for

Deprivation of Rights:

Every person who, under color

of any statute, ordinance,

regulation, custom, or usage, of

any State or Territory or the

District of Columbia, subjects,

Or causes to be subjected, any

citizen of the United States or

any other person within the

jurisdiction thereof to the

deprivation of any rights,

Privileges, or immunities

secured by the Constitution and

laws, shall be liable to the party

injured in an action at law, suit

in equity, or other proper

proceeding for redress. For

Purposes of this section, any act

of Congress applicable

exclusively to the District of

Columbia shall be considered

to be a statute of the District of

Columbia.

United States Code, Title 28 §2201(a),

Creation of Remedy:

(a) In a case of actual controversy within

its jurisdiction except with respect to

Federal taxes other than actions brought

under section 7428 of the Internal

Revenue Code of 1986, a proceeding

under section 505 or 1146 of title 1], or in

any civil action involving an antidumping

Or counter-vailing duty proceeding

regarding a class or kind of Canadian

merchandise, as determined by the

administering authority, any court of the

United States, upon the filing of an appro-

priate pleading, may declare the rights and

other legal relations of any interested

party seeking such declaration, whether or

not further relief is or could be sought.

Any such declaration shall have the force

—_————

and effect of a final judgment or decree

and shall be reviewable as such.

STATEMENT OF THE CASE

Luke Records, Inc., a Florida corporation (hereinafter

referred to as "LUKE RECORDS"), and a musical group known

as "2 Live Crew" produced a recording entitled "As Nasty As

They Wanna Be" (hereinafter referred to as "NASTY’).

Petitioner Nicholas G. Navarro (hereinafter referred to as

"NAVARRO") is the duly elected Sheriff of Broward County,

Florida.

In February of 1990, as the result of complaints made by

South Florida residents, the Broward Sheriff's Office began an

investigation of the NASTY recording, in order to determine if

probable cause existed to believe that the NASTY recording

violated §847.011, Florida Statutes (1990), which is Florida’s

"obscenity" law. A detective was assigned to the case, and on

February 26, 1990, he purchased a copy of the NASTY

recording from a local retail music store. The detective then

had six of the eighteen songs on the recording transcribed and,

along with those transcripts, he submitted a copy of the

recording in cassette tape format, as well as an affidavit

detailing the facts of his investigation, to the Hon. Mel

Grossman, who is a state Circuit Court Judge in Broward

County, Florida. On March 9, 1990, the Hon. Mel Grossman

issued his order finding probable cause to believe that the

recording NASTY was obscene as defined by §847.011, Florida

Statutes (1990) and applicable decisional law.

Thereafter, the Broward Sheriffs Office distributed copies

of Judge Grossman’s order to various local retail music stores,

and provided a warning that continued sales of NASTY could

result in arrest. These events were extensively covered by local

media with the result being that local sales of the NASTY

recording ceased.

On or about March 16, 1990, LUKE RECORDS filed a

cause of action in the United States District Court for the

Southern District of Florida pursuant to 42 U.S.C. §1983

seeking declaratory and injunctive relief. Therein LUKE

RECORDS sought to enjoin NAVARRO from interfering with

the sale of NASTY. LUKE RECORDS also sought a

declaratory judgment pursuant to 28 U.S.C. §2201 that the

recording NASTY was not obscene as that term has been

defined in Miller, supra. A non-jury trial was held before the

district court on May 14th and 15th, 1990. The district court

indicated in its Order dated June 6, 1990, at Page 2, that:

"The Court has considered the pleadings, exhibits,

testimony of the witnesses, plus argument of able

counsel. By the stipulation of the parties, the trial

record also includes all evidence and argument

presented at the Plaintiffs preliminary injunction

hearing held April 19, 1990."

During that trial LUKE RECORDS introduced expert

testimonial evidence which was designed to support LUKE

RECORDS position that the application of the test announced

in Miller, supra to the recording NASTY should result in a

finding that the recording is not obscene. NAVARRO, through

counsel, conducted cross-examination of each of LUKE

RECORDS’ expert witnesses, thereby providing the trier of fact

a complete picture regarding the significance of said expert

testimony and the weight, if any, the trier of fact should give

same. Furthermore, NAVARRO, through counsel during its

case-in-chief, introduced the actual recording NASTY as

evidence that the recording itself was, in fact, obscene as that

term has been defined in Miller, supra. NAVARRO, through

counsel, did not call expert witnesses of his own to rebut the

expert testimony offered by LUKE RECORDS and instead

relied upon his cross-examination of LUKE RECORDS’ expert

witnesses and the recording NASTY as evidence that NASTY

is obscene. At the conclusion of the non-jury trial, the Hon.

Jose A. Gonzalez, Jr., U.S. District Court Judge entered a Final

Order wherein the district court granted the injunction, as the

trial court determined that NAVARRO’S actions constituted an

unconstitutional prior restraint on free speech. (Appendix

A)(NAVARRO did not appeal this ruling below.) The trial

court also declared that the recording NASTY is obscene under

Miller, supra. (Appendix A)

The United States Court of Appeals for the Eleventh

Circuit reversed on the issue of obscenity and concluded in

pertinent part, as follows:

"The Sheriff concedes that he has the burden of

proof to show that the recording is obscene. Yet, he

submitted no evidence, [other than the recording

NASTY itself and cross-examination of Respondent’s

witnesses] to contradict the testimony that the work

had artistic value. A work cannot be held obscene

unless each element of the Miller test has been met.

We reject the argument that simply by listening to

this musical work, the judge could determine that it

had no serious artistic value." (Appendix B)

The United States Court of Appeal for the Eleventh

Circuit subsequently denied NAVARRO’S Petition for

Rehearing and Suggestion of Rehearing En Banc. (Appendix

ARGUMENT

Reasons for Granting the Writ

1) The decision of the Eleventh Circuit

Court of Appeal is contrary to decisions

previously rendered by this Court, and

addresses an important question of federal

law (whether experts must _ testify

regarding the third prong of Miller, supra

in an obscenity case involving the lyrics of

a musical composition) which has not

been, but should be, settled by this Court.

Furthermore, the Eleventh Circuit

decision departs from an accepted and

usual course of judicial proceedings,

calling for this Court to exercise its power

of supervision.

This case, in a nutshell, involves the question of "what

type" and "how much" evidence or rebuttal evidence is required

to satisfy the third prong of Miller, supra in an obscenity case,

operating under the assumption that where "musical lyrics" are

involved, a district court judge, sitting as finder of fact, does not

have the wherewithal to determine whether the musical lyrics

are obscene under Miller, supra simply by listening to the lyrics

themselves. In short, "[t]he panel decision of May 7, 1992, is a

remarkable departure from the traditional concepts of evidence,

weight of evidence, district court discretion in the admission of

evidence and fact finding by judge or jury. It is an

unprecedented ruling that in obscenity cases, the government

must have expert testimony to rebut expert testimony regarding

the third prong of Miller, supra, as applied to the musical lyrics.

There are no other cases that give such conclusive effect to the

weight and credibility of expert testimony." (Appendix D, at Pg.

The Eleventh Circuit Court of Appeals indicated in its Order

that,

“It can be conceded without deciding that the Judge’s

familiarity with contemporary community standards

is sufficient to carry the case as to the first two

prongs of the Miller, supra test. . . ." (Appendix B)

The Eleventh Circuit then went on to conclude that,

"The record is insufficient, however, for this court to

assume the fact finder’s artistic or literary knowledge

or skills to satisfy the last prong of the Miller, supra

analysis which requires determination of whether a

work ‘lacks serious artistic, scientific, literary or

political value.” (footnotes omitted)

Petitioner questions whether any record could ever contain

“evidence of the fact finder’s personal knowledge regarding

artistic or literary topics. Is it now the law that in obscenity

cases involving the lyrics of a musical composition that finders

of fact, whether they be judges or jurors, be required to testify

on the record to the extent of their knowledge of artistic or

literary topics? If so, then this decision will certainly be

considered a milestone in constitutional law. The Eleventh

Circuit, not seeing any evidence of the finder of fact’s personal

knowledge of artistic or literary topics then concludes that Judge

Gonzalez could not apply the third prong of Miller, supra where

the sole evidence of obscenity was the cross-examination of

Plaintiffs expert witnesses and the recording NASTY itself.

This peculiar result perhaps can be attributed to the fact that

the Eleventh Circuit has never been called upon to review an

obscenity case involving the lyrics of a musical composition.’ In

short, the Eleventh Circuit has drawn a distinction between the

allegedly obscene lyrics of a musical composition and any other

form of allegedly obscene material, with the result being that the

former should be given some greater protection under the law,

by requiring expert testimony to assist the ill-equipped finder of

fact in the application of the third prong of Miller, supra.

The Eleventh Circuit has decided that as a matter of

‘This case is apparently the first time that a court of appeals

has been asked to apply the Miller, supra test to a misical

composition, which contains both instrumental music and lyrics.

(2/footnotes omitted) Although we tend to agree with

Appellant’s contention that because music possesses inherent

artistic value, no work of music alone may be declared obscene,

that issue is not present in this case." (Appendix B)

federal constitutional law, expert testimony must be offered by

the party with the burden to prove obscenity, in order to meet

the requirement of the third prong of Miller, supra, where the

allegedly obscene material involves the lyrics of a musical

composition. The Court in so holding specifically rejected the

argument that the finder of fact (in this case a district court

judge) could rely on its review of the allegedly obscene material

as the sole evidence that the material lacks serious artistic,

scientific, literary or political value.

This Court, in Miller, supra, revised the third prong of the

obscenity test previously formulated in "Memoirs," thereby

imposing a lesser burden upon the party charged with proving

obscenity.? The Eleventh Circuit has now determined that the

application of the third prong of Miller, supra to allegedly

obscene musical lyrics requires "more" evidence than would be

y more

"Memoirs _v. Massachusetts, 383 U.S. 413 (1966) from

Hamling v. U.S., 418 U.S. 87, 94 S.Ct. 2887 (1974)

*The Miller, supra court made this revision as this aspect of

"Memoirs" "represented a departure from the definition of

obscenity in Roth and because . . . it imposed a burden virtually

impossible to discharge . . .". Hamling, supra

iitenaiaimmeaniiail

necessary in an obscenity case involving another form of

material such as film or books. This increased burden is not

required by federal constitutional law and this court should

clarify this point, as there should be no distinction between one

form of allegedly obscene material and another in terms of the

application of the third prong of Miller, supra.

It is axiomatic that the First Amendment to the United

States Constitution, among’ other things, protects

communications and_ expressions regardless of their

technological format. It is this flexibility that gives this

amendment to the Constitution its resilience in the face of mans

technological advancement in forms of communication and

expression. Likewise, it is well settled that certain types of

communication and expression are not afforded First

Amendment protection. Obscene speech represents only one

type of unprotected speech. Therefore, if "speech" is obscene,

it is not protected, regardless of what technological form it

comes in, be it film, laser video disc, stage performance or

musical lyrics. The question is: Is it obscene? The answer is

found in the application of Miller, supra. The Eleventh Circuit

has now modified the third prong of Miller, supra by requiring

more evidence than what is otherwise required simply because

this case involves a form of communication, i.e. musical lyrics,

that the Miller, supra test had not been previously applied to.

This decision is clearly contrary to the decisions of this Court

regarding application of Miller, supra.

In Kaplan v. California, 413 U.S. 115, 93 S.Ct. 2680 (1973),

the prosecution tendered the obscene book (Suite 69) and the

testimony of a vice police officer as an expert on obscenity. "No

expert state testimony was offered that the book was obscene

under national standards or that the book was utterly without

redeeming social importance despite expert defense testimony

to the contrary.". This Court indicated that the record, as a

matter of federal constitutional law, supported the conviction

and indicated in a footnote that the prosecution’s

introduction of the book itself into evidence was adequate as a

matter of federal constitutional law, to establish the book’s

obscenity.". Thus Kaplan, supra involves the same issue of

_——

unrebutted expert opinion testimony as does the case at bar.

The result is that the record contained in the Kaplan, supra case

was sufficient as a matter of federal constitutional law to

support criminal convictions, however, where the allegedly

obscene material is the lyrics of a musical composition the same

record would not support the finding of obscenity in a civil case

predicated upon 42 U.S.C. §1983. This Court in Miller, supra

specifically stated:

"The basic guidelines for the trier of fact must be: (a)

whether ’the average person, applying contemporary

community standards’ would find that the work, taken

as a whole, appeals to the prurient interest. (citations

omitted); (b) whether the work depicts or describes,

in a patently offense 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." (emphasis

supplied)

Now, in the Eleventh Circuit where the ' ork" is the lyrics of a

musical composition, the "basic guidelines for the trier of fact",

regarding application of the third prong of the Miller, supra test

must include expert testimony as the trier of fact does not

possess the expertise necessary to apply the third prong to a

musical composition. (emphasis supplied)

The Honorable Jose Gonzalez, Sitting as finder of fact at

the district court level, indicated that "the law does not require

expert testimony in an obscenity case. The defendant

introduced the Nasty recording into evidence. As noted by the

Supreme Court in Paris Adult Theater I vy. Slaton, 413 U.S. 49,

93 S.Ct. 26, 37 L.Ed.2d 446 (1973), when the material in

question is not directed to a bizarre, deviant group not within

the experience of the average person, the best evidence is the

material, which can and does speak for itself." (See Appendix

A, Pg. 24) This is a correct statement of the law.

CONCLUSION

The law is clear. The test announced by this Court in

Miller, supra, applies to the allegedly obscene lyrics of a musical

composition. It is also clear that the law does not require

expert testimony in the application of any of the prongs of the

Miller, supra test. Likewise, it is well settled that the finder of

fact, be it juror or judge, can rely on the allegedly obscene

material itself in application of all three prongs of the Miller,

i iii

supra test. The Eleventh Circuit should not be allowed to make

it a requirement of federal constitutional law that the finder of

fact must be presented with expert testimony and cannot rely

upon introduction of the allegedly obscene material itself in

application of the third prong of Miller, supra simply because

the allegedly obscene material involves lyrics of a musical

composition. Therefore, this Court should grant this Petition

and re-establish the correct federal constitutional law in the

Eleventh Circuit.

Respectfully submitted,

SHAILER, PURDY & JOLLY, P.A.

Attorneys for Petitioner

1322 S.E. Third Avenue

Ft. Lauderdale, Florida 33316

(305) 462-3200

RICHARD A. PURDY

Fla. Bar No. 124506

APPENDIX A

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO: 90-6220-CIV-JAG

SKYYWALKER RECORDS, INC.,;

LUTHER CAMPBELL; MARK ROSS;

DAVID HOBBS;

and CHRIS WONGWON,;

Plaintiffs,

NICHOLAS NAVARRO,

Defendant.

FINAL ORDER

This is a case between two ancient enemies: Anything

Goes and Enough Already.

Justice Oliver Wendell Holmes, Jr. observed in Schenck

v. United States, 249 U.S. 47(1919), that the First Amendment

is not absolute and that it does not permit one to yell "Fire" in

a crowded theater. Today, this court decides whether the First

Amendment absolutely permits one to yell another "F": word

anywhere in the community when combined with graphic sexual

descriptions.

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Two distinct and narrow issues are presented: whether

the recording As Nasty As They Wanna Be (Nasty) is legally

obscene; and second, whether the actions of the defendant

Nicholas Navarro (Navarro), as Sheriff of Broward County,

Florida, imposed an unconstitutional prior restraint upon the

plaintiffs’ right to free speech.

It is before the court following a trial on the merits held

May 14 and May 15, 1990. The court has considered the

pleadings, exhibits, the testimony of the witnesses, plus argument

of able counsel. By the stipulation of the parties, the trial

record also includes all evidence and argument presented at the

plaintiffs’ preliminary injunction hearing held April 19, 1990.

THE PLAINTIFFS

The plaintiff Skyywalker Records, Inc. (Skyywalker) is a

Florida corporation headquartered in Miami, Florida. The

plaintiffs Luther Campbell, Mark Ross, David Hobbs, and Chris

Wongwon, constitute the group known as "2 Live Crew" whose

recording, As Nasty As They Wanna Be, is the subject of this

lawsuit. Luther Campbell is also the President, Secretary, sole

lll

A -3

shareholder, and sole director of Skyywalker.

