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It isn't that the U.S. Constitution encourages this type of behavior, it simply
isn't meant to address it. Its purpose is to protect the people from an ill-
intentioned or corrupt government; not to regulate how the citizenry interact with
each other.
Yet even given the broad freedom of expression in the United States, there are
exceptions and restrictions. For example, any idea or expression deemed "obscene"
is exempt from the protections of the Constitution, and is therefore subject to legal
censorship. Though the operational definition of "obscenity " has changed over
the years, our current standard has remained relatively in place for more than
three decades. This version was established in a United States Supreme Court
decision (Miller v. California
, 1973) which includes an obscenity definition
determined by the "Miller Test," asking:
"(1) Whether the average person, applying contemporary community standards of
the state and local community, would find that the work, taken as a whole, appeals to
the prurient interest; (2) where the work depicts or describes in a patently offensive
way sexual conduct specifically defined by applicable state law; and (3) whether the
work lacks serious literary, artistic, political, or scientific value."
It's the third component of the "Miller Test " (sometimes referred to as the
"SLAPS Test" for "Serious Literary, Artistic, Political, or Scientific value") that is
often used when assessing obscenity and free expression protections for music
and musicians.
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Though popular music has caused considerable alarm among detractors in the
United States for more than fifty years, the SLAPS test has only been truly applied
to music once.
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In May, 1990 the rap group 2 Live Crew saw its album Nasty As
They Wanna Be ruled obscene by federal Judge Jose Gonzalez, Jr. , thus legally
legitimizing a wave of censorship brought on the group during the previous year.
Originating in Florida but quickly spreading throughout the United States, critics
bemoaned the album's intrepid use of profanity.
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In his opinion, Gonzalez ruled
that Nasty As They Wanna Be failed the SLAPS test because rap music had signifi-
cantly less artistic merit than "melodic" music. He also theorized that the focus of
rap music was solely on the lyrics, thus permitting the musical album to be
declared legally obscene based solely on the themes of the words of the songs.
About eighteen months later, Gonzalez's ruling was reversed by the U.S Court of
Appeals. When the U.S Supreme Court allowed the Court of Appeals ruling to
stand, the issue was permanently settled in the band's favor. While this might
seem like an ultimate victory for 2 Live Crew, the intervening period resulted in
more than a dozen arrests and the album's permanent removal from record store
shelves across the United States.