First Amendment jedi 'Luke Skyywalker' turns 60, recounts storied battles for equality, liberty

My daughter co-directed this promotional video, published yesterday, for the multi-talented Jerrika Karlae.

I like hip-hop and rap, but not as much as I used to.  My taste in music, I admit, has been softened in middle age by nostalgia and an inexplicable draw to indie pop, AJR being my current fave (see "Bang!" on Today in August, on Ellen in October, and at the Macy's Thanksgiving Day Parade in November).  But I like to think that I still can appreciate a broad range of music, and for various reasons.  I like Karlae because she's a woman innovating in a genre that has been dominated by male artists (she's not just Young Thug's fiancée), and she represents the multiracial Atlanta arts scene on the contemporary cutting edge. (HT@themorgansteele, without whose aid I would not know Karlae.)

I was a 2 Live Crew fan in secondary school and university, and it wasn't all about the music then, either.  The group's breakthrough album As Nasty as They Wanna Be and its curious companion album, As Clean As They Wanna Be, both came out in 1989, in my last semester of high school.  There was a lot to like about 2 Live Crew.  I liked the music, which had the imprimatur of my best friend, a musician with discernment decidedly superior to mine.  But 2 Live Crew's dispositive selling point for me was a tendency to precipitate First Amendment litigation.

A student journalist in the wake of Hazelwood v. Kuhlmeier (U.S. 1988), I was learning a lot about the First Amendment, sometimes in the classroom and sometimes in the vice principal's office.  Meanwhile, in 1989, 2 Live Crew, through its Skyywalker Records, sued the sheriff of Broward County, Florida, for declaratory relief from obscenity prosecutions over As Nasty As They Wanna Be.  And in 1990, Roy Orbison's record company sued 2 Live Crew's Luther Campbell, a.k.a. "Luke Skyywalker," for copyright infringement in As Clean As They Wanna Be's "Pretty Woman," a parody of Orbison's 1964 classic.  2 Live Crew prevailed on appeal in both cases, the former in the Eleventh Circuit and the latter in the U.S. Supreme Court. Reluctantly, Campbell did back down on the use of "Skyywalker" when the DJ stage name ruffled Lucasfilm feathers in trademark.

Lately, I've eagerly read more about 2 Live Crew and Luther Campbell in the latter's 2015 memoir, The Book of Luke.  The book is full of intriguing revelations from behind the scenes about the band and the author.

Campbell's recounting of his Miami youth is thought provoking on the subjects of desegregation and diversity.  Characterizing busing's mixed legacy, Campbell describes a black neighborhood, Liberty City, devastated by the dispersal of its youth, and, at the same time, a broadened cultural competence derived from school and sports with some of the first non-black people Campbell knew.  He writes:

Being on Miami Beach, even though the school was using us and just passing us along, I still got an education in how the world works outside the ghetto.  Most of the guys from my experience, the guys who never left Liberty City, they didn't learn the same things I did. ... They didn't see how to transform themselves into something more than that. ... 

Going to Beach High also made me realize that all white people aren't bad.  The system is bad, the game is rigged, but not all people are bad.  By going there and playing with white friends, Jewish friends, Cuban friends, it just broadened my horizons.  There are good people and bad people in every walk of life.  There are racist white people and prejudiced black people, and every individual is his own person.

He drills down further into the rigged game to describe the socioeconomic conditions that undermined the civil rights movement in the long term.  In plain language, Campbell explains:

Malcolm X and Stokely Carmichael and the Black Panthers, their whole message was about economic self-sufficiency, about how blacks needed to own and patronize our own businesses, to lift up and take care of ourselves.  And I believe that.  The problem was that the government had denied us our property rights for so long that we didn't have much to work with.  The small value of what we did own, our business district, they destroyed when they put that expressway through.  Most blacks didn't own any assets or property to borrow against.  Banks discriminated, so we didn't have access to business loans or financial capital that you need to run a business.