The plaintiffs have brought this action under section

1983, Title 42 of the United States Code, which provides a

federal statutory remedy for unlawful deprivations of federal

rights including those liberties guaranteed under the United

States Constitution. The plaintiffs also seek a declaration of

their legal rights, under the Federal Declaratory Judgment Act,

28 U.S.C. §2201(a), and injunctive relief under section 2202(b)

thereof. This court has previously denied the plaintiffs’ motion

for a preliminary injunction by ore tenus order entered April 19,

1990. There is no prayer for money damages.

Because this is a civil action, the party with the burden

of proof must prevail by a preponderance of the evidence. On

the issue of obscenity, the defendant Navarro has the burden of

proof. As to the prior restraint claim, however, the plaintiffs

have the burden to prove, beyond a preponderance of the

evidence, that the defendant’s actions were unconstitutional.

It must be emphasized at the outset that this decision

does not criminalize the plaintiffs’ conduct, nor does it charge

A-4

anyone with a crime. That is a matter for the police and the

criminal courts to determine. Whether the plaintiffs are guilty

of a crime can only be decided if criminal charges are brought,

a trial by jury conducted, and all other due process requirements

have been met. Whether As Nasty As They Wanna Be is

criminally obscene is left for the determination of another court

on another day.

THE FACTS

The recording As Nasty As They Wanna Be was released

to the public by 2 Live Crew in 1989. To date, public sales have

totalled approximately 1.7 million copies. The recording is

available in various formats including phonograph records,

cassette tapes, and compact discs. 2 Live Crew has also

produced a recording entitled As Clean As They Wanna Be

(Clean) which has sold approximately 250,000 copies. Although

neither party introduced Clean into evidence, it apparently

contains the same music as Nasty but without the explicit sexual

lyrics.

In mid-February 1990, the Broward County Sheriff's

ni eniaeiainineiiiaiiliiiiaeas ial

A-5

office began an investigation of the Nasty recording. The

investigation began in response to complaints by South Florida

residents.

Broward County Deputy Sheriff Mark Wichner was

assigned to the case. On February 26, 1990, he traveled to

Sound Warehouse, a Broward County retail music store, and

purchased a cassette tape copy of the Nasty recording. The tape

was purchased from an open display rack marked "Rap Music",

easily accessible to all of Sound Warehouse’s customers

regardless of age.

Deputy Wichner listed to the Nasty recording, had six of

the eighteen songs transcribed, and prepared an affidavit

detailing these facts requesting that the Broward County Circuit

Court find probable cause that the Nasty recording was legally

obscene. On February 28, 1990, Deputy Wichner submitted the

affidavit, an attached transcript of the six songs, and the tape

cassette of the Nasty recording to the duty judge of the Broward

County Circuit Court, the Honorable Mel Grossman. The

communications between Deputy Wichner and Judge Grossman

A-6

were limited to the filing of the affidavit, transcript, and tape

cassette. Several days later, Judge Grossman’s chambers

contacted the deputy and requested further information

concerning the location in Sound Warehouse of the Nasty

recording and its accessibility to the public. Deputy Wichner

communicated that information to the judge.

On March 9, Judge Grossman issued an order after

reviewing the Nasty recording "in its entirety." The judge

explicitly found probable cause to believe this recording was

obscene under section 847.011 of the Florida Statutes and under

applicable case law.

The Broward County Sheriff's office received and copied

the order, and distributed it county wide to retail establishments

that might be selling the Nasty recording. It decided to "warn

the stores as a matter of courtesy" rather than make an initial

arrest because, according to Deputy Wichner’s testimony, such

conduct would have been overaggressive. The Sheriff's office

has not opened any investigations of other musical recordings

because of the absence of citizen complaints.

A-7

Thereafter, Deputy Wichner re-visited the store where

he had purchased the Original recording plus another Sound

Warehouse outlet and a store called Uncle Sam’s Records. On

these visits, the deputy wore a jacket marked "Broward County

Sheriff" and displayed his badge in plain view. He spoke with

a manager in each of the three stores, provided them with a

copy of Judge Grossman’s order, and told them, in a friendly

conversational tone, that they should refrain from selling the

Nasty recording. The managers were warned that further sales

would result in arrest and that if convicted, the penalty for

selling to a minor was a felony, and a misdemeanor if sold to an

adult. Between fifteen and twenty different Broward County

stores were personally visited by the Sheriff's office, and the

evidence indicates that each of the visits was conducted in the

same manner as were Deputy Wichner’s three stops.

The Sheriff's office warnings were very effective. Within

days, all retail stores in Broward County ceased offering the

Nasty recording for sale. Those stores not directly visited by

3 deputy sheriffs pulled the recording from their shelves after

A - 8

hearing about the visits from television and radio reports. Some

stores continued to sell the Clean recording. Nasty was no

longer sold even by stores having a policy of specially marking

the recording with a warning, and of not selling it to minors. 2

Live Crew also includes a small statement on the front of the

paper insert to their records, as follows: "WARNING:

EXPLICIT LANGUAGE CONTAINED".

The Broward County Sheriffs office took no further

action because there was no information that any store was

selling the Nasty recording.

On March 16, 1990, the plaintiffs filed this action in

federal district court. On March 27, 1990, Sheriff Nicholas

Navarro filed an in rem proceeding in Broward County Circuit

Court against the Nasty recording seeking a judicial

determination that it was obscene under state law. See Navarro

v. The Recording "As Nasty As They Wanna Be", case number

90-09324(12) (Reasbeck). There is no evidence of the status of

the state case including whether a trial date has been set. No

criminal proceedings against either the recording or the group

A-9

2 Live Crew have been instituted.

OBSCENITY AND THE FIRST AMENDMENT

The First Amendment to the United States Constitution

provides that "Congress shall make no law...abridging the

freedom of speech." The Fourteenth Amendment declares that

"[nJo State shall...deprive any person of...liberty...without due

process of law." It is now well established that this "liberty"

includes the right to free speech. See Chaplinsky v. New

Hampshire, 315 US. 568,570-71(1942); Roth v. United States,

354 U.S. 476,479-80(1957); Stanley _v. Georgia, 394 USS.

557,559(1969); Miller _v. California, 413 USS. 15,20(1973).

Hence, neither the federal nor the state governments may

abridge this Constitutional right.

The First Amendment is one of our most sacred liberties

since freedom of thought and speech are the key to the

preservation of all other rights. Free speech plays a critical role

in furthering self-government, in encouraging individual self-

realization, and fostering society’s search for truth via exposure

to a "marketplace of ideas."

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To protect that sacred right, the judiciary carefully

scrutinizes government regulation to determine if such

regulation impermissibly infringes upon it. When legislative or

executive action is directed at the content of one’s speech, it will

pass judicial review only upon a showing that the action is

designed to further a compelling governmental interest by

narrowly drawn means necessary to achieve the end. See, e.g.,

Widmar vy. Vincent, 454 U.S. 263,270-71(1981).

The First Amendment’s guaranty is not absolute,

however. See, e.g., Chaplinsky, 315 U.S. at 571. Although the

amendment is unconditional on its face, the fact that there were

accepted state limits on speech at the time it was ratified

indicates that the "phrasing of the First Amendment was not

intended to protect every utterance." Roth, 354 U.S. at 483.

This is certainly true about speech on sexual subjects.

Obscene speech has no protection under the First

Amendment. See Sable Communications of California, Inc. v.

FCC, __ US.__, 109 S.Ct. 2829,2835(1989); Paris Adult Theatre

Iv. Slaton, 413 U.S. 49,57(1973); Miller, 413 U.S. at 20; Roth,

renal

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354 U.S. at 483; Chaplinsky, 315 U.S. at 571-72. The rationale

is simple: the message conveyed by obscene speech is of such

slight social value that it is always outweighed by the compelling

interests of society, as manifested in the laws enacted by its

elected representatives. See, e.g., Chaplinsky, 315 U.S. at 571-

72.

Sex has been called "a great and mysterious motive force

in human life". Roth, 354 U.S. at 487. Because of its power,

both federal and state governments have chosen to regulate its

abuse. For example, states have banned prostitution, incest,

rape, and other sexually related conduct. These prohibitions are

no different that a ban on obscenity. The distinction between

regulations of conduct and speech does not invalidate obscenity

laws. As noted in Miller v. California, "Sex and nudity may not

be exploited without limit by films and pictures exhibited or sold

in places of public accommodation any more than live sex and

nudity can be exhibited or sold without limit in such public

places." 413 U.S. at 25-26.

The state may also have an important interest in

A-12

protecting minors and unwilling or sensitive adults from

exposure to obscene materials. See Miller, 413 U.S. at 18-19.

The plaintiffs attempt to diminish the state’s interest by

relying upon language in Butler v. Michigan, 352 U.S. 380(1957),

that if materials that are only obscene as to minors are banned,

a State’s statute would "reduce the adult population...to reading

only what is fit for children." Id. at 383. This decision only

applies, however, to governmental regulations of materials which

are not obscene as to adult audiences. Certainly it is not

improper for a state to protect children from materials which

are too lewd for even adult consumption.

Words, including musical lyrics, are powerful. As noted

in Paris Adult Theatre I,

[If there is a] well nigh universal belief that good

books, plays, and art lift the spirit, improve the

mind, enrich the human personality, and develop

character, can we then say that a state legislature

may not act on the corollary assumption that

commerce in obscene books, or _ public

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exhibitions focused on obscene conduct, have a

tendency to exert a corrupting and debasing

impact leading to antisocial behavior? 413 U.S.

at 63.

Even though there is no Constitutional protection for

obscenity and there are potential governmental interests at

Stake, it does not necessarily mean that obscene speech is illegal.

Indeed, state governments could legalize obscenity including use

by consenting adults. See, e.g., United States v. Twelve 200-

Foot Reels of Super 8mm. Film, 413 U.S. 123,129(1973).

The government must first criminalize obscenity before

it is outlawed. Indeed, if there were no Statutory bans enacted

by the legislature, courts would not have to decide what is and

what is not obscene.

The U.S. Supreme Court discussed this in United States

v. Reidel, 402 U.S. 351,356-57(1971):

[C]ases have interpreted the First Amendment

not to insulate obscenity from statutory

regulation. But the Amendment itself neither

A- 14

proscribes dealings in obscenity nor directs or

suggests legislative oversight in this area. The

relevant constitutional issues have arisen in the

courts only because law-makers having the

exclusive legislative power have consistently

insisted on making the distribution of obscenity

a crime or otherwise regulating such materials

and because the laws they pass are challenged as

unconstitutional invasions of free speech and

press.

The Florida Legislature has acted, however. It has

enacted a statutory scheme outlawing obscenity. It is apparent

that this legislation is intended to regulate obscenity to the

maximum extent allowed by the Constitution of the United

States. Section 847.001(7), Florida Statutes, tracks the language

of the controlling case of Miller _v. California in defining

obscenity for purposes of the state ban. Cf. A Book Named

"John Cleland’s Memoirs Of A Woman Of Pleasure" v. Attorney

General of Massachusetts (Memoirs), 383 U.S. 413,418(1966)

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(state statute interpreted by state’s highest court as including all

works “obscene in the constitutional sense").

The Florida Legislature has enacted a comprehensive set

of laws. The primary provision is section 847.011 of the Florida

Statutes. Subsection (1)(a) criminalizes the distribution, sale, or

production of any obscene thing including a "recording" which

can be "transmuted into auditory...representations." Subsection

(2) similarly makes it a crime for a person to knowingly have an

obscene thing, including musical recordings, in his possession.

Section 847.06 and 847.07 make it criminal to transport

obscenity into the state or to create, deliver, or publish

obscenity. There are several provisions which specifically apply

to child pornography. See FLA. STAT. ANN. §§847.012, .0125,

O13, .0135, .0145(Supp. 1990). Finally, sections 847.201 and

847.202 prohibit obscene programming on cable television

during promotional periods and require ratings on video tapes

rented and sold to the public.

An argument underlying the plaintiffs’ position is that

the obscenity or non-obscenity of any material should not be a

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concern of the criminal law, but rather should be left to the free

market of ideas. Let each individual member of the public

decide whether they wish to buy the material. 2 Live Crew has

labeled their work with an explicit warning. They claim this

label allows adults who would object to the recording’s contents

to exercise the consumer’s right of free choice to not buy the

product. To use the example of television, if the viewer does

not like what he sees on Channel X, he may switch to Channel

Y or turn off the set. In the case of obscene music, people who

do not want to listen to obscenity do not have to buy it.

This is the argument of those absolutists who believe all

speech, regardless of its content, is protected by the First

Amendment. Such individuals label all regulation of speech as

"censorship" and "paternalism". This absolutist view finds

strength among those who believe rugged individualism is a

valued virtue, if not a protected right that everyone should be

permitted to "do their own thing."

This is a facially appealing argument. The problem is

that it is not the law.

—

—EeEE—EE———EE

A-17

Florida has declared obscenity to be a crime. To repeat,

violation of the laws against obscenity is as much against the law

as assault, rape, kidnapping, robbery, or any other form of

behavior which the legislature has declared criminal.

The absolutists and other members of the party of

Anything Goes should address their petitions to the Florida

Legislature, not to this court. If they are sincere let them say

what they actually mean--Lets’ Legalize Obscenity!

To be redundan; cuscenity is not a protected form of

speech under the U.S. Censtitution, with or without voluntary

labeling. It is a crime. [i the people of Florida, want to legalize

obscenity, they have every right to do so. It is much easier to

criticize the law, however, than it is to work to repeal it. As the

Supreme Court stated in Paris Adult Theatres I:

It is argued that individual “free will"

must govern, even in activities beyond the

protection of the First Amendment and other

constitutionai guarantees of privacy, and that

government cannot legitimately impede an

A - 18

individual’s desire to see or acquire obscene

plays, movies, and books. We do indeed base

Our society on certain assumptions that people

have the capacity for free choice. Most exercises

of individual free choice--those in_ politics,

religion, and expression of ideas--are explicitly

protected by the Constitution. Totally unlimited

play for free will, however, is not allowed in our

or any other society...

The States, of course, may follow...a

"laissez-faire" policy and drop all controls on

commercialized obscenity, if that is what they

prefer, just as they can ignore consumer

protection in the marketplace, but nothing in the

Constitution compels the States to do so with

regard to matters falling within state jurisdiction.

413 U.S. at 63-64(emphasis in original).

This court’s role is merely to interpret the law to

determine whether the particular material is obscene. If the

A-19

inquiry yields an affirmative response, judicial review is limited

to whether the means chosen to implement the law are

rationally related to the goal of the legislation. It is not the role

of this court to sit as a Super-legislature to second-guess

whether the best possible law was passed. See Paris Adult

Theatre I, 413 U.S. at 64. This court must also refrain from

substituting its own choice of the appropriate means to outlaw

obscenity, for this is a matter of legislative discretion subject

only to the boundaries of the Constitution and the conscience

of the legislators. See Kingsley Books, Inc. v. Brown, 354 US.

436,441(1957). And if a statute only regulates unprotected

obscenity, mere rationality is sufficient to satisfy due process.

In an era where the law and society are rightfully

concerned with the rights of minorities, it should not be

overlooked nor forgotten that majorities also have rights.

In our democratic form of government, citizens elect

representatives to protect their interests and promote their

welfare. State legislatures have the authority to exercise the

governmental police power which reaches all manner of human

A - 20

conduct. As already seen, state regulation may. reach some of

the most intimate aspects of man’s existence including sex. Also

see Paris Adult Theatre I, 413 U.S. at 68-69("Commercial

exploitation of depictions, descriptions, or exhibitions of obscene

conduct on commercial premises open to the adult public falls

within a State’s broad power to regulate commerce and protect

the public environment."). When man enters into a society and

becomes a member thereof, he necessarily submits to its laws

and thereby must give up the unfettered liberty he would

otherwise possess in his natural state. See Near v. Minnesota,

283 U.S. 697,707(1931).

In sum, if persons subscribe to the view that obscenity

should be legalized, they should take their petitions to

Tallahassee, the Florida capital, not to the steps of the US.

courthouse.

The people of Florida have made obscenity a crime.

Individuals are not free to disobey or disregard the law. The

law is not a smorgasbord where people are free to pick and

choose among which laws they will obey and which they will

A - 21

reject. Neither is it a channel selector available to every

member of the public to use as they deem fit. As noted in the

Pattern Instructions of the Eleventh Circuit, jurors in deciding

the rights and liberties of their fellow citizens "must...follow the

law...whether.....[they] agree with that law or not."

