FT. LAUDERDALE, Fla. — Prosectors and defense attorneys in the closely watched 2 Live Crew obscenity case will continue efforts to pick a jury today, drawing panelists from a pool of registered voters that is predominantly white, middle-aged and female.
The defense is claiming that the prospective jurors do not adequately represent Broward County and cannot judge a black, inner-city rap group. The state is calling the racial issue a red herring that distracts from the issue at hand: Whether the rappers performed an obscene show in June at a Hollywood, Fla., nightclub.
Preliminary questioning of the first 25 prospective jurors--three of whom were black--revealed that while most had heard of 2 Live Crew, almost none had much idea about the specific language of the group's songs nor of the free-speech issue on which the defense plans to focus.
"Where," asked Bruce Rogow, attorney for defendant Luther (Luke) Campbell, 2 Live Crew's leader, "are the 18-year-old black males I want on the jury?"
Rogow has petitioned the judge to declare the state's jury-selection process unconstitutional in this case, since an essential element in deciding on obscenity is measuring the alleged crime against community standards. Circuit Judge June LaRan Johnson said she would rule on his motion once a jury is seated.
Last week, a record store owner who sold 2 Live Crew's "As Nasty as They Wanna Be" rap album was convicted on obscenity charges. This week, the group itself is on trial for obscenity--not for making the album, but for performing the songs live.
To be decided in this courtroom debate are fundamental issues over what is protected by a constitutional right to free speech. Assistant State Atty. Leslie Robson argues that the right to free speech is not absolute and that the group cannot say or sing anything it wants with impunity.
The opposing argument comes from Rogow. "It's First Amendment, freedom to provoke, challenge and shock," he says. "Most prosecutors and sheriffs don't waste their time on this stuff."
This trial is drawing intense interest, especially from performers, the music industry and those who think that artists often transcend the bounds of free expression. "The entire nation, the whole world, is watching this case. The notion that pure words can be criminal in this society is contrary to everything we learn in high school civics," said Robyn Blumner, executive director of the American Civil Liberties Union of Florida. "This case, along with that of (record store owner Charles) Freeman and (Cincinnati art museum director Dennis) Barrie, is the triple play of censorship."
Jury selection began Monday, but was quickly interrupted--first by a profane outburst by Campbell in objection to Judge Johnson's reading of song lyrics to prospective jurors. The proceedings were stopped again when prosecutors asked Johnson to disqualify herself from hearing the case because 15 years ago she had been a student of Rogow, a law professor at Nova University in Ft. Lauderdale. Johnson refused, and on Tuesday Circuit Judge George Brescher, hearing the prosecution's appeal, upheld her refusal.
Rogow and Campbell have charged that Broward County's prosecution of the group and its music is based on racism and an inability to understand that the lyrics--lewd rhymes that describe sex acts--are not to be taken literally. Many listeners have complained that the Crew's songs promote violence toward women.
"They can't understand what this is about," says Campbell, who, like the other band members and the record store owner, is black. "People who judge us should be the ones who know us. We're from two different phases of life. It's just fact."
Prosecutors Pedro Dijols and Robson have denied that the case is a racial matter or that First Amendment guarantees of freedom of expression are the central issue. "The issue is whether or not the album is obscene," said Dijols, who is black, "and obscenity is not protected by the First Amendment."
Campbell and band members Chris Wongwon and Mark Ross were arrested after a June 9 nightclub performance in nearby Hollywood, three days after their "Nasty" album was declared obscene by a federal judge.
The three were charged with giving an obscene performance by performing songs from the album, including the hit "Me So Horny."
The day before the band was arrested, Freeman was charged with selling an obscene album after an undercover sheriff's deputy bought a copy of "As Nasty as They Wanna Be." Last week, an all-white jury found him guilty, marking the first time in U.S. history that anyone has been convicted of selling an obscene musical work. He is to be sentenced Nov. 2.
The prosecution is expected to open its case against the group by playing a clandestine recording of the June 9 performance made by undercover police--if the court agrees that the tape is clear enough. On Tuesday, large pole-mounted speakers were set up, one on each end of the jury box.