Thursday, May 20, 2010

Kagan's RIAA brief revealed: 'As Nasty As They Wanna Be' fails to 'physically excite,' 'arouse'

The truth can finally be known: Elena Kagan is not "turn[ed] on" by 2 Live Crew. Not even by the Crew's 1989 masterwork As Nasty as They Wanna Be, which included such classics as "The Fuck Shop" ("There's only one place where we can go/Where the price is right just to fuck a ho."); "Dick Almighty" ("It's 15 inches long, eight inches thick/Last name almighty first name is dick."); and "If You Believe in Having Sex" (just click the damn link yourself; this is a family blog). For, as Kagan boldly proclaimed in a 1990 amicus brief she drafted for the RIAA, arguing that the album was not obscene under the three-prong Miller test:
Nasty does not physically excite anyone who hears it, much less arouse a shameful and morbid sexual response.
"Anyone"? Really??? (Not even her kinky BFF?)

Kagan (who presumably falls within the category of "anyone") may not be "excite[d]" or "arouse[d]" by the Crew's oeuvre, but she does, with a straight face, argue that it contains "serious artistic value." Oddly, though, she apparently couldn't find any examples of such in the album itself; she cites none. Rather, her brief, written while she was an associate at Williams & Connolly, relies on Leonard Bernstein for the proposition that all music has "inherent value" (with props to Justice Scalia for noting that "ratiocination has little to do with esthetics"). (All music has value; Nasty is music; therefore Nasty has value. Q.E.D.!) She also notes that at least one song has political value; apparently "Dick Almighty" ("They took a dick from California, transplanted that mutha fucka to Washington DC and it fucked the nation") was a reference to none other than our 37th president, Richard Milhous Nixon. Who knew??

Whatever one may think of Kagan's characterization of Nasty, one can't argue with success; the 11th Circuit bought her arguments. See Luke Records, Inc. v. Navarro, 960 F.2d 134 (11th Cir. 1992) (reversing district court's ruling that the album was obscene, see Skyywalker Records, Inc. v. Navarro, 739 F. Supp. 578 (S.D. Fla. 1990)).
RIAA amicus brief in Luke Records, Inc. v. Navarro

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