Men and women in good faith may agree or disagree as

to whether obscenity should be prohibited. They can argue that

the obscenity statutes should or should not be repealed. In the

meantime, however, the law must be obeyed and the Sheriff has

a duty to enforce it. Indeed, Florida’s Legislature has mandated

that all sheriffs in the state are to “vigorously enforce" the

obscenity laws. See FLA. STAT. ANN. §847.001(9)(Supp.

1990).

THE MILLER V. CALIFORNIA TEST

In deciding whether a specific work is or is not obscene,

the court must apply the controlling test enunciated in Miller v.

California, 413 U.S. 15(1973). To be obscene, there must be

proof of all three of the following factors: (1) the average

person, applying contemporary community standards, would find

A - 22

that the work, taken as a whole, appeals to the prurient interest,

(2) measured by contemporary community standards, 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. Id.; also see Memoirs, 383 U.S. at 419(to be

obscene, all three elements must be met and each element must

be "independently" evaluated); Penthouse International, Ltd. v.

McAuliffe, 610 F.2d 1354,1363(Sth Cir. 1980)(same); United

States v. Various Articles of Obscene Merchandise, 709 F.2d

132,135(2nd Cir. 1983)(same).

THE RELEVANT COMMUNITY

Both the first and second elements of Miller require

application of "contemporary community standards." The issues

of the size of the appropriate community, its composition, and

the view of the average person in that group are all questions of

fact to be decided by the trier of fact, which is the court in this

case. See Miller, 413 U.S. at 30.

Both parties apparently assumed that the relevant

A - 23

community was only Broward County, Florida. Neither litigant

presented any evidence to support this assumption, which was

apparently based upon the jurisdiction of the Broward County

Sheriff and the County lines. However, the boundaries of the

relevant community under Miller are a matter for judicial, not

legislative, determination. See Smith, 431 U.S. 291, 303(1977).

This court finds that in assessing whether this work is

obscene, the relevant community is the area of Palm Beach,

Broward, and Dade Counties. In reaching this determination,

the court has considered numerous factors. These three

adjoining counties share common geography on the eastern

coast of Florida. They also share beachfront on the Atlantic

Ocean including all the common experiences that derive

therefrom including the exposure to tourists. All three counties

are Open communities in the sense that visitors, from abroad

and other states, come to South Florida to vacation and resettle.

The area is also linked via common transportation. The three

counties are connected by rail (Florida East Coast, Amtrak, and

Tri-Rail), water (Atlantic Ocean and the Intracoastal

A - 24

Waterway), air, and highway (Federal Highway, Florida

Turnpike, and Interstate 95). Through these transportation

links, the labor forces of Broward and Dade on the one hand,

and Broward and Palm Beach on the other, commingle. Each

county has targeted media, but the three counties generally

share access to the same radio and television stations and

newspapers. Culturally, there is also a strong connection. Even

though each county has a distinct mix of ethnic peoples, cultural

events are advertised to and attended by the residents of all

three. Because of the strong transportation ties, the area is also

linked economically. Trade and industry in South Florida do

not limit their business by county lines. Palm Beach, Broward

and Dade also share a similar composition of rural and urban

areas, with the larger cities in the eastern portion of each

county. Finally, there are political ties. Florida House and

Senate Districts include areas within both Broward and Palm

Beach. Other State House and Senate Districts include both

Broward and Dade Counties. In terms of the federal districts,

Congressional District 14 encompasses areas within Broward and

A - 25

Palm Beach, and District 16 includes both Broward and Dade

Counties. The state court systems are also linked. The Fourth

Appellate District includes both Broward and Palm Beach. The

federal district of the Southern District of Florida includes all

three counties. This court’s district also includes other counties

both north of Palm Beach and south of Dade, but after

consideration of all the above factors, it is apparent that these

other counties do not share the integral connections that

Broward, Dade, and Palm Beach have. For example, the

counties of Highlands, Okeechobee, Indian River, St. Lucie, _

Martin would appear to be a separate community with only

significant ties to Palm Beach, not to Broward or Dade.

If the relevant community is Broward, Dade, and Palm

Beach counties, the next step is to determine the composition of

the citizens of this area. The court, as the finder of fact, must

rely upon its own personal knowledge as the parties failed to

present evidence on this point. In a word, this area is

remarkable for its diversity. The three counties are a mecca for

both the very young and the very old. Because of the beaches

A - 26

and the moderate year-round climate, this area includes young

persons establishing homes and older residents retiring to enjoy

life under the sun. There are both families and single

individuals residing the communities. Generally, the counties

are heterogeneous in terms of religion, class, race, and gender.

THE AVERAGE PERSON STANDARD

The next inquiry is more difficult because this court must

determine what are the standards for determining prurient

interest and patent offensiveness in Palm Beach, Dade, and

Broward Counties. The fact that the state legislature has

enacted laws prohibiting obscenity is certainly relevant and

entitled to great weight. The state’s anti-obscenity stance as a

whole, however, is over inclusive because other communities

outside the three counties are included in the majority who

passed the legislation.

In determining the views of the "average person" in this

area, the court has not focused only on the views of the most

tolerant or the most sensitive individuals. See Smith v. United

States, 431 U.S. at 304-05("the most prudish or the most

A - 27

tolerant" or "the reactions of a sensitive or of a callous

minority"). The "average person" does not necessarily represent

any one segment of the community. It is a legal concept

whereby a single perspective is derived from the aggregation or

average of everyone’s attitudes in the area including persons

with differing degrees of tolerance. See Pinkus v. United States,

436 U.S. 293,298-302(1978) (community under Miller is made up

of all adults in the area including the most sensitive). The court

has not considered minors in its considerations because there

was not sufficient evidence adduced at trial that the music was

targeted at such persons or that it actually reached children.

This court finds that the relevant community standard

reflects a more tolerant view of obscene speech than would

other communities within the state. This finding of fact is based

upon this court’s personal knowledge of the community. The

undersigned judge has resided in Broward County since 1958.

AS a practicing attorney, state prosecutor, state circuit judge,

and currently, a federal district judge, the undersigned has

traveled and worked in Dade, Broward, and Palm Beach. As a

A - 28

member of the community, he has personal knowledge of this

area’s demographics, culture, economics, and politics. He has

attended public functions and events in all three counties and is

aware of the community’s concerns as reported in the media and

by word of mouth. In almost fourteen years as a state circuit

judge, the undersigned gained personal knowledge of the nature

of obscenity in the community while viewing dozens, if not

hundreds of allegedly obscene films and other publications

seized by law enforcement.

The court does not adopt the plaintiffs’ position that

these three counties can be labeled as "tolerant" per se as

opposed to some degree thereof. Neither the trier of fact’s

personal knowledge nor the plaintiffs’ evidence supports such a

conclusion. The plaintiffs argue that the lack of written

complaints in the Nasty investigation file created by the Broward

Sheriff's office is evidence of a tolerant community standard.

While this fact is entitled to some weight, it is far from

significant. There may be many reasons why concerned citizens

have not complained. For example, the Nasty recording was not

A - 29

released until 1989 and it takes time for even a popular musical

release to reach the public consciousness. Although the Sheriff

has the duty to enforce the Obscenity laws regardless o1

community protest, Deputy Wichner’s explanation of why this

particular album was singled out can reasonably be linked to

significant community discontent, whether communicated by

telephone calls, anonymous messages, or letters to the police.

Furthermore, the vast majority of complaints in the file,

although not exclusively from Broward County, were residents

of the re‘evant community.

Further, the plaintiffs’ reliance upon the admission of

other sexually explicit works is also not entitled to great weight

in determining community standards. First, the Supreme Court

has recognized that this type of evidence does not even have to

be considered even if the comparable works have been found to

be nonobscene. See Hamling v. United States, 418 U.S. 87,126-

127(1974). In this case, there is no evidence that the

comparable materials are not themselves obscene. More

importantly, most of the materials are simply irrelevant. This

A - 30

case involves the alleged obscenity of a musical recording.

Evidence of depictions of sexual conduct in pictures, moving or

still, is not substantially equivalent to musical lyrics.

The most comparable works introduced are the sexually

explicit writings in the various books and magazines, the audio

tape entitled Raw by Eddie Murphy, and the double cassette

tape recording by Andrew Dice Clay. All three of these works

focus upon a verbal message analogous to the format in the

Nasty recording. The court does give these particular works

some weight.

The plaintiffs also raise several collateral arguments as

=| to why this court is allegedly unable to determine the

community standards. They claim that the defendant’s failure

to introduce evidence at the trial including expert testimony is

fatal. The plaintiffs also allege that this court’s opinion will only

reflect the personal opinion of the undersigned judge, not the

relevant community. They support this argument by pointing to

the court’s alleged refusal to empanel a jury in this case.

Dealing with the last contention first, the plaintiffs’

A - 31

argument on the lack of a jury is disingenuous. First, the

plaintiffs filed this action in federal court and only requested

equitable relief without any right to a trial by jury. Second,

there is no Constitutional right to trial by jury in obscenity cases.

See Alexander v. Virginia, 413 US. 836(1973). Finally, neither

party agreed to trial by jury. If both parties consent, Federal

Rule 39(c) allows a court to empanel a jury whose verdict would

have the same binding effect as if trial by jury was a matter of

right. The provision also allows for use of an advisory jury

whose verdict is not binding on the court. The defendant

Navarro only consented to an advisory jury. The plaintiffs

conditioned their consent to any form of a Jury upon the court’s

ruling on another motion before the court. In that motion, the

plaintiffs advanced the argument that this court should impose

a standard of proof more demanding than a preponderance of

the evidence upon the defendant on the obscenity issue. Such

a request was without merit. This is a civil, not a criminal case,

and hence does not require proof by clear and convincing

evidence or, proof beyond a reasonable doubt. The plaintiffs

A - 32

would agree to an advisory jury only if this court required a

standard of clear and convincing evidence. Even if the court

had used an advisory jury, the verdict of six other citizens on the

issue of community standards would have been of doubtful

value. The individuals would have only been Broward County

residents. Moreover, this court, as demonstrated, has sufficient

personal knowledge of the community and its standards to make

a decision in this case.

The plaintiffs’ claim that this court cannot decide this

case without expert testimony and the introduction of specific

evidence on community standards is also without merit. The law

does not require expert testimony in an obscenity case. The

defendant introduced the Nasty recording into evidence. As

noted by the Supreme Court in Paris Adult Theatre I, when the

material in question is not directed to a "bizarre, deviant group"

not within the experience of the average person, the best

evidence is the material, which "can and does speak for itself."

Paris Adult Theatre I, 413 U.S. at 56 & n.6.

In deciding this case, the court’s decision is not based

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upon the undersigned judge’s personal opinion as to the

obscenity of the work, but is an application of the law to the

facts based upon the trier of fact’s personal knowledge of

community standards. In other words, even if the undersigned

judge would not find As Nasty As They Wanna Be obscene, he

would be compelled to do so if the community’s standards so

required.

The true basis of the plaintiffs’ argument is that the legal

standard of the "community" and the “average person" are too

nebulous to apply to an issue of constitutional law. This

position ignores the fact that the law does not require absolute

certainty as to its determinations. The standard of proof is

adjusted upward or downward to reflect the balance between the

competing rights of individuals and society. In civil cases, the

law gives effect to a determination based on a preponderance of

the evidence. Even in criminal matters where a person can lose

his liberty, property, and even his life, there is no requirement

that the government prove guilt beyond all possible doubt. As

noted in Hamling v. United States, 418 U.S. 87,101(1974), "[I]t

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is common experience that different juries may reach different

results...This is one of the consequences we accept under our

jury system." The same holds true when the court is the finder

of fact in a bench trial. Application of the "community" and

"average person" standards are no different than that of applying

the standard of the "reasonable person" used in negligence and

tort law. See Pinkus v. United States, 436 U.S. 293,300-

01(1978); Smith, 431 U.S. at 308.

THE FIRST MILLER TEST: PRURIENT INTEREST

This court finds, as a matter of fact, that the recording

As Nasty As They Wanna Be appeals to the prurient interest.

The Supreme Court has defined prurient as "material having a

tendency to excite lustful thoughts." Roth, 354 U.S. at 487 n. 20.

Appeals only to "normal, healthy ‘sexual desires" are not

adequate to meet the test. Brockett v. Spokane Arcades, Inc.,

472 U.S. 491,498(1985). The material must exhibit a "shameful

or morbid interest in nudity, sex, or excretion". Id. (readopting

definition in Roth, 354 U.S. at 487 n. 20).

Nasty appeals to the prurient interest for several reasons.

A - 35

First, its lyrics and the titles of its songs are replete with

references to female and male genitalia, human sexual excretion,

oral-anal contact, fellatio, group sex, specific sexual positions,

sado-masochism, the turgid state of the male sexual organ,

masturbation, cunnilingus, sexual intercourse, and the sounds of

moaning. Florida’s Legislature has provided a valuable source

of evidence in the form of its obscenity Statutes for determining

what is sexual conduct. The initial provision is section

847.001(11), Florida Statutes, which defines "sexual conduct" to

include “actual or simulated sexual intercourse, deviate sexual

intercourse,...masturbation,...sadomasochistic abuse: [or] actual

lewd exhibition of the genitals".". Section 847.001(2), Florida

Statutes, defines deviate sexual intercourse as sexual conduct

between unmarried persons involving contact between the penis

and the anus, the mouth and the penis, or the mouth and the

vulva. Section 847.001(8) defines sadomasochistic abuse as

Satisfaction from sadistic violence derived by inflicting harm

upon another. These definitions cover most, if not all, of the

sexual acts depicted in As Nasty As They Wanna Be.

A - 36

Furthermore, the frequency and graphic description of

the sexual lyrics evinces a clear intention to lure hearers into |

. this activity. The depictions of ultimate sexual acts are so vivid

that they are hard to distinguish from seeing the same conduct

described in the words of a book, or in pictures in periodicals or

films.

It is also noteworthy that the material here is music. It

is true that it would be difficult, albeit not impossible, to find

that mere sound without lyrics is obscene. Music is sufficiently

subjective that reasonable persons could disagree as to its

meaning. But, the focus of the Nasty recording is its lyrics.

Based on the evidence at trial, music of the "rap" genre focuses

upon verbal messages accentuated by a strong beat. 2 Live

Crew itself testified that the Nasty recording was made to be

listened and danced to. The evident goal of this particular

recording is to reproduce the sexual act through musical lyrics.

It is an appeal directed to "dirty" thoughts and the ioins, not to

the intellect and the mind.

The court has also given some, but not great, weight to

acme iat iananenstatic amnaceiaiiaaiiaaiae iia

me i

A - 37

the plaintiffs’ commercial motive. Of course, the fact that the

plaintiffs made a profit from the public distribution of the Nasty

recording is not relevant in determining obscenity. Se

Ginzburg v. United States, 383 USS. 463,474(1966). However, .

the court can consider the manner in which the material was

distributed and promoted to determine if the "leer of the

sensualist" permeates the work. Id. at 465-66,468,475-76. In

Ginzburg, the court found that publishers of certain magazines

and books had directed their advertising in such a way as to

commercially exploit erotica solely for the sake of their prurient

appeal. Id. at 466. For example, the advertisements sent to

potential customers "stressed the sexual candor of the respective

publications, and openly boasted that the publishers would take

full advantage of what they regarded [as] an unrestricted license

allowed by law in the expression of sex and sexual matters." Id.

at 469. The Court went on to note that, "the deliberate

representation of petitioners’ publications as erotically arousing,

for example, stimulated the reader to accept them as prurient;

he looks for titillation, not for Saving intellectual content." Id.

at 470.

Consideration of the creator’s intent to appeal to the

prurient interest is still a valid consideration today, even after

Miller_v. California. See Splawn vy. California, 431 US.

595(1977); Pinkus, 436 U.S. 293(1978).

The record at trial indicates that the plaintiffs’

commercial exploitation of this work was done in a manner

calculated to make a salacious appeal. The title of the

recording, As Nasty As They Want To Be, in addition to the

names of many of the songs and the illustration on the

recordings’ insert certainly fit within the confines of the

Ginzburg case for materials "look[ing] for titillation."

