Skyywalker Records, Inc. v. Navarro
17 Media L. Rep. (BNA) 2073, 739 F.Supp. 578, 1990 U.S. Dist. LEXIS 6883 (1990)
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Rule of Law:
A musical recording can be found legally obscene if it meets the three-prong Miller test. However, law enforcement actions that effectively remove presumptively protected speech from public circulation by threatening sellers with arrest, based only on an ex parte probable cause order, constitute an unconstitutional prior restraint that violates procedural due process.
Facts:
- In 1989, the musical group 2 Live Crew, through their record company Skyywalker Records, Inc., released the album 'As Nasty As They Wanna Be.'
- In February 1990, the Broward County Sheriff's office, under Sheriff Nicholas Navarro, initiated an investigation into the album following complaints from residents.
- A deputy purchased a cassette of the recording from a retail store, where it was displayed on an open rack accessible to customers of all ages.
- The Sheriff's office submitted an affidavit, a transcript of several songs, and the recording to a Broward County Circuit Court judge, who then issued an ex parte order finding probable cause that the recording was obscene.
- Sheriff's deputies then visited approximately 15 to 20 local music retailers.
- During these visits, deputies presented store managers with a copy of the judge's probable cause order.
- The deputies warned the managers that any further sales of the recording would result in their arrest, with potential felony charges for selling to a minor.
- As a direct result of these visits and the associated publicity, all retail stores in Broward County stopped selling the 'As Nasty As They Wanna Be' recording.
Procedural Posture:
- Skyywalker Records, Inc. and the members of 2 Live Crew filed a civil action against Sheriff Nicholas Navarro in the U.S. District Court for the Southern District of Florida.
- The plaintiffs sought a declaratory judgment that their recording was not obscene and that the Sheriff's actions constituted an unconstitutional prior restraint, and they also requested injunctive relief.
- The district court previously denied the plaintiffs' motion for a preliminary injunction.
- The case then proceeded to a two-day bench trial on the merits before Judge Gonzalez.
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Issue:
First, does the musical recording 'As Nasty As They Wanna Be' qualify as legally obscene under the three-part test established in Miller v. California? Second, do the actions of a sheriff's office—obtaining an ex parte probable cause order of obscenity and using it to warn retailers that future sales will result in arrest, thereby causing a halt in sales—constitute an unconstitutional prior restraint on speech?
Opinions:
Majority - Gonzalez, J.
Yes, the musical recording 'As Nasty As They Wanna Be' is legally obscene. It meets all three prongs of the Miller test. First, applying the contemporary community standards of Dade, Broward, and Palm Beach counties, the court found the recording's pervasive and graphic descriptions of sexual acts, including oral-anal contact, group sex, and fellatio, appealed to the prurient interest, defined as a shameful or morbid interest in sex. Second, the court determined that the work was patently offensive because its lyrics depicted sexual conduct in graphic detail, akin to a 'camera with a zoom lens,' focusing on ultimate sex acts far beyond mere nudity or innuendo. Third, the court concluded that the recording, taken as a whole, lacked serious literary, artistic, political, or scientific value, rejecting expert testimony that it contained cultural or political commentary and finding its musical value, stripped of the 'riffs,' to be minimal and subordinate to the explicit lyrical content. Yes, the actions of the Broward County Sheriff's office constituted an unconstitutional prior restraint on speech. By using the ex parte probable cause order and the threat of arrest to stop all sales of the recording, the Sheriff's office engaged in a 'constructive seizure' of presumptively protected speech without the required procedural safeguards. This informal censorship scheme failed the test from Freedman v. Maryland because: 1) the Sheriff, as the censor, did not promptly institute judicial proceedings to prove the material was unprotected; 2) the restraint was indefinite and designed to suppress the work, not merely preserve the status quo for a brief period; and 3) there was no assurance of a prompt, final judicial determination on the merits. For a mass seizure of this nature, an adversarial hearing is required before the restraint, which did not occur here.
Analysis:
This landmark decision was one of the first to apply the Miller obscenity test to a musical recording, establishing that music is not exempt from obscenity laws if its lyrical content is the dominant feature. The ruling reinforces the principle that obscenity is not protected by the First Amendment. However, the case's most significant impact lies in its strong condemnation of 'informal' censorship by law enforcement. It sets a clear precedent that police cannot use threats or legally non-binding judicial orders to coerce private parties into suppressing speech, thereby circumventing the strict procedural due process requirements, such as a prior adversarial hearing, necessary for any valid prior restraint.
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