Tuesday, May 18, 2010

Kagan confirms: I represented the RIAA

It's been reported before, but in her just-released Senate Judiciary Committee questionnaire (p. 193), Supreme Court nominee Elena Kagan confirms that she once represented the RIAA while in private practice. The case was Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992), an appeal of a district court's ruling that The Two Live Crew's album As Nasty As They Wanna Be was obscene. As McClatchy reported:

Before Harvard, there was 2 Live Crew.

The hip-hop group hit the spotlight in 1989 with its album "As Nasty As They Wanna Be," which included the single "Me So Horny." Nick Navarro, the sheriff of Florida's Broward County, thought it went too far.

"I'm a freak in heat, a dog without warning," the rappers sang. "My appetite is sex, 'cause me so horny."

U.S. District Judge Jose Gonzalez agreed with Navarro that the song was obscene, and 2 Live Crew appealed.

The group's attorney, Bruce Rogow, said in an interview that he encouraged the Recording Industry Association of America to file a friend-of-the-court brief. The association hired Williams & Connolly, and Kagan drafted the brief, later explaining that she "stressed the difficulty of finding music obscene under prevailing constitutional law."

In 1992, a three-judge panel of the 11th U.S. Circuit Court of Appeals unanimously threw out the trial judge's decision.

"It was nicely done, and it was certainly helpful," Rogow, who's a professor at Nova Southeastern University's law school, said of Kagan's brief. "But I think the outcome would have been the same regardless."

How long before the usual suspects' heads start exploding?


  1. Interesting. the headline is a red herring, but the more I hear about Kagan, the more I like her. she is pro-fair use, pro-expression/anti-censorship, and anti-jack thompson. whats not to like?

  2. I agree with anonymous; does filing an amicus brief constitute representation? Guilty by association? Did the RIAA hire Kagan to sue downloading infringers?

  3. @Chalmers:

    Kagan absolutely represented the RIAA; the RIAA was her (or, technically, Williams & Connolly's) client in the Luke Records case. The fact that the RIAA was an amicus in the case rather than a party doesn't change that.

    No, the RIAA did not hire her "to sue downloading infringers." She worked at Williams & Connolly 1988-91, about a decade before "downloading infringers" even existed.

  4. Thanks Ben, though I respectfully disagree with your first point, the salience of which comes at the expense of sensationalism. (and I do not mean that as a personal affront)

    And you did answer my second question, thank you - I didn't know the time period. If could provide me with a more eloquent way than "downloading infringers" to refer to those individuals who infringe via digital phonorecord delivery I would appreciate it - you're the expert, so...Cheers.

  5. How long before the usual suspects' heads start exploding?



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