Campbell capably carries through with this theme of systemic racism to illustrate its impact on the music industry.  Nicknamed "Luke Skyywalker" for his Jedi-like mastery of the DJ table, Campbell and 2 Live Crew, each, were already successful acts when Campbell joined the band and brought it within the sphere of Miami's unique cultural mélange.  Rather than navigating the infamously insular and monopolistic world of white-owned record labels, Campbell created Skyywalker Records to be the band's own publisher.  He recounts a climate in the media business even more hostile than one might expect to the evolution of music by black artists:

The white executives didn't get us, or just didn't want us. But it was really the black executives, the ones who'd been brought up to run the R&B imprints, who tried to kill hip-hop at the start.  To them, rap was too black, too ghetto.  It reminded them of life in the streets, the world they'd spent their whole lives running away from.  They were caught up playing that respectability politics game for those white-owned companies.  They wanted to make R&B into upscale, sophisticated music, show how far blacks had come, show how we were becoming high class.  It was the same in the black media.  Black radio stations didn't call themselves black anymore.  They were "Urban Contemporary."  They barely gave rap any airplay at all, or if they did it was only in special shows on the weekends.  Ebony didn't put a hip-hop artist on its cover until 1991, twelve years after "Rapper's Delight" sold eight million copies.  The white folks over at Rolling Stone had Run-D.M.C. on their cover in 1986, five years ahead of Ebony.

Luther Campbell, 2017
(photo by David Cabrera CC BY-SA 4.0)

Contrary to rap's stereotype, new music was not about new lows in "nasty" for Campbell.  The dichotomous debut of As Nasty and As Clean in 1989 was in fact a label equivalent of how Campbell always had run his DJ business.  At least according to his own retelling in the book, Campbell worked hard to put on all-ages shows with security employed to keep out alcohol, drugs, and violence, and then to put on adult-restricted shows later at night.  The band proactively labeled its music for indecent lyrics, and Campbell personally communicated to distributors and retailers the admonition that under-age consumers should be permitted to buy only clean content.

Predictably, the dirty content received more media attention and generated more commercial success than the clean; certainly eighteen-year-old me was more interested in the former.  Yet in the harsh reaction of public officials to indecency, and in media ignorance of the band's efforts at social responsibility, Campbell saw more than mere market forces at work.  In 1988, Alabama record store owner Tommy Hammond was arrested on obscenity charges for selling the 2 Live Crew album Move Somethin' from behind the counter to an undercover police officer.  Campbell dates "[t]he legal war against hip-hop" to that arrest and explains further:

The cops, apparently, had been getting complaints from Christian fundamentalist groups about the sale of offensive and vulgar material, and the Alexander City sheriff Ben Royal was, I suppose, a real God-fearing, Bible-thumping, easily offended type of guy.

At first I wasn't even mad.  I was genuinely confused.  Dolemite and Skillet & Leroy and all these comedy records we were sampling, those had been around for years.  They were filthy as hell, real nasty, and nobody had ever tried to censor them.  Andrew Dice Clay was doing his stand-up act and putting out his albums at the same time we were, and his routines were just as raunchy as what we were doing.  Nobody was getting arrested for selling his albums.  What was going on?  My father and my uncle Ricky taught me a lot about racism and how it works, but I was about to learn a lot more. ...

Dice is white, you see, so he could say whatever he wanted.  Parents might protest him, and they did, but he was a white man making a lot of money for a white-owned corporation; nobody was going to take away his right to free speech.  All those old chitlin circuit albums we sampled, they were dirty, but white people never listened to them.  They didn't cross the color line, so nobody really cared. ... Nobody cared if we were corrupting young black minds with our evil jungle music. ... But Tommy Hammond's record store was the record store serving the white side of town.  2 Live Crew had done the one thing you're never supposed to do.  We were black men coming across the color line talking about sex.  We were black men in the company of whites, and we'd forgotten to lower our heads and shuffle away.

Campbell in the book goes on to trace his 2 Live Crew and Luke Records career through gang violence bleeding into the concert arena, stand-offs with law enforcement and protestors, and famous and less famous lawsuits.  He reflects ultimately on contented family life and the privilege of giving back to Liberty City.  I won't spoil all the fun; the ride is worth the cover price.

For my part, it's gratifying to better know the real Luke Skyywalker, both the Jedi knight who inspired me when I was a kid, and the Luther Campbell he became.  His tastes have changed, too: as he puts it in the book, a little less groupies and Hennessy, a little more football practice, fretting over SATs, and "raising hell about housing and education."  Every individual might be his own person, but there sure seem to be some universal truths to getting older.

