Skyywalker Records, Inc. v. Navarro

• Decision Date: 06 June 1990
• Docket Number: No. 90-6220-CIV-JAG.,90-6220-CIV-JAG.
• Citation: 739 F. Supp. 578
• Parties: SKYYWALKER RECORDS, INC.; Luther Campbell; Mark Ross; David Hobbs; and Chris Wongwon, Plaintiffs, v. Nicholas NAVARRO, Defendant.
• Court: U.S. District Court — Southern District of Florida

739 F. Supp. 578

SKYYWALKER RECORDS, INC.; Luther Campbell; Mark Ross; David Hobbs; and Chris Wongwon, Plaintiffs, v. Nicholas NAVARRO, Defendant.

No. 90-6220-CIV-JAG.

United States District Court, S.D. Florida, Fort Lauderdale Division.

June 6, 1990.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Bruce Rogow, Ft. Lauderdale, Fla., Allen Jacobi, Jacobi & Jacobi, North Miami, Fla., for plaintiffs.

John W. Jolly, Jr., Shailer, Purdy & Jolly, P.A., Fort Lauderdale, Fla., for defendant.

FINAL ORDER

GONZALEZ, District Judge.

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, 39 S.Ct. 247, 63 L.Ed. 470 (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.

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 restaint 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 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 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 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 listened 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 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.

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 deputy sheriffs pulled the recording from their shelves after 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 recording, as follows: "WARNING: EXPLICIT LANGUAGE CONTAINED".

The Broward County Sheriff's 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 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 "no 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 U.S. 568, 570-71, 62 S.Ct. 766, 768-69, 86 L.Ed. 1031 (1942); Roth v. United States, 354 U.S. 476, 479-80, 77 S.Ct. 1304, 1305-06, 1 L.Ed.2d 1498 (1957); Stanley v. Georgia, 394 U.S. 557, 559, 89 S.Ct. 1243, 1244, 22 L.Ed.2d 542 (1969); Miller v. California, 413 U.S. 15, 20, 93 S.Ct. 2607, 2612, 37 L.Ed.2d 419 (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."

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...