One of the more interesting points suggested by the

evidence at trial, but not dwelt on by the defendant, was that 2

Live Crew made two apparently identical albums with the only

difference being the sexually explicit lyrics. The plaintiffs’ own

expert, John Leland, testified that the Nasty recording, without

the salacious lyrics, would not have been expected to sell more

than 500,000 copies nationwide. To date, the Nasty version has

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sold 1.7 million copies. The identical recording sans sexual

lyrics (Clean) has sold only 250,000 copies. The difference

between the actual sales of the two recordings can reasonably be

found to have been motivated by the "leer of the sensualist"

The plaintiffs cannot claim they needed the vulgar lyrics to

promote their message since the plaintiffs’ own experts testified

that music from neither the "rap" or "hip-hop" genre does not

require the use of such language.

Finally, the plaintiffs rely upon testimony, both lay and

expert, that the Nasty recording did not actually physically excite

anyone who heard it and indeed, caused boredom after repeated

play. However, based on the graphic deluge of sexual lyrics

about nudity and sexual conduct, this court has no difficulty in

finding that As Nasty As They Wanna Be appeals to a shameful

and morbid interest in sex.

THE SECOND MILLER TEST: PATENTLY OFFENSIVE

The court also finds that the second element of the

Miller test is satisfied in that the Nasty recording is patently

offensive. This is a question of fact, which must be measured by

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contemporary community standards. See Miller, 413 U.S. at 30.

It is quite true that not all speech with sex as its topic is

obscene. See Roth, 354 U.S. at 487. The As Nasty As They

Wanna Be recording is another matter.

The recording depicts sexual conduct in graphic detail.

The specificity of the descriptions makes the audio message

analogous to a camera with a zoom lens, focusing on the sights

and sounds of various ultimate sex acts. Furthermore, the

frequency of the sexual lyrics must also be considered. With the

exception of part B on Side 1, the entire Nasty recording is

replete with explicit sexual lyrics. This is not a case of subtle

references or nianala, nor is it just “one particular scurrilous

epithet" as in Cohen v. California, 403 U.S. 15,22(1971).

As already noted, Florida’s Legislature has defined

obscene acts to include sadomasochistic sexual conduct, oral sex,

and anal inbetcnenna. See FLA. STAT. ANN. §§847.001(2),

001(8)(Supp. 1990). In addition, Florida’s obscenity statutes are

intended to have the broadest, constitutional scope. See FLA.

STAT. -ANN. §847.001(7)(Supp. 1990). States may outlaw

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certain portrayals of sexual conduct and nudity if they constitute

"hardcore pornography." See Jenkins v. Georgia, 417 U.S.

153(1974). In Jenkins, the Supreme Court reversed a conviction

for distribution of the film "Carnal Knowledge" which contained

scenes of a woman with a bare midriff and several lovemaking

sessions. Id. at 161. This depiction was held by the Court to

not be within the hardcore category. As noted by the Court:

While the subject matter of the picture

is, in a broader sense, sex, and there are scenes

in which sexual conduct including “ultimate

Sexual acts" is to be understood to be taking

place, the camera does not focus on the bodies

of the actors at such times. There is no

exhibition whatever of the actors’ genitals, lewd

or otherwise, during these scenes. They are

occasional scenes of nudity, but nudity alone is

not enough to make material legally obscene

under the Miller standards. Id. at 161.

In Miller, the Supreme Court gave two examples of the

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type of conduct subject to state regulation: "(a) Patently

offensive representations or descriptions of ultimate sexual acts,

normal or perverted, actual or simulated. (b) Patently offensive

representation or descriptions of masturbation, excretory

functions, and lewd exhibition of the genitals." Id., 413 USS. at

25. The conduct described in the Nasty recording is certainly

within the scope of the Florida statutes. The state law, of

course, is not dispositive on the question of whether this

particular community would be patently offended, but it is

entitled to significant weight. Smith, 431 U.S. at 307-08.

While the above facts are sufficient to support a finding

that this material is patently offensive, there are additional

considerations that support such a finding. First, the Nasty lyrics

contain what are commonly known as “dirty words" and

depictions of female abuse and violence. It is likely that these

offensive descriptions would not of themselves be sufficient to

find the recording obscene. See, e.g., American Booksellers

Association, Inc. v. Hudnut, 771 F.2d 323 (7th Cir. 1985) (sexual

subordination of women); New Jersey v. Rosenfeld, 62 N.J. 594;

a ee)

PO ee ee ee ee ee

lel ila it ee

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303 A.2d 889 (Sup. Ct. 1973) (after remand for consideration by

U.S. Supreme Court in light of Cohen vy. California, state court

acknowledged that the use of public profanity, if not rising to

the level of fighting words, was constitutionally protected).

When these terms are used with explicit sexual descriptions,

however, they may be considered on the issue of patent

offensiveness. Secondly, the material here is music which can

certainly be more intrusive to the unwilling listener than other

forms of communication. Unlike a video tape, a book, or a

periodical, music must be played to be experienced. A person

can sit in public and look at an obscene magazine without

unduly intruding upon another’s privacy; but, even according to

the plaintiffs’ testimony, music is made to be played and listened

to. A person laying on a public beach, sitting in a public park,

walking down the street, or sitting in his automobile waiting for

the light to change is, in a sense, a captive audience. While the

law does require citizens to avert their ears when speech is

merely offensive, they do not have an obligation to buy and use

ear plugs in public if the state legislature has chosen to protect

them from obscenity.

Finally, in determining whether the Nasty recording is

patently offensive, it is again proper to consider the plaintiffs’

commercial exploitation of sex to promote sales. As noted by

the Supreme Court in Ginzburg v. United States, 383 U.S.

463,470(1966), representations of a publication as erotically

arousing "would tend to force public confrontation with the

potentially offensive aspects of the work; the brazenness of such

as appeal heightens the offensiveness of the publications to

those who are offended by such material." Such is the case

here, as already discussed. Again, while this factor has not been

given great weight, it is entitled to consideration.

THE THIRD MILLER TEST: SOCIAL VALUE

The final factor under Miller is whether the Nasty

recording, taken as a whole, lacks serious literary, artistic,

political, or scientific value. This factor is not measured by

community standards. The proper inquiry is whether a

reasonable person would find serious social value in the material

at issue. See Pope v. Illinois; US. , 107 S.Ct. 1918,

;

A - 45

1921(1987). The plaintiffs correctly note that the value of a

work can pass muster under Miller if it has serious merit,

measured objectively, even if a majority of the community would

not agree.

As a preliminary matter, it is again important to note

what this case is not about. Neither the "Rap" or "Hip-Hop"

musical genres are on trial. The narrow issue before this court

is whether the recording entitled As Nasty As They Wanna Be

is legally obscene.

This is also not a case about whether the group 2 Live

Crew or any of its other music is obscene. The third element of

the Miller test focuses upon the social value of the particular

work, not its creators. The fact that individuals of whom we

approve hold objectionable ideas or that people of whom we do

not approve hold worthy ideas does not affect judicial review of

the value of the ideas themselves.

The Phillistines are not always wrong, nor are the

guardians of the First Amendment always right.

This court must examine the Nasty recording for its

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content; the inquiry is objective, not as hominem.

Finally, this court’s role is not to serve as a censor or an

art and music critic. If the Nasty recording has serious literary,

artistic, political, or scientific value, it is irrelevant that the work

is not stylish, tasteful, or even popular.

The plaintiffs themselves testified that neither their

music nor their lyrics were created to convey a political message.

The only witness testifying at trial that there was political

content in the Nasty recording was Carlton Long, who was

qualified as an expert on the culture of black Americans. This

witness first stated that the recording was political because the

2 Live Crew, as a group of black Americans, used this medium

to express themselves. While it is doubtless true that Nasty is

a product of the group’s background, including their heritage as

black Americans, this fact does not convert whatever they say,

Or sing, into political speech. Professor Long also testified that

the following passages from the recording contained political

content: a four sentence phrase in the song “Dirty Nursery

Rhymes" about Abraham Lincoln, the word "man" in the

————————

A - 47

Georgie Porgie portion of the same song, and the use of the

device of "boasting" to stress one’s manhood.. Even giving these

isolated lyrics the meaning attributed by the expert, they are not

sufficient in number or significance to give the Nasty recording,

as a whole, any serious political value.

In terms of science, Professor Long also suggested that

there is cultural content in 2 Live Crew’s recording which rises

to the level of serious sociological value. According to this

witness, white Americans "hear" the Nasty recording in a

different way than black Americans because of their different

frames of references. Long identifies three cultural devices

evident in the work here: "call and response", "doing the

dozens", and "boasting". The court finds none of these

arguments persuasive.

The only examples of “call and response" in the Nasty

recording are portions where males and females yell, in

repetitive verse, "Tastes Great--Less Filling" and, in another

song, assail campus Greek-letter group. The phrases alone have

no significant artistic merit nor are they examples of black

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American culture. In the case of "Tastes Great--Less Filling",

this is merely a phrase lifted from a beer commercial.

The device of "doing the dozens" is a word game

composed of a series of insults escalating in their satirical

content. The "boasting" device is a way for persons to overstate

their virtues such as sexual prowess.

While this court does not doubt that both "boasting" and

"doing the dozens" are found in the culture of black Americans,

these devices are also found in other cultures. "Doing the

dozens" is commonly seen in adolescents, especially boys, of all

races. "Boasting" seems to be part of the universal human

condition.

Professor Long also cited to several different examples

of literary devices such as rhyme and allusion which appear in

Nasty, and points to the song title "Dick Almighty" as an

example of the literary device of personification. This, of

course, is nonsense regardless of the expert’s credentials. "A

quotation from Voltaire in the fly leaf of a book", noted the

Supreme Court in Miller, "will not constitutionally redeem an

erred

A - 49

otherwise obscene publication." 413 U.S. at 25 n.7(quoting Kois

vy. Wisconsin, 408 U.S. 229,231(1972)).

Prior to Miller, the government had to demonstrate that

a work was utterly without redeeming social value to be judged

obscene. See Memoirs, 383 U.S. at 419. The present test is less

stringent, only requiring proof of an absence of serious social

worth. This site to the plaintiffs’s strongest argument: that

the Nasty recording has serious artistic value. This category of

social worth is broad enough to include the value contributed by

the political, literary, and cultural aspects of the particular work.

The plaintiffs stress that the Nasty recording has value

as comedy and satire. Certainly, people can and do laugh at

obscenity. The plaintiffs point to the audience reaction at trial

when the subject recording was played in open court. The

audience giggled initially, but the court observed that after the

initial titillation, it fell silent.

In a society where obscenity is forbidden, it is human

nature to want to taste forbidden fruit. It is quite another thing

to say that this aspect of humanity forms the basis for finding

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that Nasty has serious artistic value. Furthermore, laughter can

express much more than enjoyment and entertainment. It is

also a means of hiding embarrassment, concealing shame, and

releasing tension. The fact that laughter was only heard at the

time that the first song of the tape was played is probative on

what the audience’s outbursts really meant. It cannot be

reasonably argued that the violence, perversion, abuse of

women, graphic depictions of all forms of sexual conduct, and

microscopic descriptions of human genitalia contained on this

recording are comedic art.

The Nasty recording is not comedy, but is first and

foremost, music. Initially, it would appear very difficult to find

a musical work obscene. As noted by the American Civil

Liberties Union, the meaning of music is subjective and subject

only to the limits of the listener’s imagination. See ACLU Brief

at 3.

Music nevertheless is not exempt from a state’s obscenity

statutes. Musical works are obscene if they meet the Miller test.

Certainly it would be possible to compose an obscene oratory or

A- 51

opera and it has probably been done.

The plaintiffs claim that this case is novel since it seeks

to determine whether music can be obscene. The particular

work here, although belonging to the general category of music,

however, is to be distinguished from a purely instrumental work,

or other more common recordings with a fairly equal emphasis

on music and lyrics. The focus of the Nasty recording is

predominately on the lyrics. Expert testimony at trial indicates

that a central characteristic of "rap" music is its emphasis on the

verbal message. Rhythm is stressed over melody, not for its own

sake, but to accentuate the words of the song. The pounding

beat and the presence of near continuous lyrics support this

conclusion. 2 Live Crew’s music is explicitly clear as to its

message. Although music and lyrics must be considered jointly,

it does not significantly alter the message of the Nasty recording

to reduce it to a written transcription. The Supreme Court’s

decision in Kaplan _v. California, 413 US. 115(1973), is

applicable here. The Court held that an expression by words

alone, albeit in a written form, can be legally obscene even if

A - 52

there are no accompanying pictorial depictions. Id. at 118-119.

The case at bar is an extension of the law to the extent that

words, as lyrics in music, can be obscene.

The key to judging the Nasty recording is to consider it

as a whole. 2 Live Crew has "borrowed" components called

"riffs" from other artists. Taking the work in its entirety, the

several riffs do not lift Nasty to the level of a serious artistic

work. Once the riffs are removed, all that remains is the rhythm

and the explicit sexual lyrics which are utterly without any

redeeming social value.

Obscenity is not a required element for socially valuable

"rap" or "hip-hop" music. 2 Live Crew itself proved this point by

the creation of its Clean recording.

The court is reminded of a story by Charles Baudelaire,

a poet who also had problems with the civil authorities of his

day. In My Heart Laid Bare (Vanguard Press 1951), at pages

203-04, he writes:

All the imbeciles of the Bourgeoisie who

intentionall use the words, "immoral",

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"immorality", "morality in art" and other such

stupid expressions remind me of Louise Villdieu,

a five-franc whore who once went with me to the

Louvre. She has never been there before, and

began to blush and cover her fact with her

hands, repeatedly plucking at my sleeve and

asking me, as we stood before deathless statutes

and pictures, how such indecencies could be

flaunted in public.

One of the plaintiffs’ expert witnesses testified at trial

that material is art if it causes a reaction in the audience

perceiving it. If that reaction is an appeal to the prurient

interest in a patently offensive way, and if the material lacks

serious literary, artistic, political or scientific, the law does not

call that art--it calls it obscenity and when so proven beyond a

reasonable doubt is a crime in Florida.

OBSCENITY? YES!

The recording As Nasty As They Wanna Be, taken as a

whole, is legally obscene.

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The court so finds by a preponderance of the evidence

although the standard of proof presents no real issue.

The court also finds As Nasty As They Wanna Be to be

legally obscene under the Miller test by clear and convincing

evidence, which standard the plaintiffs maintain is the correct

burden of proof.

PRIOR RESTRAINT AND PROCEDURAL DUE PROCESS

A prior restraint can be gencrally defined as any

condition imposed by the government on the publication of

speech. See, e.g., Times Film Corp. v. City of Chicago, 365 U.S.

43,55 n.2(1961)(Warren, C.J., dissenting). Such a limitation can

come in varying forms including permit requirements, licensing

taxes, registration, prepublication submission of materials,

seizures, and judicial injunctions. The distinguishing

characteristic of a prior restraint is that the condition vests

power in a nonjudicial official to make the final decision as to

whether speech will be permitted at all or in what form. See

e.g., Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546,556-

57(1975); Freedman v. Maryland, 380 U.S. 51,58(1965).

a eceeeeeeienmnaieel

A - 55

Prior restraints are repugnant to the right of free speech.

The First Amendment prohibits this type of regulation to-

minimize. the risk of governmental censorship. Many forms of

speech are of value because of the urgency and immediacy of

the idea expressed. Even if a censor ultimately allows

publication, significant delay in the decision making process can

destroy the fleeting value of the speech. See, e.g., Southeastern

Promotions, 420 U.S. at 562(use of a theater). If speech is

delayed or denied, the rights of both the speaker and his

audience are impaired and society is the ultimate "loser." See

Dombrowski v. Pfister, 380 U.S. 479,486(1965); also see Marcus

v. Search Warrants of Property, 367 U.S. 717,736(1961);

Quantity of Copies of Books v. Kansas, 378 U.S. 206,214(1964).

Furthermore, if allowed, prior restraints necessarily legitimatize

the existence of a censor. The danger is that officials, even if

originally well-intentioned, may be driven to suppress an ever

growing amount of speech.

For all of these reasons, the First Amendment casts a

jaundiced eye on any form of prior restraint. But, as with the

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right of free speech itself, this prohibition is not absolute. A

limitation on speech prior to its publication may withstand

constitutional scrutiny in "exceptional cases." Near v. Minnesota,

283 U.S. 697,715-16(1931); also see Southeastern Promotions,

420 U.S. at 559. Included within this category are all types of

speech unprotected by the Constitution such as obscenity. Near,

283 US. at 716.

The fact that the government may prevent obscene

materials from ever reaching their intended audience assumes

that the issue of obscenity has already been decided. It is the

courts and not nonjudicial officials who must decide whether a

specific work is obscene. See United States v. Thirty-Seven

Photographs, 402 U.S. 363,370-71(1971). Interpreting obscenity

laws requires “appraisal of facts, the exercise of judgment, and

the formation of an opinion"; in other words, the exercise of

judicial power. See Southeastern Promotions, 420 U.S. at 554-

SS(citation omitted); Staub v. Baxley, 355 US.