Luther Campbell turns 60 today, December 22, 2020.  The book is Luther Campbell, The Book of Luke: My Fight for Truth, Justice, and Liberty City (Amistad 2015).

Revenge porn law can survive First Amendment scrutiny by requiring 'actual malice'

Last week a Tyler, Texas, appellate court struck the state’s criminal revenge porn law as fatally overbroad, so facially unconstitutional, under the First Amendment to the federal Constitution.  The ruling garnered headlines heralding the unconstitutionality of revenge porn law, which could have big implications in privacy law and policy nationwide—even ramifications for U.S. foreign relations.

However, the court’s ruling was not so broad as headlines have suggested.  In fact, the court gave wise and constructive feedback on what a revenge porn law needs to look like to pass constitutional muster—which it can.  It seems in the end that the Texas law was just not well drafted.  Accordingly, the revenge porn laws that have proliferated in the United States, now in 38 states (collected at Cyber Civil Rights Initiative), should be scrutinized and, if necessary, corrected.  (Constitutional problems with Vermont and Arizona laws were mentioned just today by the U.K. Register, here.)

The Texas case, Ex parte Jones, No. 12-17-00346 (Tex. Ct. App. Apr. 18, 2018), involved a criminal information against Jones under Texas Penal Code section 21.16(b), which criminalizes the “unlawful disclosure of intimate visual materials.”  The statute reads:

A person commits an offense if:

  (1) without the effective consent of the depicted person, the person intentionally discloses visual material depicting another person with the person’s intimate parts exposed or engaged in sexual conduct;

  (2) the visual material was obtained by the person or created under circumstances in which the depicted person had a reasonable expectation that the visual material would remain private;

  (3) the disclosure of the visual material causes harm to the depicted person; and

  (4) the disclosure of the visual material reveals the identity of the depicted person in any manner[.]

The statute, section 21.16(a), furthermore defines “visual material” broadly (“any film, photograph, videotape, negative, or slide or any photographic reproduction that contains or incorporates in any manner any film, photograph, videotape, negative, or slide,” as well as electronic transmission) and “intimate parts” specifically (““the naked genitals, pubic area, anus, buttocks, or female nipple of a person”).

The court’s First Amendment analysis was sound.  The court applied de novo review to test the constitutionality of a criminal statute.  The court rejected a narrow construction that would confine the law to mere obscenity, as stringently defined by federal precedent.  Because the statute is then a content-based restriction of expressive content, the court charged the government with the burden of rebutting presumptive unconstitutionality.  The State conceded at oral argument that the law must survive strict scrutiny, i.e., advance a compelling state interest and be narrowly tailored to do so.  Intimate privacy passes muster on the first prong, but the statute facially fails narrow tailoring.  The court acknowledged that overbreadth doctrine is “strong medicine”; nevertheless, the statute could not measure up.

The court illustrated the statute’s fatal flaw with a hypothetical, unattributed so presumably original, that seems drawn from a law school or bar exam:

“Adam and Barbara are in a committed relationship. One evening, in their home, during a moment of passion, Adam asks Barbara if he can take a nude photograph of her. Barbara consents, but before Adam takes the picture, she tells him that he must not show the photograph to anyone else. Adam promises that he will never show the picture to another living soul, and takes a photograph of Barbara in front of a plain, white background with her breasts exposed.

“A few months pass, and Adam and Barbara break up after Adam discovers that Barbara has had an affair. A few weeks later, Adam rediscovers the topless photo he took of Barbara. Feeling angry and betrayed, Adam emails the photo without comment to several of his friends, including Charlie. Charlie never had met Barbara and, therefore, does not recognize her. But he likes the photograph and forwards the email without comment to some of his friends, one of whom, unbeknownst to Charlie, is Barbara’s coworker, Donna. Donna recognizes Barbara and shows the picture to Barbara’s supervisor, who terminates Barbara’s employment.”

“In this scenario,” the court observed, “Adam can be charged under Section 21.16(b), but so can Charlie and Donna.”

