Censorship and Liability In Waller v. Osbourne and Vance v. Judas Priest
Free Speech is not absolute and has never been absolute, there are exceptions that are narrow and conscientious, speech that is obscene, libelous, or incitement of imminent lawless action all fall within the exceptions. When discussing limitations on free speech on media and artistic expression, the cases that arise are often rooted in prejudice or moral panic. It would be ignorant to neglect the effect that the media has on people: it is a multi-billion dollar industry based around making people feel things. But we cannot simply shift liability for any actionable wrongdoing onto media content. I do not think there should be any liability found on the side of music producers in cases discussing musical lyrics, intention, and subliminal stimuli, specifically in the cases of Waller v. Osbourne and Vance v. Judas Priest.
In the case of Waller v. Osbourne, in January of 1986, a teenager from California, John McCollum, committed suicide while listening to the song “Suicide Solution” by Ozzy Osbourne. His parents raised a civil suit against Osbourne, alleging that the song’s lyrics caused the suicide of their son, Osbourne was later cleared and not found responsible (Waller v. Osbourne).
In the case of Vance v. Judas Priest, Raymond Belknap and James Vance shot themselves in the head after drinking, smoking and listening to Judas Priest's album 1978 Stained Class. Belknap died and Vance lived. Their families took Judas Priest to court for a $6.2 million lawsuit, claiming that Priest's song, “Better by You, Better Than Me” contained subliminal messaging that lead the two men to attempt and commit suicide. In Judas Priest’s song, the phrase at issue for subliminal stimuli was the phrase “do it”, and isolated, this phrase does not mean anything at all without the explicit indication of what “it” is. Additionally, this phrase is not present anywhere explicitly in the printed lyrics of the song, or easily heard upon regular listening. The plaintiffs had to argue that there was a preexisting inclination to suicide and the media triggered it. The band was found not guilty (Vance v. Judas Priest).
In both of these cases, subliminal messaging was argued by the plaintiffs as the main driver of harmful speech. As stated in Vance v. Judas Priest and cited in Waller v. Osbourne, subliminal messaging is emphasized and argued by the plaintiffs, as subliminal messaging is not protected under the freedom of speech because subliminal stimuli do not constitute speech, and this manner of speech would constitute an invasion of privacy, and therefore is not protected. But this subliminal messaging could not be proven and was dismissed from the courts, it was just an (unsuccessful) means to shift liability. Censoring artistic expression and imposing liability onto it baselessly is unconstitutional and especially harmful to expression and views outside of mainstream, white, and Christian culture. When determining liability, it can be far more comforting to the families of those who committed suicide onto another party, rather than taking on that burden themselves. Waller v. Osbourne and Vance v. Judas Priest were both product liability cases, plaintiffs arguing that the shock content released in music was a defective product that allegedly caused harm. Both defences denied putting any subliminal messaging in their music and also argued that subliminal stimulation cannot fully compel behaviours, especially ones as severe as suicide (Waller v. Osbourne and Vance v. Judas Priest). Shifting liability to a single piece of media is irresponsible, baseless, and neglectful of all other external effects that may play a role in a suicide.
The Parental Advisory label is a warning label introduced by the Recording Industry Association of America in 1985 as an added measure to warn of explicit content in music following a congressional hearing under the United States Senate on Contents of Music and the Lyrics of Records (Crabtree). In this hearing, music artist, John Denver summarized his view on the censorship of music in a way that reflects my own views on the topic by stating, “discipline and self-restraint one practice by an individual, a family, or a company is an effective way to deal with this issue. The same thing, forced on a people by the government or worse by a self-appointed watchdog of public morals, is suppression and will not be tolerated in democratic society.”(Senate Commerce, Science, and Transportation Committee). While heavy metal music is often sensationalized and often praised by fans for being outlandish, warning labels help to cover the duty of care to restrict harm. People have the ability to shield themselves from content that may be disturbing to them personally, but it should not be the responsibility of the artists under the instruction of the government to shield their language unless it explicitly incites harmful imminent action.
The Brandenburg test is a two-part test that is used to evaluate the application of law affecting expression. It states that speech can be censored if its purpose is to incite criminal activity imminently, and that in doing so, it is likely to incite such action. An alternative method to this test can be applied by balancing the value of the speech and the magnitude of harm, probability of harm, and balance of hardships that favour the plaintiff (Kunich 1230). People have free will, and it is unconstitutional censorship to block any language that does not fall under these stipulations from being publicly released. A lawsuit can only be justified as crime is a direct consequence of expression. In the cases discussed, imminent lawless action could not be a reasonably expected consequence of publicly releasing such artistic expressions. There are countless factors that would be at play when consuming media content such as lyrical interpretation, intended tone of the music, and metaphorical meaning produced that are far too subjective to limit to a single expected consequence.
J.S. Mill defends complete freedom of thought and discussion, limited only if a person is to threaten harm to another (Mill). The aforementioned cases are rooted in fear and prejudice surrounding heavy metal music that arose to popularity through its shock value. If a plaintiff is to shift blame for a crime onto a single song or album, are we to neglect the effect of every song they have ever consumed? What about any other media, film, radio, books? One could manufacture a case derived from any piece of media from the bible to a children’s television program if one is to shift liability to speculated subliminal messaging. Through many cases like the ones mentioned, there is automatically an assumed correlation between violence in media and violence in actuality- especially so within the narrative of heavy metal music. It is nearly impossible to prove beyond a reasonable doubt that there is a direct connection between the two without considering other influencing factors.
Crabtree, Chloe-Rose. “The Dirty History of Parental Advisory Labels.” Culture Trip, The Culture Trip, 7 Aug. 2018, theculturetrip.com/europe/united-kingdom/england/london/articles/the-dirty-history-of-parental-advisory-labels/.
Kunich, John C. “Natural Born Copycat Killers and the Law of Shock Torts.” Washington University Law Quarterly, vol. 78, no. 4, 2000, doi:10.2139/ssrn.274133.
Mill, John S. On Liberty. London: John W. Parker and Son, West Strand, 1859.
Nevada District Court, Second Judicial District, Washoe County. Vance v. Judas Priest. 24 Aug. 1990.
Senate Commerce, Science,and Transportation Committee. “Rock Lyrics Record Labeling.” C-Span, 19 Sept. 1985, www.c-span.org/video/?69484-1%2Frock-lyrics-record-labeling.
US District Court for the Middle District of Georgia. Waller v. Osbourne. 6 May 1991, law.justia.com/cases/federal/district-courts/FSupp/763/1144/1585653/.