313,323(1958)(same); also_see Thirty-Seven Photographs, 402

U.S. at 370-71("determinations of obscenity should be left to

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courts and juries."). Because the line between free speech and

obscenity is so subtle, the law imposes a presumption that all

utterances are constitutionally protected until there is a judicial

decision to the contrary. See, e.g., Fort Wayne Books, Inc. v.

Indiana, US.__, 109 S.Ct. 916,927(1989); Heller v. New

York, 413 U.S. 483,491(1973).

Because of this presumption, the state must follow

constitutionally mandated procedures in seizing obscene works.

The state may criminalize obscenity, but its regulation must

comport with the minimum procedural safeguards required by

due process. To trigger the Fourteenth Amendment’s

application, the state regulation must constitute a deprivation of

a protected interest. Florida law provides that no property

interest exists in obscene materials. See FLA. STAT. ANN.

§847.011(7)(Supp. 1990). In essence, this state has made

obscenity a form of contraband, the seizure of which would not

normally implicate the Fourteenth Amendment. However,

because free speech has an independent source of protection

under the First Amendment as a constitutional “liberty”,

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arguably obscene articles are not treated by the law like other

contraband such as illegal drugs. See Lo-Ji Sales, Inc. v. New

York, 442 U.S. 319,326 n.5(1979); Roaden v. Kentucky, 413 U.S.

496,501-03(1973); Quantityet Books, 378 U.S. at 211-12; Marcus

v. Search Warrants of Property, 367 U.S. 717, 730-31(1961);

Penthouse International, Ltd. v. McAuliffe, 610 F.2d

1353,1359(Sth Cir. 1980)("There must be some _ judicial

determination of obscenity before a seizure or “constructive -

seizure" may occur.")(citation omitted). Although it has been

assumed to this point, music is clearly a form of expression

within the scope of the free speech guaranty and thereby

entitled to the presumption of constitutionality as a form of

"liberty" protected under the Fourteenth Amendment. Cf.

Southeastern Promotions, 420 U.S. at 557-58(theater is form of

speech); Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,501-

02(1952)(motion picture film is form of speech).

NASTY SUPPRESSION

The remaining issues are whether the defendant’s actions

in this case constituted a Fourteenth Amendment deprivation

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and prior restraint and, if so, whether the accompanying

procedures were adequate to comport with due process and the

First Amendment.

Deputy Wichner’s initial purchase of Nasty at Sound

Warehouse was neither a prior restraint nor a constitutional

deprivation. See Maryland vy. Macon, 472 USS. 463(1985).

Moreover, his impulse to seek judicial guidance was equally

proper. Prior to any seizure of arguably obscene materials,

there must be a minimum of an ex parte hearing before a

judicial officer to determine if probable cause exists. See

Marcus, 367 U.S. 717(1961); Roaden, 413 U.S. at 504 nS.

Judge Grossman’s review of the probable cause

application was also the type of "searching inquiry" demanded

by the Constitution prior to a seizure. See Marcus, 367 U.S. at

732. He reviewed the Nasty recording "in its entirety" and had

the transcript of six of the songs to review. His decision took

several days and he requested additional information from the

deputy about the location and accessibility of the purchased

tape. This is not a case where the probable cause finding was

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based solely upon a policeman’s subjective conclusion that Nasty

was obscene. See Lee Art Theatre, Inc. v. Virginia, 392 U.S.

636( 1968).

It is at this point that the facts of this case become

unusual or, in the prior words of this court, "bizarre." The state

court judge issued an order finding probable cause that Nasty

was obscene. Why this order was entered is unclear. There is

no statutory or common law basis for such a procedure. There

was no case or controversy before that court as the only party

was Deputy Wichner. Nor did Wichner seek an injunctive

remedy, or a warrant to search for or to seize suspected obscene

materials. What he apparently sought was a legal opinion, and

in this he was successful. This is unusual since the giving of

legal advice is normally the function of lawyers--not judges.

Noretheless, the order of probable cause issued. The

Broward County Sheriffs office then copied and distributed

Judge Grossman’s order to the retail music stores in the county

which were selling Nasty. The result was predictable. The store

managers, as law abiding citizens pulled the recording from their

; A - 61

shelves. Individuals confronted with the threat of arrest by law

enforcement officers and presented with a court’s order can be

expected to do as they are told. Courts declare the law through

their orders and all citizens are conscious of our duty to obey

the law.

Despite his arguments to the contrary, the Sheriff's

actions in this case constituted a seizure of presumptively

protected speech within the scope of the First and Fourteenth

{ Amendments.

The First Amendment rights of 2 Live Crew and the

music store owners to publish the recording and the public’s

rights as an audience were all infringed. Even though the

defendant is correct that there was no physical transfer of

possession of the Nasty inventories, the notion of a seizure for

prior restraint purposes encompasses the conduct here.

Whether the seizure is called "constructive" or "actual", there

was a direct relationship between the sheriffs’ visits and the

Surrounding publicity on the one hand, and the store operators’

decision to remove Nasty from their shelves on the other. |

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The "common thread" of the law is that when an

arguably protected work clothed in the presumption of

constitutional free speech is removed from public distribution,

the state has imposed a prior restraint. See Roaden, 413 U.S.

at 504-05(1973); Cf. Mishkin v. New York, 383 USS.

502,513(1966)(Court refused to reach issue of seizure’s legality

because record inadequate on the quantity of books seized and

whether they were "on the threshold of dissemination.").

The final decision of whether As Nasty As They Wanna

Be should be published was left in the nonjudicial hands of the

Broward County Sheriff's office. See Southeastern Promotions,

420 U.S. at 556-57("denying use of the municipal

facility...constituted the prior restraint. That restraint was :inal.

It was no mere-temporary bar while necessary judicial

proceedings were under way."). Although the music store

Operators were the immediate parties who stopped distributing

the recording, they so acted only after the police visits and the

delivery of the court’s probable cause order. Had the deputies

only given advice to aid compliance with the law (without also

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threatening arrest while presenting a judicial order of probable

cause) and had the store operators decided to accept the advice

and remove the recording from their inventory, this would be a

different case. As noted in Fort Wayne Books, Inc. v. Sullivan,

109 S.Ct. 916(1963), "The mere assertion of some possible self-

censorship...is not enough to render an anti-obscenity law

unconstitutional." Id. at 926. Indeed, law enforcement officers

also have a right of free speech, which citizens are at liberty to

disagree with if they believe the police have misstated the law.

Justice John Harlan stated in Bantam Books, Inc. v. Sullivan,

that "Bearing the discomfiture and cost’ even of ’a prosecution

for crime [though] by an innocent person is one of the painful

obligations of citizenship." 372 U.S. at 82(dissenting

opinion)(citation omitted).

The argument that no other musical works were banned

and that the sheriffs’ visits did not otherwise disrupt business in

the stores is of no consequence. The material issue in this case

is that there was a county wide seizure of As Nasty As They

Wanna Be. Every single copy of this recording was removed

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from the shelves of approximately forty stores. Because of the

vulnerability of First Amendment rights, the seizure of even a

single copy of one work is constitutionally significant. See

Heller v. New York, 413 U.S. 483(1973)(if seizure of a single

work prior to trial will deprive the public of the sole copy, the

police must make and return a copy for pretrial publication or

return the original).

The facts here are also materially similar to the

situations presented by the cases of Bantam Books, Inc. v.

Sullivan, 372 U.S. 58(1963), Penthouse International, Ltd. v.

McAuliffe, 610 F. 2d 1354(Sth Cir. 1980), and Council for

Periodical Distributors Association _v. Evans, 643 F.Supp.

552(M.D.Ala. 1986), aff'd, 827 F2d 1483(11th Cir. 1987). In

each case the courts found that the conduct of the governmental

officials constituted an unconstitutional prior restraint.

In Bantam Books, an administrative commission created

under state law was given authority to review books and

magazines. The commission circulated blacklists of publications

believed by them to be objectionable for sale to minors. The

, |

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he ete ret.

A - 605

lists were sent on official stationery with a reminder that the

commission had a legal duty to recommend prosecutions for

obscenity law violations to the state Attorney General. Upon

receiving the notices, publishers stopped selling the listed items.

Police officers conducted follow-up visits to oversee compliance.

372 U.S. at 61-63. The Supreme court finding this process to be

a prior restraint, said:

People do not lightly disregard public officers’

thinly veiled threats to institute criminal

proceedings against them if they do not come

around...The commission’s notices phrased

virtually as orders, reasonably understood to be

such by the distributor, invariably followed up by

police visitations, in fact stopped the circulation

of the listed publications...It would be naive to

credit the State’s assertion that these blacklists

are in the nature of mere legal advice, when they

plainly serve as instruments of regulation

independent of the laws against obscenity. Id at

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68-69(emphasis added) (footnote omitted).

The same result was reached in this Circuit. In the

Penthouse case, Georgia’s Solicitor General used a scheme of

media announcements, visits to retailers, and warrantless arrests

to ban the sale of sexual publications without instituting judicial

proceedings for a final determination of the issue of obscenity.

610 F.2d at 1355-58. In Evans, a county district attorney

pursued a two-tiered approach. To persuade a distributor to

stop selling objectionable works, the attorney warned that

further sales would result in the institution of criminal and

nuisance proceedings. The distributor withdrew his prior

opposition to the district attorney’s demands and signed a

consent decree banning all future sales of the listed items. On

the retail level, the district attorney informed all store owners

that they should attend a meeting at the county courthouse. He

“strongly suggested” that all sales of specified publications should

stop or he would begin arrests. 642 F.Supp. at 554-57.

The defendant attempts to distinguish Bantam Books,

Penthouse, and Evans by arguing that in those three cases there

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was a lack of judicial involvement unlike the probable cause

order here. Further, Navarro argues that those visits were made

for the stated purpose of intimidating distributors to stop selling

objectionable works whereas the efforts of his deputies were all

in good faith. The first alleged distinction is unpersuasive

because, as already discussed, the order of probable cause was

of no legal effect. Further, by publicizing the order, the sheriffs’

office gave an apparent, albeit misleading, judicial endorsement

to their threats of arrest. Further, as also noted previously, the

good faith of the deputies is not controlling if the effect of their

actions was to impose a prior restraint on presumptively

protected speech.

THE LACK OF SENSITIVE TOOLS

Because obscenity is an appropriate subject for state

regulation, there is no absolute right to be free from all prior

restraints. Near, 283 U.S. at 716. To determine whether the

Nasty ban was an impermissible prior restraint or merely a valid

regulation of unprotected obscenity depends on the facts of the

case. See Kingsley Books, Inc. v. Brown, 354 USS. 436,441-

42(1957).

The standard is whether the procedures required by the

State are sufficient to guarantee a speedy and correct

determination of a work’s obscenity; and whether the safeguards

are sufficient to reasonably minimize the risk that nonobscene

speech will be suppressed. The Supreme Court observed the

need for procedural safeguards in Marcus v. Search Warrants of

Property, 367 U.S. 717(1961): "[t]he line between speech

unconditionally guaranteed and speech which may legitimately

be regulated, suppressed, or punished is finely drawn...The

separation of legitimate from illegitimate speech calls for

...Sensitive tools." Id. at 731(citation omitted). As further noted

by the Court in Bantam Books, Inc. v. Sullivan, 372 U‘S.

58(1963): Z

[T]he Fourteenth Amendment requires that

regulation by the States of obscenity conform to

procedures that will ensure against the

curtailment of constitutionally protected

expression, which is often separated from

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obscenity only by a dim and uncertain line. It is

characteristic of the freedoms of expression in

general that they are vulnerable to gravely

damaging yet barely visible encroachments. Our

insistence that regulations of obscenity

scrupulously embody the most rigorous

procedural safeguards...is therefore but a special

instance of the larger principle that the freedoms

Of expression must be ringed about with

adequate bulwarks. Id. at 66.

The only procedural protections accompanying the ban

of As Nasty As They Wanna Be were an €X parte application to

a state judge for an order of probable cause and the fact of the

order itself finding that there was probable cause to hetions

Nasty was obscene. |

These two procedures were clearly insufficient to meet

the minimum requirements of due process. The result was that

Nasty was subjected to an unconstitutional prior restraint and

the plaintiffs’ rights to publish presumptively protected speech

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were left twisting in the chilling wind of censorship.

The Supreme Court’s decision in Freedman v. Maryland,

380 U.S. 51(1965), reaffirmed the minimum procedural

safeguards necessary for a prior restraint to pass due process

scrutiny. Also see Southeastern Promotions, 420 U.S. at 559-60;

Universal Amusement Co., Inc. v. Vance, 445 USS.

308,317(1980) (Freedman applies to judicial orders which

impose prior restraint). There are three basic requirements:

First, the burden of instituting judicial

proceedings, and of proving that the material is

unprotected, must rest on the censor. Second,

any restraint prior to judicial review can be

imposed only for a specified brief period and

only for the purpose of preserving the status

quo. Third, a prompt final judicial

determination must be assured. Southeastern

Promotions, 420 U.S. at 560 (emphasis in

original).

By pretrial motion, the defendant accepted the burden of

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proving that Nasty was unprotected speech because it is obscene,

As to all the other Freedman safeguards, however, the

defendant’s conduct fell woefully short of legal and

constitutional requirements.

First, the Sheriff did not institute judicial proceedings

after threatening the music store operators and distributing

Judge Grossman’s order. The visits occurred on or about March

9, 1990. It was not until March 27, 1999, eighteen days later

that the defendant finally filed an action in state court.

The defendant noted at the preliminary injunction

hearing (April 19, 1990) and at trial (May 14 and 15, 1990) that

he was preparing guidelines for the future application of this

enforcement technique which would assure that judicial

proceedings are promptly initiated. Even after trial, however,

there is still no evidence that such rules have been developed

and implemented. This is simply intolerable; nor would such

future guidelines have any relevance to the Sheriff's conduct in

this case.

The defendant’s action in this case suffers from the same

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constitutional infirmity as seen in Blount v. Rizzi, 400 U.S.

410(1971): total discretion in a nonjudicial officer to initiate

judicial proceedings after a final decision suppressing arguably

obscene materials. In Blount, the Postmaster General could

intercept suspected obscene mail and hold it for an indefinite

time period without any mandatory requirement that he invoke

judicial review. Here, the first application for judicial review

occurred when the plaintiffs--not the Sheriff--filed this lawsuit.

It is well-established that prior restraints vesting

unbridled discretion in nonjudicial officials, thereby making their

suppression decision final, in effect, are constitutionally

unacceptable. See, e.g., Shuttlesworth v. City of Birmingham,

394 U.S. 147,151,1534(1969); Staub v. City of Baxley, 355 U.S.

313(1958); Kunz v. New York, 340 U.S. 290(1951).

Why the defendant chose to pursue this type of prior

restraint is not clear. Had the Sheriffs office initiated a

criminal prosecution, the Freedman problems might not have

arisen because of the rigorous procedures inherent in criminal

proceedings. See Times Film Corp. v. City of Chicago, 365 U.S.

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43,82-84(1961) (Douglas, J., dissenting). Further, Florida’s

Legislature has provided a civil remedy in the form of an

injunction. See FLA. STAT. ANN. §847.011(8)(Supp. 1990).

Because this statute tracks the procedures found constitutionally

sufficient in Kingsley Books, Inc. v. Brown, 354 US. 437(1957),

there would have been no constitutional objection. It is not the

duty of this court to dictate to state officials which means are

most appropriate to regulate obscenity. See Freedman, 380 U.S.

at 60; Kingsley, 354 U.S. at 441. But, this court must intervene

when that choice impermissibly infringes upon the First

Amendment.

Second, the prior restraint imposed on Nasty was not

limited "for only a specified brief period" or restricted to "the

purpose of preserving the status quo." Rather, the ban initiated

by the visits and the presentation of the probable cause order

when combined with the threat of future prosecution was

designed to indefinitely suppress the recording. Indeed, Deputy

Wichner testified that the Sheriff's office had no plans for future

action because there were no further citizen complaints or

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evidence of sales in the county.