Therein lies the problem: not necessarily as applied to Adam, but as applied to Charlie and Donna, who are ignorant of the circumstances under which the photo came to be.  Certainly Charlie, who received the photo from Adam “without comment,” might as well believe that Adam ripped the photo of a stranger from a pornographic website.  However indecent the photo, both Charlie and Donna have a First Amendment right to communicate the photo “downstream.”  Yet without Barbara’s consent, Charlie and Donna run afoul of the revenge porn law.  Given the ease with which persons can share visual images in the age of electronic and online communication, the court found “alarming breadth” in this potential criminalization of expression.  In First Amendment overbreadth doctrine, a facially overbroad criminal law must be ruled unconstitutional even if it might be constitutional as applied to the defendant before the court.

The court distilled the law’s flaws in two dimensions related to culpability.  Typically of a criminal prohibition, the statute requires intent.  But intent pertains only to the republication of the image.  The statute does not require that the actor have “knowledge or reason to know the circumstances surrounding the material’s creation, under which the depicted person’s reasonable expectation of privacy arose.”  Second, the statute does not require “intent to harm the depicted person,” or even knowledge “of the depicted person’s identity.”  Borrowing the language of civil law (meaning common law tort), one would say that the statute requires volitional intent, but not intent to commit a wrong or to cause an injury.

The requisite intent to survive constitutional challenge may be likened to “actual malice,” which is used in both civil and criminal defamation law to describe “knowledge of falsity or reckless disregard of truth or falsity.”  In the context of revenge porn, a constitutional law might require “actual knowledge of the depicted person’s reasonable and continuing expectation of privacy in the image, or reckless disregard of same.”  If Charlie knew the identity of Barbara, so might infer the circumstances under which the photo had been taken, then the State might at least allege recklessness.  Donna, who did know Barbara’s identity, might be charged.  But she should be entitled to defend upon a qualified privilege, borrowed again from common law defamation, to share information in the interest of a recipient or third party when the defendant should disclose according to general standards of decency.  A corrected statute would hold Adam accountable without a constitutional problem.

Also just last week, the Rhode Island legislature (my home state) passed a revenge porn bill (2018-H 7452A) that has the support of the Governor Gina Raimondo (AP).  Raimondo vetoed a revenge porn bill in 2016, objecting on free speech grounds (Providence Journal).  Her position now is bolstered by the Texas decision in Jones.  Beefing up the intent requirement is precisely one of the R.I. legislative fixes that brought the latest bill to fruition.  The Rhode Island bill requires that the defendant intentionally disseminated, published, or sold “[w]ith knowledge or with reckless disregard for the likelihood that the depicted person will suffer harm, or with the intent to harass, intimidate, threaten or coerce the depicted person.”

I still have qualms about extending the “reasonable expectation of privacy” (REP) standard—which is drawn from Fourth Amendment jurisprudence as a bulwark against improper state action—being extended into the realm of private criminal or civil liability.  REP is potentially much broader than the intimate-depiction definitions of revenge porn laws.  And criminalization and civil liability are not the same.  Even though criminal defamation is constitutional when qualified by actual malice, contemporary human rights norms discourage the criminalization of expression at all.

At the same time, I have argued in favor of evolving U.S. law to recognize downstream control of private information, in consonance with both American values in the information age and emerging global legal norms.  Revenge porn laws—as against Adam, to the exclusion of Charlie and Donna—are a modest step in that direction, which European observers will welcome of us.  We will have to remain vigilant to continue to protect freedom of expression in tandem with expanding privacy rights, especially in a time in which the latter at the expense of the former is the fashion.  Conscientious actors such as the Jones panel (Worthen, C.J., and Hoyle and Neeley, JJ.) and Governor Raimondo are doing well, so far.

Laughing with Lenny Bruce, from schmuck to conscience

 

Kitty Bruce cuts the ribbon on the Lenny Bruce archive at the Brandeis University Goldfarb Library.

There is indecent language in this post.

In the last week of October, Brandeis University hosted a conference, “Comedy and the Constitution,” celebrating the life and work of comedian Lenny Bruce (1925-1966).  The conference marked the accession in the Brandeis University Library of Lenny Bruce’s papers, donated by his daughter Kitty Bruce, who participated in the conference.  The program was organized by Professor Steve Whitfield in American Studies and Sarah Shoemaker in Goldfarb Library Special Collections.  Featured speakers included Christie Hefner, former chairwoman and CEO of Playboy Enterprises, and “outrage” comedian Lewis Black, known to many through his long-running Daily Show segment, “Back in Black.”