This case is distinguishable from Heller v. New_York,

413 U.S. 483(1973). There, the issue was whether a judge who

views a film and finds it obscene can then issue a

constitutionally valid warrant for the film’s seizure as evidence

for trial. The Court held that the seizure of one copy for the

bona fide purpose of preserving it as evidence was

constitutionally permissible. However, the Court also noted that

its holding was limited to cases where there was more than one

copy of the film. If there was only a single copy, the

government must preserve the status quo by allowing a copy to

be made or the original must be returned to allow pretrial

publication. Id., 413 U.S. at 492-93. The status quo for

presuniptively protected speech is that it remains available to

the public. Where the government seizes more than a single

copy for evidentiary purposes, however, the constitutional risks

are much greater. As noted in Heller, "seizing films to destroy

them or to block their distribution or exhibition is a very

different matter from seizing a single copy of a film for the bona

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fide purpose of preserving it for evidence in a criminal

proceeding." Id. at 492(emphasis added). The same judicial

condemnation of facts materially similar to this case was made

in Penthouse International, Ltd. v. McAuliffe, 610 F.2d 1354(Sth

Cir. 1980):

[T]he procedure adopted and enforced

by McAuliffe was much more dramatic and

devastating than the mere seizure of one film to

be used as evidence. Instead, it resulted in the

"constructive seizure" of every Magazine in

Fulton County, Georgia, that McAuliffe deemed

to be obscene. Id. at 1362.

Indeed, the facts of this case demonstrate just how

dramatically informal censorship can impair the First

Amendment. With relative ease, every copy of Nasty in

Broward County was suppressed within days of the deputies’

action. The music store operators understandably chose to obey

the law as stated in the probable cause order thereby avoiding

possible arrest. They also had a strong economic incentive to

ieee,

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remove this single recording from their shelves rather than risk

the expense of possible litigation. See Freedman, 380 U.S. at

59-60; Manual Enterprises, Inc. v. Day, 370 U.S. 478,493(1962).

The defendant claims that the initiation of formal

proceedings would have been overaggressive. But, as the

Supreme Court has taught, the harm from informal censorship

raises grave concerns:

The Commission’s operation is a form of

effective state regulation superimposed upon the

State’s criminal regulation of obscenity and

making such regulation largely unnecessary. In

thus obviating the need to employ criminal

sanctions, the State has at the same time

eliminated the safeguards of the criminal

process. Criminal sanctions may be applied only

after a determination of obscenity has been

made in a criminal trial hedged about with

procedural safeguards of the criminal process.

The Commission’s practice is in striking contrast,

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in that it provides no safeguards whatever

against the suppression of nonobscene, and

therefore constitutionally protected, matter. It

is a form of regulation that creates hazards to

protected freedoms markedly greater than those

that attend reliance upon the criminal law.

Bantam Books, 372 U.S. at 69-70.

The final Freedman violation is the defendant’s lack of

assurance of a prompt final judicial determination. The

defendant relies upon the existence of the in rem action filed in

the state circuit court on March 27, 1990. There is no evidence

that any decision has been reached in that case or that a trial

date has even been set as of the date of this order. Further, the

defendant’s decision to initiate judicial proceedings and the

timing thereof are completely discretionary with no reasonable

guarantee that a prompt decision will be made.

The defendant relies upon the filing date of the state

Suit to satisfy the dictates of Freedman y. Maryland. Because

this action was commenced eighteen days after the Nasty

niet

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seizures, reasons Navarro, this civil suit provided the necessary

procedural safeguards. Because this position is not legally valid,

this court need not reach the issue of whether this eighteen day

period would comply with procedural due process.

The Freedman decision requires that there be a prompt

and final judicial decision. This includes not only the time from

seizure to filing, but also considers the delay between

commencement of the lawsuit and a full adversary hearing; and

the time after the trial until the court enters a final order on the

issue Of obscenity. Unreasonable delay or the lack of assurance

at any step is fatal to the constitutional adequacy of the state

regulation. See e.g., Teitel Films Corp. v. Cusack, 390 U.S.

139(1968)(procedure deficient where no time limit in which

judge must issue final order after trial). In this case, there were

no assurances at any stage in the proceedings.

Moreover, due process requires more than an assurance

of a prompt judicial decision. When the government intends to

seize large quantities of presumptively protected materials, the

First and Fourteenth Amendments require an adversary hearing

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before any seizures are made. See Fort Wayne Books, 109 S.Ct.

at 929; Quantity of Books, 378 U.S. at 210-11; Marcus, 367 U.S.

at 735-36, Evans, 642 F.Supp. 552(M.D.Ala. 1986), aff'd, 827

F.2d 1483(11th Cir. 1987). The Supreme Court has clearly held

that in the case of massive seizures such as here, mere ex parte

determinations of probable cause are simply impermissible

under the U.S. Constitution. See Fort Wayne Books, 109 S.Ct.

at 929; Blount, 400 U.S. at 420.

Therefore, this court finds the defendant’s prior restraint

in this case violated the plaintiffs’ rights under the First and

Fourteenth Amendments. Permanent injunctive relief is

necessary to prevent future infringements. This court is well

aware of the serious implications of interfering with integral

State functions such as law enforcement. However, when the

Constitutional liberties which we all hold sacred are threatened,

this court has both the power and the duty to intervene. See Ex

Parte Young, 209 U.S. 123(1908); Edelman v. Jordan, 415 U.S.

651(1974); Steffel v. Thompson, 415 USS. 452(1974); Wooley v.

Maynard, 430 US. 705(1977).

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And so our legal odyssey ends.

What began as a dispute between two ancient enemies

concludes with the hope that they are reconciled by a mutual

friend--The Constitution of the United States.

Having considered the above matters and the record in

this cause, it is hereby

ORDERED AND ADJUDGED as follows:

(1) The recording As Nasty As They Wanna Be created

by the group 2 Live Crew is hereby DECLARED obscene.

(2) The action of the Broward County Sheriff's office in

threatening retail music stores with arrest for selling the Nasty

recording and presenting them with a copy of probable cause

order is hereby DECLARED unconstitutional as an improper

prior restraint of free speech in violation of the First and

Fourteenth Amendments to the United States Constitution.

(3) The defendant, Sheriff Nicholas Navarro, and his

deputies, agents, servants, employees, attorneys, and persons in

active concert or participation with any of them who reccive

actual notice of this order are all hereby PERMANENTLY

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ENJOINED from threatening employees, managers, Or Owners

of retail stores selling musical recordings with arrest for selling

allegedly obscene materials. The same persons are also hereby

PERMANENTLY ENJOINED from presenting or speaking

about any probable cause order of obscenity to employees,

managers, Or Owners of retail stores selling musical recordings.

Nothing in this order shall be understood as prohibiting Sheriff

Navarro or any of his deputies, agents, or employees from: (a)

giving legal advice to any person who is suspected of violating

a valid law prohibiting obscenity where such consultation is

genuinely undertaken with the purpose of aiding the suspect to

comply with the law and avoid prosecution under the obscenity

laws, or (b) vigorously enforcing the obscenity laws of the state

of Florida as mandated and required by section 847.011(9),

Florida Statutes.

(4) The sole affirmative defense in the answer and the

class action claims in the amended complaint are hereby

DISMISSED. The plaintiffs amended their pleading to include

class action allegations, but they never made a motion for

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certification of the class. Furthermore, the request to certify a

class would be moot as this order awards the same relief which

the class could conceivably seek. Judgment is not entered

against the defendant on the affirmative defense because the

class portion of the case is moot. However, the court does find

that the plaintiffs have standing and are "interested part[ies]"

within the meaning of the Declaratory Judgment Act, 28 U.S.C.

§2201(a).

(5) Any party seeking costs or an award under section

1988, Title 42 of the U.S. Code, shall apply to the court within

the time allowed by the Federal Rules of Civil Procedure, the

local rules of this court, and other applicable law. The parties’

applications, if any, shall include all appropriate factual and

legal argument to support the request for an award.

(6) Judgment shall be ENTERED on the two counts of

the amended complaint by separate order.

(7) The court shall RETAIN JURISDICTION to enforce

the permanent injunction entered in this case.

DONE AND ORDERED this _ 6th day of _ June_,

1990)

JOSE A. GONZALEZ, JR

UNITED STATES DISTRICT JUDGE

CC: John Jolly, Jr.

Bruce Rogow

Allen Jacobi

APPENDIX B

LUKE RECORDS, INC., a Florida corporation formerly

known as Skyywalker Records, Inc., et al., Plaintiffs-

Appellants,

Nick NAVARRO, Sheriff, Broward

County, Florida, Defendant-

Appellee.

No. 90-5508.

United States Court of Appeals,

Eleventh Circuit.

May 7, 1992.

Record company and musical group which produced

recording "As Nasty As They Wanna Be" sought declaratory and

injunctive relief after sheriff in Florida County sought ex parte

order declaring record obscene, presented copy of order to store

owners, and threatened arrest, with result that store owners

withdrew recording from their shelves. The United States

District Court for the Southern District of Florida, No. 90-6220-

Civ-JAG, Jose A. Gonzalez, Jr., 739 F.Supp. 578, enjoined

Sheriff from further interfering with sale of recording but

declared that recording was obscene. Record company and

B-2

group appealed. The Court of Appeals held that sheriff failed

to carry his burden of proving, even by a preponderance of the

evidence, that material was obscene by standards of Miller v.

California decision of the United States Supreme Court.

Reversed.

Sheriff in Florida county failed to carry his burden of

proving, even by a preponderance of the evidence, that musical

recording "As Nasty As They Wanna Be" was obscene by

standards of Miller v. California, where he put in no evidence but

tape recording itself and judge trying case relied on his own

expertise as to prurient interest community standard and artistic

value prongs of test; assuming the judge’s familiarity with

contemporary community standards was sufficient to carry case

as to first two prongs of that test (prurient interest applying

community standards and patent offensiveness as defined by

Florida law), judge could not, simply by listening to musical

work, determine that it had no serious artistic value.

Appeal from the United States District Court for the Southern

District of Florida

Before ANDERSON, Circuit Judge, RONEY and

LIVELY’, Senior Circuit Judges.

PER CURIAM:

In this appeal, appellants Luke Records, Inc., Luther

Campbell, Mark Ross, David Hobbs, and Charles Wongwon

seek reversal of the district court’s declaratory judgment that the

musical recording "As Nasty As They Wanna Be" is obscene

under Fla. Stat. § 847.011 and the United States Constitution,

contending that the district court misapplied the test for

determining obscenity. We reverse.

Appellants Luther Campbell, David Hobbs, Mark Ross,

and Charles Wongwon comprise the musical group "2 Live

Crew," which recorded "As Nasty As They Wanna Be." In

‘Honorable Pierce Lively, Senior U.S. Circuit Judge for the

Sixth Circuit, sitting by designation.

B-4

response to actions taken by the Broward County, Florida

Sheriff's Office to discourage record stores from selling "As

Nasty As They Wanna Be," appellants filed this action in federal

district court to enjoin the Sheriff from interfering further with

the sale of the recording. The district court granted the

injunction, finding that the actions of the Sheriffs office were an

unconstitutional prior restraint on free speech. The Sheriff does

not appeal this determination.

In addition to injunctive relief, however, appellants

sought a declaratory judgment pursuant to 28 U.S.C.A. § 2201

that the recording was not obscene. The district court found

that "As Nasty As They Wanna Be" is obscene under Miller v.

California.’

This case is apparently the first time that a court of

appeals has been asked to apply the Miller test to a musical

composition, which contains both instrumental music and

'413 U.S. 15, 93 S.Ct 2607, 37 L.Ed.2d 419 (1973).

B-5

lyrics.’ Although we tend to agree with appellants’ contention

that because music possesses inherent artistic value, no work of

music alone may be declared obscene, that issue is not

presented in this case. The Sheriff's contention that the work

is not protected by the First Amendment is based on the lyrics,

not the music. The Sheriff's brief denies any intention to put

rap music to the test, but states "it is abundantly obvious that it

is Only the ‘lyrical’ content which makes "As Nasty As They

Wanna Be" obscene." Assuming that music is not simply a sham

attempt to protect obscene material, the Miller test should be

applied to the lyrics and the music of "As Nasty As They Wanna

Be" as a whole: the basic guidelines for the trier of fact must be:

(a) whether “the average person, applying contemporary

community standards" would find that the work, taken as a

*In a pre-Miller case, United States v. Davis, 353 F.2d 614

(2d Cir.1965), cert. denied, 384 U.S. 953, 86 S.Ct. 1567, 16

L.Ed.2d 549 (1966), that court affirmed the conviction of a

defendant for mailing obscene materials, determining that two

phonograph records and labels were obscene. Justice Stewart,

dissenting from the denial of certiorari, stated that one of the

records "consist[ed] almost entirely of the sounds of percussion

instruments" and the other was a “transcription of passages from

.. & book of poems." 384 U.S. at 953, 86 S.Ct. at 1567.

B-6

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. 413 U.S. at 24, 93 S.Ct. at 2615.

This test is conjunctive. Penthouse Intern., Ltd. v. McAuliffe, 610

F.2d 1353, 1363 (Sth Cir.1980). A work cannot be held obscene

unless each element of the test has been evaluated

independently and all three have been met. /d.

Appellants contend that because the central issue in this

case is whether "As Nasty As They Wanna Be" meets the

definition of obscenity contained in a Florida criminal statute,

the thrust of this case is criminal and the Sheriff should be

required to prove the work’s obscenity beyond a reasonable

doubt. In the alternative, appellants assert that at minimum, the

importance of the First Amendment requires that the burden of

proof in the district court should have been by "clear and

convincing evidence," rather than by "a preponderance of the

evidence." Assuming, arguendo, that the proper standard is the

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preponderance of the evidence, we conclude that the Sheriff has

failed to carry his burden of Proof that the material is obscene

by the Miller standards under that less stringent standard. Thus,

to reverse the declaratory judgment that the work is obscene, we

need not decide which of the Standards applies.

There are two problems with this case which make it

unusually difficult to review. First, the Sheriff put in no

evidence but the tape recording itself. The Only evidence

concerning the three-part Miller test was put in evidence by the

plaintiffs. Second, the case was tried by a judge without a jury,

and he relied on his own expertise as to the prurient interest

community standard and artistic value prongs of the Miller test.

First, the Sheriff put in no evidence other than the

cassette tape. He called no expert witnesses concerning

contemporary community standards, prurient interest, or serious

artistic value. His evidence was the tape rceording **3clf.

The appellants called Psychologist Mary Haber, music

critics Gregory Baker, John Leland and Rhodes Scholar Carlton

Long. Dr. Haber testified that the tape did not appeal to the

B-8

average person’s prurient interest.

Gregory Baker is a staff writer for New Times Newspaper,

a weekly arts and news publication supported by advertising

revenue and distributed free of charge throughout South

Florida. Baker testified that he authored "hundreds" of articles

about popular music over the previous six or seven years. After

reviewing the origins of hip hop and rap music, Baker discussed

the process through which rap music is created. He then

outlined the ways in which 2 Live Crew had innovated past

musical conventions within the genre and concluded that the

music in "As Nasty As They Wanna Be" possesses serious

musical value.

John Leland is a pop music critic for Newsday magazine,

which has a daily circulation in New York, New York of

approximately six hundred thousand copies, one of the top ten

daily newspaper circulations in the country. Leland discussed in

detail the evolution of hip hop and rap music, including the

development of sampling technique by street disc jockeys over

the previous fifteen years and the origins of rap in more

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established genres of music such as jazz, blues, and reggae. He

emphasized that a Grammy Award for rap music was recently

introduced, indicating that the recording industry recognizes rap

as valid artistic achievement, and ultimately gave his expert

opinion that 2 Live Crew’s music in "As Nasty As They Wanna

Be" does possess serious artistic value.

Of appellants’ expert witnesses, Carlton Long testified

most about the lyrics. Long is a Rhodes scholar with a Ph.D. in

Political Science and was to begin an assistant professorship in

that field at Columbia University in New York City shortly after

the trial. Long testified that "As Nasty As They Wanna Be"

contains three oral traditions, or musical conventions, known as

call and response, doing the dozens, and boasting. Long

testified that these oral traditions derive their roots from certain

segments of Afro-American culture. Long described each of

these conventions and cited examples of each one from "As

Nasty As They Wanna Be." He concluded that the album

reflects many aspects of the cultural heritage of poor, inner city

blacks as well as the cultural experiences of 2 Live Crew. Long

B - 10

suggested that certain excerpts from "As Nasty As They Wanna

Be" contained statements of political significance or exemplified

numerous literary conventions, such as alliteration, allusion,

metaphor, rhyme, and personification.

The Sheriff introduced no evidence to the contrary,

except the tape.

Second, the case was tried by a judge without a jury, and

he relied on his own expertise as to the community standard and

artistic prongs of the Miller test.

The district court found that the relevant community was

Broward, Dade, and Palm Beach Counties. He further stated:

This court finds that the relevant community

standard reflects a more tolerant view of obscene speech

than would other communities within the state. This

finding of fact is based upon this court’s personal

knowledge of the community. The undersigned judge

has resided in Broward County since 1958. As a

practicing attorney, state prosecutor, state circuit judge,

and currently, a federal district judge, the undersigned

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has traveled and worked in Dade, Broward and Palm

Beach. As a member of the community, he has personal

knowledge of this area’s demographics, culture,

economics, and politics. He has attended public

functions and events in all three counties and is aware

of the community’s concerns as reported in the media

and by word of mouth.

In almost fourteen years as a state circuit judge, the undersigned

gained personal knowledge of the nature of obscenity in the

community while viewing dozens, if not hundreds of allegedly

obscene films and other publications seized by law enforcement.

The plaintiffs’ claim that this court cannot decide this

case without expert testimony and the introduction of specific

evidence on community standards is also without merit. The law

does not require expert testimony in an obscenity case. The

defendant introduced the Nasty recording into evidence. As

noted by the Supreme Court in Paris Adult Theatre I [v. Slaton,

413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973)], when the

B- 12

material in question is not directed to a ‘bizarre, deviant group’

not within the experience of the average person, the best

evidence is the material, which ‘can and does speak for itself.’

Paris Adult Theatre I, 413 U.S. at 56 & n. 6, 93 S.Ct. at 2634 &

n. 6.

In deciding this case, the court’s decision is not based

upon the undersigned judge’s personal opinion as to the

obscenity of the work, but is an application of the law to the

facts based upon the trier of fact’s personal knowledge of

community standards. In other words, even if the undersigned

judge would not find As Nasty As They Wanna Be obscene, he

would be compelled to do so if the communii;** standards so

required.’

It is difficult for an appellate court to review value

judgments. Although, generally, these determinations are

*Skyywalker Records, Inc. v. Navarro, 739 F.Supp. 578, 589,

590 (S.D.Fla.1990).

“See Marks v. United States, 430 U.S. 188, 198, 97 S.Ct. 990,

996, 51 L.Ed.2d 260 (1977) (Stevens, J., concurring in part and

dissenting in part); United States v. 2,200 Paper Back Books, 565

F.2d 566, 570 & n. 7, 571 (9th Cir.1977); United States v.

B - 13

made in the first instance by a jury, in this case the district

judge served as the fact finder, which is permissible in civil

cases.° Because a judge served as a fact finder, however, and

relied only on his own expertise, the difficulty of appellate

review is enhanced.’ A fact finder, whether a judge or jury, is

Obscene Magazines, Film & Cards, 541 F2d 810, 811 (9th

Cir.1976).

°Cf. Miller, 413 U.S. at 26-7, 93 S.Ct. at 2616.

*Penthouse, 610 F.2d at 1363 (citing e.g., Alexander v. Virginia,

413 U.S. 836, 93 S.Ct. 1803, 37 L.Ed.2d 993 (1973).

In Penthouse Intern. Ltd. y. McAuliffe, 610 F.2d 1353 (5th

Cir.1980), the Court stated:

We realize that Judge Freeman, as a member of

the community of Fulton County, Georgia, is probably

able to determine whether the average person, applying

contemporary community standards would find that a

work taken as a whole appeals to the prurient interest.

But in this case, we must exercise our power of

independent review and declare that taken as a whole,

‘Penthouse’ and ‘Oui’ appeal to the prurient interest...

While we realize that Judge Freeman, as a member of

the community, should possess insight as to what the average

person of Fulton County, Georgia, applying contemporary

community standards would find patently offensive, we must

exercise Our power of independent review. This is especially

important because Judge Freeman may have not examined the

question of ‘describing sexual conduct.’ We therefore conclude

B-14

limited in discretion.’ “Our standard of review must be faithful

to both Rule 52(a) and the rule of independent review."” "The

rule of independent review assigns to appellate judges a

constitutional responsibility that cannot be delegated to the trier

of fact," even where that fact finder is a judge.”

that the district court incorrectly determined that ‘Penthouse’

and ‘Oui’ do not include patently offensive depictions or

descriptions of sexual conduct.

610 F.2d at 1364, 1366. See also United States v. Various Articles

of Obscene Merchandise, 709 F.2d 132, 138 (2d Cir.1983)

(Meskill, J. concurring in the result) ("On a prior appeal to this

Court, a different panel of which I was a member, reversed

{ District] Judge Sweet’s finding of non-obscenity because he had

relied upon impermissible indicia of community standards....

Today, we affirm. In so doing, the majority accords uncommon

deference to Judge Sweet’s finding... I am ill equipped to

question Judge Sweet’s assessment. Moreover, the government

failed to introduce any evidence pertaining to community

standards to facilitate our review. Had this case originated in

the District of Connecticut, a community whose standards are

familiar to me, I would not hesitate to reverse; but it did not.

I reluctantly concur.").

*Penthouse, 610 F.2d at 1363. See Miller, 413 U.S. at 25, 93

S.Ct. at 2615.

*Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485,

499, 104 S.Ct. 1949, 1959, 80 L.Ed.2d 502, 515 (1983).

"Id. 466 U.S. at 501, 104 S.Ct. at 1959.

B- 15

In this case, it can be conceded without deciding that the

judge’s familiarity with contemporary community standards is

sufficient to carry the case as to the first two prongs of the

Miller test: prurient interest applying community standards and

patent offensiveness as defined by Florida law. The record is

insufficient, however, for this Court to assume the fact finder’s

artistic or literary knowledge or skills to satisfy the last prong of

the Miller analysis, which requires determination of whether a

work "lacks serious artistic, scientific, literary or political

value."

In Pope v. Illinois,” the Court clarified that whether a

work possesses serious value was not a question to be decided

by contemporary community standards.’ The Court reasoned

that the fundamental principles of the First Amendment prevent

the value of a work from being judged solely by the amount of

acceptance it has won within a given community:

"Miller, 413 U.S. at 24, 93 S.Ct. at 2615.

"481 U.S. 497, 107 S.Ct. 1918, 95 L.Ed.2d 439 (1987).

“Id. 481 U.S. at 500-01, 107 S.Ct. at 1920-21.

B - 16

Just as the ideas a work represents need not obtain

majority approval to merit protection, neither, insofar as

the First Amendment is concerned, does the value of the

work vary from community to community based on the

degree of local acceptance it has won."

The Sheriff concedes that he has the burden of proof to show

that the recording is obscene. Yet, he submitted no evidence to

contradict the testimony that the work had artistic value. A

work cannot be held obscene unless each clement of the Miller

test has been met. We reject the argument that simply by

listening to this musical work, the judge could determine that it

had no serious artistic value.

REVERSED.

‘Id. 481 U.S. at 500-01, 107 S.Ct. at 1921.

APPENDIX C

UNITED STATES COURT OF

APPEALS, ELEVENTH

CIRCUIT

CASE NO: 90-5508

LUKE RECORDS, INC., A

FLORIDA CORPORATION

FORMERLY KNOWN AS

SKYYWALKER RECORDS, INC.,

ET AL.,

Plaintiffs-Appellants,

¥.

NICK NAVARRO, SHERIFF,

BROWARD COUNTY, FLORIDA

Defendant-Appellee.

On Appeal from the United States District Court

for the Southern District of Florida

ON PETITION(S) FOR REHEARING

AND SUGGESTION(S) OF REHEARING

Before: ANDERSON, Circuit Judge, RONEY AND

LIVELY’, Senior Circuit Judges.

PER CURIAM:

‘Honorable Pierce Lively, Senior U.S. Circuit Judge for the

Sixth Circuit, sitting by designation.

C-2

(V) The Petition(s) for Rehearing are DENIED and no

member of this panel nor other Judge in regular active service

en the court having requested that the Court be polled on

rehearing en banc (Rule 35, Federal Rules of Appellate

Procedure; Eleventh Circuit Rule 35-5), the Suggestion(s) of

Rehearing En Banc are DENIED.

( ) The Petition(s) for Rehearing are DENIED and the

Court having been polled at the request of one of the members

of the Court and a majority of the Circuit Judges who are in

regular active service not having voted in favor of it (Rule 35,

Federal Rules of Appellate Procedure; Eleventh Circuit Rule

35-5), the Suggestion(s) of Rehearing En Banc are also

DENIED.

( ) A member of the Court in active service having

requested a poll on the reconsideration of this cause en banc,

and a majority of the judges in active service not having voted

in favor of it, Rehearing En Banc is DENIED.

C-3

ENTERED FOR THE COURT:

UNITED STATES CIRCUIT JUDGE

APPENDIX D

UNITED STATES COURT OF

APPEALS ELEVENTH

CIRCUIT

CASE NUMBER: 90-5508

LUKE RECORDS, INC.; LUTHER

CAMPBELL; MARK ROSS; DAVID HOBBS:

CHRIS WONGWON,

Plaintiffs/Appellants,

VS.

NICK NAVARRO, Sheriff of

Broward County, Florida,

Defendant/Appellee.

On Appeal From A Decision Of The

United States District Court For

The Southern District of Florida

PETITION FOR REHEARING AND

SUGGESTION OF REHEARING EN BANC

RICHARD A. PURDY

SHAILER, PURDY & JOLLY, P.A.

Attorneys for Appellee

1322 S.E. 3rd Avenue

Fort Lauderdale, Florida 33316

Telephone: (305) 462-3200

CERTIFICATE OF INTERESTED PARTIES

Pursuant to 11th Cir. R. 28-2(b), Appellee certifies that

the following is a complete list of persons in addition to the

parties who have an interest in the outcome of this case:

American Civil Liberties Union

Atlantic Telecommunications Corporation

Kevin Baine, Esquire

Honorable Jose A. Gonzalez, Jr.

<"Home Box Office, Inc.

Allen Jacobi, Esquire

John W. Jolly, Jr., Esquire

Richard A. Purdy, Esquire

Recording Industry Association of America

Steven Reich, Esquire

Bruce Rogow, Esquire

Jack Thompson, Esquire

Time-Warner Communications, Inc.

Daniel M. Waggoner, Esquire

RICHARD A. PURDY

C - 1 of 1

STATEMENT OF COUNSEL

I express a belief, based on a reasoned and studied

professional judgement, that the panel decision is contrary to

the following decisions of the Supreme Court of the United

States or the precedents of this circuit and the former Sth

Circuit Court of Appeals and that consideration by the full court

is necessary to secure and maintain uniformity of decisions in

this court:

l. U.S. v Groner, 479 F.2d 577 (5th

cir.)(en banc), vacated 414 US.

969,94 S.Ct. 278, 38 1.Ed.2d 213

(1973) (remanded for

consideration in light of Miller v

California, 413 U.S. at 15, 93

S.Ct. at 2607), adhered to, 494

F.2d 499 (Sth Cir.), cert. denied,

419 US. 1010,95 S.Ct. 331, 42

L.Ed 2d 285 (1974)

2. Paris Adult Theatre v Slaton, 413

U.S. 49, 93 S.Ct. 2628, 37

L.Ed.2d 446 (1973)

z Kaplan v California, 413 U.S. 15,

93 S.Ct. 2680, 37 L.Ed.2d 492

(1973)

4, U.S. v_Bagnell, 679 F.2d 826

(11th Cir., 1982)

I express a belief, based on a reasoned and studied

professional judgement, that this appeal involves one or more

questions of exceptional importance:

1. May a district court judge in his

discretion allow experts to testify

regarding their opinion of serious

literary, artistic, political or

scientific value of alleged

obscene material and then as the

trier of fact reject the experts

testimony and find the material

is obscene based upon the

content of the material itself?

pa Is the government or law

enforcement required to call

expert witnesses when the district

court in its discretion allows the

party claiming the material is not

obscene to present expert

testimony?

La Is the standard of review by the

appellate court any different

when reviewing sufficiency of the

evidence to support findings of

fact by a judge or a jury?

4. Can alleged music on an audio

tape be so nasty as to exceed the

constitutional protection of the

First Amendment to the United

States Constitution?

SHAILER, PURDY & JOLLY, P.A.

Attorneys for Appellee

1322 S.E. Third Avenue

Fort Lauderdale, Florida 33316

Telephone: (305) 462-3200

RICHARD A. PURDY

Fla. Bar #124506

ill

TABLE OF CONTENTS

CERTIFICATE OF INTERESTED PERSONS ... C-] of 1

STATEMENT OF COUNSEL

re et Iv

STATEMENT OF THE ISSUE(S) ASSERTED

TO MERIT EN BANC CONSIDERATION ............ ]

STATEMENT OF THE COURSE OF PROCEEDINGS

AND DISPOSITION OF THE CASE ................. ]

STATEMENT OF THE FACTS ..................... 2

ARGUMENT AND AUTHORITIES IN

SUPPORT OF MOTION FOR REHEARING

AND EN BANC CONSIDERATION ................. 6

I 2% ee ct nn) ey ad en 14

TABLE OF AUTHORITIES

Ginsburg v U.S., 383 U.S. 463, 465 (1966) ............. 11

Hamling v U.S., 418 U.S. 87, 94 S.Ct. 2387, 41

ren On eee rore 13

Kaplan v California, 413 U.S. 15, 93 S.Ct. 2680,

igh & fF a. os) eee rare error 1,7,10,11,12,14

Luke Records, Inc. v. Navarro, 11th Circuit Court

CE EE SNE FO PSU ork ea eed wae dct canececsnn |

Miller v California, 413 U.S. at 15, 93 S.Ct. at 2607),

adhered to, 494 F.2d 499 (Sth Cir.), cert. denied, 419 U.S.

1010,95 S.Ct. 331, 42 L.Ed 2d 285 (1974) ......... i,7,12,13

Paris Adult Theatre v Slaton, 413 U.S. 49, 93 S.Ct. 2628, 37

Ry Ft rae re rere ee i,7,10,12,14

People v Kaplan, 23 Cal. Rep.3d Supp. 9,",; 100 Cal.Rptr. 372,

| ee ree Tarren re ia errs 11

Skyywalker Records, Inc. v. Navarro, 739 F.Supp. 578 (S.Dist.,

Fahd MEE eka ech Wid h a BORG ewe ee aeaes eee son ia

Smith v California, 361 U.S. 147, 164-165 (1959) (Frankfurter,

ce PEST TC See Tee TT et eee ere li

US. v Bagnell, 679 F.2d 826 (11th Cir., 1982) ....i, 7, 13, 14

U.S. v Groner, 475 F.2d 550 (Sth Cir., 1972)

co 8 ES ren we reU err ee my 7, 8,9

U.S. v Groner, 479 F.2d 577 (Sth cir.)(en banc), vacated 414

U.S. 969,94 S.Ct. 278, 38 1.Ed.2d 213 (1973)

rs re hiked hee Ween a cis Lk RS i, 7-14

U.S. v Groner, 494 F.2d 499 (Sth Cir., 1974)

ED gee ea eee oa ge eha e te 13, 14

U.S. v. Ratner, 502 F.2d 1300 (Sth Cir., 1974) 2.0.0... 13

U.S. v. Thevis, 484 F.2d 1149 (Sth Cir., 1973)........... 12

D-1

STATEMENT OF THE ISSUE ASSERTED

TO MERIT EN BANC CONSIDERATION

I. - Whether expert testimony is

required to rebut expert

testimony in obscenity cases

when the alleged obscene

material is introduced into

evidence i.e. whether the district

court is bound by expert

testimony or may reject it if it is

not countered by conflicting

expert testimony.

STATEMENT OF THE COURSE OF PROCE&!iNGS

AND DISPOSITION OF THE CASE

The Appellant, Luke Records, Inc., soughi a declaratory

judgement in the district court as to the audio cassette recording

As_ Nasty As They Wanna Be. The district court found and

declared the recording obscene. Skyywalker Records, Inc. v.

Navarro, 739 F.Supp. 578 (S.Dist., Fla., 1990). The court of

appeals for the 11th Circuit reversed the district court in Luke

Records, Inc. v. Navarro, 11th Circuit Court of Appeals Case

No. 90-5508, May 7, 1992. The Appellee herein files this Motion

for Rehearing and Suggestion for En Banc Consideration.