My own paper for the academic part of the program concerned free expression and communication regulation.  Specifically, I looked at Bruce's technique of repeating indecent words with the aim of disempowering them.  If one repeats fuck again and again, the tenth repetition doesn’t sting the ear as much as the first.  George Carlin was there at least once when Bruce was arrested for “obscenity” based on the use of discrete words.  There can be little doubt that the experience directly influenced Carlin’s famous “seven dirty words” routine.  This comedic tradition at least tracked a strengthening of free expression in U.S. culture and law—think “Fuck the Draft” on Cohen’s jacket, 403 U.S. 15 (1971)—and might moreover have been a precipitating force.  For better or worse, the power today that attaches to many favorites in the pantheon of bad words is not what it used to be.  Ruth Wajnryb observed in her 2005 book, Language Most Foul, “[N]owadays it takes several fucks to achieve what one lone fuck would have achieved ten years ago.”

The lodging of Bruce’s legacy at Brandeis is a good fit for a couple of reasons.  The university is named for Justice Louis Brandeis, an associate justice of the U.S. Supreme Court from 1916 to 1939.  Brandeis was a key contributor to modern First Amendment law.  In the wake of World War I, he laid the groundwork for a more vigorous model of speech protection than had been known in the prior century.  Even amid the Red Scare, Brandeis recognized that if freedom of speech means anything, then minority perspectives on politics must be protected, however distasteful to the establishment.

Brandeis also was the first Jewish member of the U.S. Supreme Court, an experience that informed his views on social justice and antimajoritarianism.  Judaism played a key role in the founding of (non-sectarian) Brandeis University and remains today an omnipresent part of the university’s social culture.  Bruce was a Jewish comedian, and his cultural experience shaped his comedy.  

A number of academic papers at the conference focused on the role of Yiddish in the comedy of Bruce and also in the wider tradition of Jewish comedy.  I was ignorant on this point.  But presenters made a compelling case that the Yiddish tongue is especially well suited to comedic devices such as double entendre and nuanced word play.  In broad strokes, the particular compatibility of Yiddish with comedy seems a function of the truism that people have always turned to comedy to relieve suffering.

Christie Hefner

In terms of political commentary, Christie Hefner traced a direct legacy from Lenny Bruce to the sharp witted comedy of The Daily Show and Last Week with John Oliver.  I think she’s right.  Jon Stewart and Stephen Colbert routinely scoffed at the notion that they produce news, despite serious research showing their influence on popular thinking about politics.  Stephen Colbert’s SuperPAC bits on The Colbert Report spoke volumes on the very real role of money in politics.  John Oliver eschews the label of journalist, but his work at HBO has at least raised awareness, if not effected reform, on critical social issues such as net neutrality.

Someone at the Brandeis conference pointed out that some of our attribution to Lenny Bruce of a desire to make the world a better place--by cursing of all things--has got to be a posthumous fiction.  I think that’s right too.  Bruce was just a person, not a legend.  He wanted to sustain himself with his flair for the funny, to fill seats at shows, and to take care of his family.  Arrests for obscenity--the more absurd the state's case, the better--were good for business.

I’m not troubled by any dissonance in the legend and the man who was Lenny Bruce.  The Old Testament is replete with the sea changes of unlikely messengers.

Lewis Black

Of turds and torts

<Warning: Vulgar language ahead!>

Lately I have been doing research on "bad language" in anticipation of the Lenny Bruce conference that will dedicate his archive to Brandeis University libraries (see Comedy and the Constitution, and join us on October 27-28!).  A couple of sources have taught me that the vulgar word "turd" shares an origin with the legal term "tort."  As explained by Professor Geoffrey Hughes in his Encyclopedia of Swearing (2006), page 467:

TURD. This ancient term has followed the same basic semantic route historically as shit, being first recorded in Anglo-Saxon times in a plain literal sense, leading to various metaphorical extensions of coarse abuse from the medieval period onward.  Etymologically the word turns out to be a distant relative of legal tort, both rooted in the concept of being twisted or crooked.

So the next time I'm told, "You're full of shit," I will say, "Why, thank you.  I am indeed a torts professor."

Now that's a savory re-tort.