D-2

STATEMENT OF THE FACTS

On February 26, 1990, Detective Mark Wichner, a

Broward County Florida Deputy Sheriff appointed by the

Appellee, NICHOLAS G. NAVARRO, Sheriff of Broward

County, purchased a cassette tape entitled As Nasty As They

Wanna Be by the 2 Live Crew. The lyrics of six (6) of the songs

were transcribed by Detective Wichner in an Affidavit for Order

of Determination of Probable Cause of Obscenity that was

sworn to on March 9, 1990. The lyrics to three of the six songs

are as follows:

Bad Ass Bitch

[NOTE: Partial transcription]

Let’s get butt booty naked and do the wild

thing.

First she took off her panties, snatched off her

bra.

I pooped the biggest tits I ever saw-

They were big enough to knock a man down,

They were shaped like grapes in my favorite

shade of brown

My dick was hard and she was hot like a

heater,

By the looks of her mouth, she was dick eater.

I said, "You raggedy bitch, don’t play dumb!

Put my dick in your mouth and make this

motherfucker cum!"

D - 3

Ya! Yo! This bitch in on!

Bad Ass Bitch.

The head was smoking, I had to call my

friends,

While the next ten minutes all the boys were

in.

Dat was in the front and lat was in the back.

The pussy was poppin like cracker jacks.

She asked ..??... put her in the trick,

I gave her a pen for every inch of my dick.

We kept on fucking until the early morn.

That bitch was on.

Bad Ass Bitch.

Dick Almighty

{NOTE: Partial transcription]

What the fuck is your name, motherfucker?

Long rod, thick frank, stiff peter. .

[Random comments]

And my greatest thrill is to bust my nuts in a

bitch’s mouth.

That dick almighty, that dick almighty.

Dick almighty’s of no surprise,

It’ll fuck all the bitches, all shapes and size.

She’ll climb a mountain, even run the block

Just to kiss the head of this big black cock.

He'll tear the pussy open, ‘cause it’s

satisfaction.

The bitch won’t leave, it’s fatal attraction.

Dick’s so proudful, she’ll kneel and pray,

Awaiting her time, hopin soon to Slay...

That dick will make a bitch cry.

We’re fucking the bitch that’s tight inside.

That dick has got a spell on you,

D-4-

Once it gets inside, you’ll act the fool.

That dick will make a bitch act cut-

Suck my dick, bitch, it'll make you puke.

Jump on it, grab it, like ya want it.

If you could wear a dick, bitch. You would

flaunt it.

That dick almighty, dick almighty.

C’Mon Babe

Hard, baby. Fuck me. Harder. Oh, god, I can’t

stop.

Oh, come inside me. Oh, come in me.

C’Mon babe, fuck me [repeated numerous

times]

{All of the below is interspersed with female

groans]

When the party’s over, we can get together,

Go to my house and fuck forever.

And do whatever comes to mind.

Let me stick my dick in your behind.

Pour me a glass of Dom perignon.

Then suck my dick until I come.

{Unintelligible]

C’mon babe, we can do it

No need to expect...

Fuck you in this position...

C’Mon babe, fuck me [repeated numerous

times]...

Together as one, we will be,

I'll be fucking you and you'll be sucking me

Lick my ass up and down

Lick me ’til your tongue turns do-do brown...

Fucking each other like lovers do,

D-5

When the pussy’s wet I know what to do...

Suck it, bitch, because you can do this.

C’mon babe, fuck me [repeated numerous

times]...

You say you don’t fuck on the first date,

Then fuck you, bitch, I ain’t gonna wait.

My dick is hard, and my back is strong.

I'll find another bitch to get it on...

C’mon babe, fuck me...{on and on]

You wanna play cat and mouse,

When I catch you I’m gonna stick my dick in

your mouth.

Now stop the teasing and start the pleasing.

Just fuck me good until I sleep...

Suck this dick, put me at ease...

Something heavy, please don’t bite...

C’mon babe, fuck me [repeated numerous

times]..."

(NOTE: The lyrics to "Me So Horny", "Dirty Nursery Rhymes",

and "C’Mon Babe" are similar and only omitted to keep this

motion to 15 pages.)

On March 2, 1990, Honorable Mel Grossman, Circuit

Judge, 17th Judicial Circuit, Florida reviewed the aforesaid

Affidavit of Wichner and listened to the entire tape of As Nasty

As They Wanna Be (NASTY). On March 9, 1990, Judge

Grossman entered an Order of Determination of Probable

D - 6

Cause of Obscenity regarding the NASTY tape. In the Order

Judge Grossman noted that his "application of contemporary

community standards is shared by as avid a First Amendment

proponent as the Miami Herald" and cited a Miami Herald

article of February 28, 1990 that said "many of 2 Live Crew’s

lyrics are so filled with hard-core sexual, sadistic and masochistic

material that they could not be printed here, even in censored

form".

Testimony was taken before the district court judge that

heard the instant action on a Motion for Preliminary Injunction

and the parties stipulated that the trial court could consider this

testimony "for any purposes" at the trial of the instant action.

The testimony of the preliminary injunction hearing was not

transcribed and not made a part of the Record on Appeal by

either party to this action.

At the trial of this action on May 14 and 15, 1990,

detective Mark Wichner testified that he thought the nasty tape

as a whole might be obscene so he presented it to a judge. He

also said the tape was “extremely explicit", "degrading" to the

D-7

_ female sex and at some points extremely violent but that on the

whole it described sexual activity. He said the songs were

"sexually abusive".

At the trial, the tape As Nasty As They Wanna Be was

played in its entirety. Neither party had the entire tape

transcribed and the lyrics are not part of the Record on Appeal

(except the lyrics contained in the probable cause affidavit of

detective Wichner). The tape itself was admitted into evidence.

At the trial, the Sheriff called no expert witness and the

Appellee called several experts who testified that in their

opinion As Nasty As They Wanna Be had serious literary,

artistic, political or scientific value. The Sheriff cross-examined

the experts. Members of the 2 Live Crew band also testified

regarding the tape, its music and its lyrics. The Sheriff cross-

examined the band members.

The district court, sitting as the trier of fact found the

-tape As Nasty As They Wanna Be was obscene, and issued an

opinion with his view of the facts and the law. Skyywalker

Records, Inc. v Navarro, 739 F.Supp. 578 (S.Dist., Fla., 1990).

D-8

ARGUMENT AND AUTHORITIES IN SUPPORT OF MOTION

FOR REHEARING AND EN BANC CONSIDERATION

Two Live Crew painted black and white stripes on a cow

and sold it. The Sheriff thought it was a cow and took it to a

state circuit court judge. The judge looked at it and found

probable cause as a matter of law that it was a cow. Two Live

Crew took it to the District Court for the Southern District of

Florida, Judge Gonzalez, and asked him to decide what it was

in an adversary declaratory judgement proceeding. Two Live

Crew presented experts in the field of striping who said this cow

is a zebra. The Sheriff thought those experts may have special

knowledge in the field of mt but striping does not make a

cow into a zebra. Any person’ can see it is a cow and I do not

need an expert to tell that to the judge. The District Court

looked at the whole cow and found that despite the stripes and

the expert opinions the animal was indeed a cow. The 11th

Circuit Court of Appeals panel decision holds that the district

judge must accept the experts opinion. Today the law in this

circuit is that a cow with painted black and white stripes is a

zebra. |

D-9

The panel decision of May 7, 1992 is a remarkable

departure from the traditional concepts of evidence, weight of

evidence, district court discretion in the admission of evidence

and fact finding by judge or jury. It is an unprecedented ruling

that in obscenity cases, the government must have expert

testimony to rebut expert testimony. There are no other cases

that give such conclusive effect to the weight and credibility of

expert testimony.

The panel decision is inconsistent with a long line of

federal and state cases and directly cunflicts with U.S. v Groner,

479 F.2d 577 (Sth cir.)(en banc), vacated 414 U.S. 969,94 S.Ct.

278, 38 1.Ed.2d 213 ( 1973) (remanded for consideration in light

of Miller v California, 413 U.S. at 15, 93 S.Ct. at 2607), adhered

to, 494 F 2d 499 (Sth Cir.), cert. denied, 419 U.S. 1010,95 S.Ct.

331, 42 L.Ed 2d 285 ( 1974). The panel decision is also

inconsistent with the holding of Paris Adult Theatre vy Slaton,

413 U.S. 49, 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) and Kaplan v

California, 413 U.S. 15, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973),

and in conflict with U.S. y Bagnell, 679 F.2d 826 (11th Cir.,

D - 10

-1982).

The original panel decision in U.S. v Groner, 475 F.2d

550 (Sth Cir., 1972) (GRONER 1), in many respects parallels

the panel opinion in the case at bar. There Judge Thornberry

wrote an opinion joined by Judge Morgan and concurred in by

Judge Clark. Groner was convicted by a jury of using a common

carrier in interstate commerce to transport a quantity of obscene

books. At trial, the government put on no experts to show that

the books were themed to appeal to the prurient interest of its

readers, went substantialiy beyond the community limits of

candor in their description of sex and nudity, or were devoid of

all redeeming social value. GRONER I, at siiial 551-552.

Groner presented experts in the fields literature and psychology

to the effect that the books did not violate any of the three

elements of prurient interest, substantially beyond Community

limits of candor in descriptions of sex and devoid of all

redeeming social value. GRONER I, at page 552. The panel

found the books to be "...vile, filthy, disgusting, vulgar and on

the whole, quite uninteresting" yet the panel in GRONER | held

iisiscaaieeceenenieeiminenaeaaie

D- 11

that they were incapable of applying the obscenity test without

guidance from experts or otherwise. GRONER [ at page

552,554. They remanded for a new trial and held that expert

testimony is required on the elements of obscenity. GRONER

I at page 559. A petition for rehearing and rehearing en banc

was granted.

The en banc opinion in U.S. v Groner, 479 F.2d 577

(1973) (GRONER II) was an 8-7 decision with current 11th

Circuit judges Dyer, Clark and Roney in the majority and judge

Morgan joining the dissent. GRONER II squarely held that

"..pictures, books, publications or other materials involved may

serve as evidence to contradict the opinion of the expert. It has

long been the rule that triers of fact, judges and juries alike, are

not required to accept expert opinions". GRONER II at page

584. (citations omitted). The court said "There is profound

wisdom in the rule which permits judges and juries after proper

consideration to disregard the opinions of experts." GRONER

II at page 585. Qualified experts disagree in many fields of

knowledge; judges who are qualified experts in law disagree. id.

D - 12

at p.585. GRONER II in reversing the panel decision of

GRONER I said that the rule that the prosecution must support

its proof by expert testimony on the elements of obscenity is

"..misconceived, unnecessarily burdensome, and confounds

traditional concepts of proof. It is littie more than a fetishism

formulated in the name of the First Amiendment. We conclude

that expert testimony on the elements of obscenity is not a

constitutional necessity." GRONER II at page 579. Further, the

en banc opinion said the panel in GRONER I seemed to have

difficulty in making an independent review without expert

testimony. GRONER II at p. 579. So does the pane! opinion in

the case at bar express such a difficulty. Although 7 judges in

GRONER Il decided on a singular Kois test of obscenity

without the "patently offensive" or "utterly without redeeming

social value" elements, the majority using Roth made an

“independent constitutional judgement" and said "...we have no

difficulty in applying this test without the help of expert

testimony on the part of the prosecution." GRONER II at p.

583.

re a

D - 13

GRONER II said that a judge may permit an expert to

give testimony even if he is convinced that the material is vile,

filthy, vulgar and disgusting, but the ultimate decision classically

rests with the jury upon proper instructions or with the judge as

fact finder. GRONER II at p. 585.

Judge Ainsworth in a concurring opinion joined by 7

other judges adopted the Roth test and said "to hold, in effect,

that we must turn the application of the obscenity statutes over

to a collection of randomly chosen Ph.D.’s as expert witnesses

in such matters, is to require abdication of the judicial function

of the judge or jury as triers of fact." *** "We can discern for

ourselves in reviewing this case, as the jury did initially, that the

materials involved are obscene within the definition of Roth. To

seek an expert to reinforce our views would be to guild the lily.

Such an expert would be no more suitable to draw a conclusion

or furnish information in this regard than would judges and

juries." GRONER II at p.588.

Judge Clark confessed error in concurring in the original

panel decision. "I am now sure that a rule requiring expert

D- 14

Opinion evidence in obscenity cases is not required by precedent,

is wrong, and would compound rather than solve any problem

in this bewildering area". GRONER II at p.588.

The panel decision in the case at bar is clearly in direct

conflict with the GRONER en banc holding. GRONER II has

been relied on and cited in a multitude of state and federal

court decisions including the U.S. Supreme Court.

Paris Adult Theatre v Slaton, 413 U.S. 49, 93 S.Ct. 2628,

37 L.Ed.2d 446 (1973) cites GRONER II in holding that it was

not error to fail to require expert testimony when the materials

themselves were placed into evidence and in footnote 6

GRONER IL is cited for the statement that "no such assistance

is needed by jurors in obscenity cases; indeed the ’expert

witness’ practices employed in these cases have often made a

mockery out of the otherwise sound concept of expert

testimony." Paris, 93 S.Ct. at page 2634. Paris held the films are

the "best evidence of what they represent". Paris, 93 S.Ct. at

p.2634.

While Paris involved the exclusion of experts rather than

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the failure to rebut expert testimony and was so distinguished by

the panel decision in the case at bar, Kaplan v California, 413

U.S. 15, 93 S.Ct. 2680, 37 L.Ed.2d 492 (1973) on its facts and

holding is in direct conflict with the panel’s ruling that expert

Opinions must be countered with conflicting expert opinions.

Kaplan involved obscene books with no photos much like the

case at bar which involves lyrics with no photos but sound

enhancement of the obscene lyrics. At trial in the Kaplan case,

the state did have experts but only on the issues of purient

interest and beyond limits of candor in California but the state

did not present any expert on the issue of "utterly without

redeeming social value." Kaplan, 93 S.Ct. at p.2683. The only

State "expert" was a police officer on the vice squad. The

defendant presented expert testimony that the books did have

social value. People v Kaplan, 23 Cal. Rep.3d -Supp. 9,"; 100

Cal.Rptr. 372, 373 (1972). Thus Kaplan involves the same issue

of unrebutted expert opinion on the social value element of

obscenity as does the case at bar.

Kaplan held that expression by words alone or oral

D - 16

utterances car be legally "obscene" and that "the defense should

be free to introduce appropriate expert testimony, see Smith v

California, 361 U.S. 147, 164-165 (1959) (Frankfurter, J.,

concurring), but in the cases in which this court has decided

obscenity questions since Roth, it has regarded the materials as

sufficient in themselves for the determination of the question.

Ginsburg v U.S., 383 U.S. 463, 465 (1966). See U.S. v Groner,

479 F.2d 577, 579-586 (CA 5 1973). On the record in this case,

the prosecution’s evidence was sufficient as a matter of federal

constitutional law to support petitioner’s convictions". People v

Kaplan, 93 S.Ct. at page 2685.

The panel decision in the case at bar holds that as a

matter of law the Sheriff's evidence - the tape itself - on the

third element of Miller - serious literary, artistic, political or

scientific value - is not sufficient. Since the books were sufficient

in themselves to rebut experts for the U.S. Supreme Court in

Kaplan using the lesser standard of "without redeeming social

value" the tape itself is sufficient by itself to rebut the 2 Live

D-17

Crew’s experts on serious value. The panel decision in the case

at bar therefore directly conflicts with the U.S. Supreme Court

decision in Kaplan, and further directly conflicts with the

Supreme Court’s interpretation and application of U.S. v

Groner, 479 F.2d 577 (Sth Cir., 1973) (GRONER II).

The former Sth Circuit Court of Appeals cited Paris

Adult Theatre, supra, as confirming the GRONER II holding on

expert witnesses:

"We held in United States yv

Groner, 1973, 479 F.2d 577 (En

banc), that expert testimony on

the part of the prosecution is not

necessary in cases where the

materials themselves are

available for inspection by the

finder of fact. That we were

correct in this opinion was made

clear in Paris Adult Theatre I v.

Slaton, supra, 413 U.S. at 56, 93

S.Ct. at 2634, 37 L.Ed.2d at 456.