Mariah Ehr

Essay #2

11/21/06

 

            The case of “The Estate of Bill Davidson v. Tupac Shakur, Time Warner” should not have been brought to court and should not have lasted for five years.  The claims the Davidson family brought were easily disregarded by common sense and past cases.  The idea that the Tupac’s album, “2Pacalypse Now” should lose its first amendment right because of obscenity, fighting words, defemation of police officers, and incited imminent illegal conduct were unsound.  All four of the Davidson’s reasons for why “2Pacalypse Now” should lose its first amendment rights were also turned down.  After studying this case it can easily be seen that the tests used to determine if speech should lose its first amendment rights are too subjective to be fairly used in court.  The culture of fear of rap music that has been created in society most likely had a part in the estate of Bill Davidson decision to bring Tupac Shakur to court.    

In April of 2002, Officer Bill Davidson pulled over Ronald Howard for an expected traffic violation.  Howard was actually in a stolen car at the time.  During the traffic stop, Howard fatally shot Officer Davidson.  Howard was listening to the album, “2Pacalypse Now” by artist Tupac Shakur before and during the incident. Howard was charged for Davidson’s murder and in an attempt to not be given the death penalty; Howard claimed that “2Pacalypse Now” made him kill Officer Davidson.  This claim did not work as Howard was given the death penalty.  The family of Bill Davidson followed Howard’s idea by taking civil action against “2Pacalypse Now.” (The Estate of Bill Davidson v. Tupac Shakur, Time Warner; p.3)

            The family of Bill Davidson claimed that the album should not have first amendment rights and therefore Tupac Shakur and Time Warner should be responsible for the violent words on the album that caused Officer Davidson to lose his life.  The Davidson Estate made their claims based on the idea that Tupac’s lyrics included words or ideas that were obscene, were considered fighting words, that defemated peace officers and that incited “imminent illegal conduct.”

            The trial of The Estate of Bill Davidson v. Tupac Shakur went on for five too many years when considering the position the Estate of Bill Davidson took and the evidence they presented.  The claims made by the Davidson’s were either easily disregarded by looking at past legal cases or were completely based on opinion.  The courts are an objective place; it is ridiculous that so much subjective talk took place in this case.  The Estate of Bill Davidson made other claims against Shakur on top of the first amendment issues.  The estate tried to show that it was somewhat obvious that the lyrics of “2Pacalypse Now” would incite violence in a listener.  They backed up this claim by entering articles as evidence that were published after Davidson’s death that showed that Tupac’s words were violent.  However, these articles hold no power in the trial as they were written about songs that were produced by Shakur after “2Pacalypse Now” and after Ronald Howard killed Davidson; there was no way he could have read them.  The estate then tried to sue Shakur for product liability regarding “2Pacalypse Now.”  They claimed that they were harmed because of ideas that were on the product; Tupac told Howard to kill Davidson because he was a peace officer and so the family was hurt.  However, by law, product liability refers to a physical product not ideas on it.  So, for this to hold up, the Davidson’s would have to show that Howard somehow used the physical CD or tape in killing Officer Davidson.  Throughout the five year trial, many past cases were looked at to show how a law should be handled in this trial.  Over and over again, the Davidson’s claims were turned down.  One example of this that should have wrapped up the entire case was with regards the idea that Tupac Shakur and Time Warner could not have “reasonably foresee(n) that distributing 2Pacalypse Now” would lead to violence ( The Estate of Bill Davidson v. Tupac Shakur, Time Warner; p. 14).”  This idea was backed up in multiple past cases including Sakon v. Pepsico. Inc; when the company was not held liable when a child imitated a stunt seen on a commercial; and McCollum v. CBS Inc; no liability was held after a person committed suicide after listening to Ozzy Osbourne’s “Suicide Solution.”  Even after all of this, the court decided to go ahead and look at the first amendment rights issue that the Estate of Bill Davidson had claimed. (The Estate of Bill Davidson v. Tupac Shakur, Time Warner)

            According to the Ward v. Rock against Racism trial, “Music, as a form of expression and communication, is protected under the first amendment right (The Estate of Bill Davidson v. Tupac Shakur, Time Warner; p.16).”  However, this first amendment right is not always guaranteed if the speech in question falls under one of the groups not covered by the first amendment.  The types of words not protected include obscene speech, defamatory invasions of privacy, fighting words, and words that are like to produce incitement. 

In order for “2Pacalypse Now” to be considered obscene, it must fulfill the three parts of the Miller Test; which were put together from a past case on obscenity, Miller v. California.  The first factor of the test that must be fulfilled is that the average person that holds the average community standard must find the work in question to appeal to a prurient interest; a prurient interest being described as a “shameful or morbid interest in nudity, sex, or excretion (The Estate of Time Warner v. Tupac Shakur, Time Warner; p.18).”  This factor has nothing to do with the case at hand.  “2Pacalypse Now” may have violent lyrics but in no way does it appeal to the prurient interest; sexual conduct is not prominent on the album.  The second factor of the Miller Test again depends on community standards, but on what could be described as blatantly offensive and that describes sexual conduct that is against state law.  Again, nothing extremely sexually offensive is included in the lyrics of “2Pacalypse Now.”  The final factor of the test that must be fulfilled is that the piece in question lacks artistic value.  “2Pacalypse Now” is a musical album.  It is full of songs that are musical pieces; music is art. (The Estate of Bill Davidson v. Tupac Shakur, Time Warner; p.18)  There is no way that Tupac’s album could fulfill not having artistic value.  Just because someone has the opinion that rap is not music does mean it is a universal sentiment.  The Miller Test should not have been used in this trial and it is questionable if it should be used at all.  This trial was never based on sexual lyrics.  It was based on violent lyrics that supposedly caused the death of Officer Bill Davidson.  According to the Miller Test, straight up violent lyrics are not considered obscene; the use of the Miller Test should not have been considered.  Overall the test is too subjective for what should be the most objective place in the country.  Who decides who the average person in a community is and why should they get to speak for a diverse group of people with mixed opinions?  In this case, the person that is decided as the average community member could make a world of difference in the final outcome.  The opinion of the middle aged woman on one side of town will differ greatly from the opinion of the person on the other side of town who is secretly a hip hop fan. This idea is well put in the article, “Discouraging Objectionable Music Content: Litigation, Legislation, Economic Pressure, and More Speech;” “the term obscene represents one of the broadest (and murkiest) areas of the U.S. legal system.  Accurately defining the word remains a socially impossible task due to each individual’s variable realm of tolerance (DiLeonardo, Dee; p.3).” 

 The Estate of Bill Davidson also claimed that “2Pacalypse Now” should lose its first amendment rights because there were words of defamation against Bill Davidson as a police officer on the album.  However, in order for something to be considered slander it must be an oral statement that is false, published to a third party, and refer to an ascertainable person (The Estate of Bill Davidson v. Tupac Shakur, Time Warner; p.19).  Officer Bill Davidson was never specifically mentioned in any of Shakur’s lyrics; so the album fails being defamatory as there is no referral to an ascertainable person.  The third reason that the Davidson’s used to remove the rights of the album at question was the supposed use of fighting words in the lyrics.  A fighting words is considered to be “one by its very utterance inflicts injury or tend to incite an immediate breach of the peace (The Estate of Bill Davidson v. Tupac Shakur, Time Warner; p.20).”  Tupac may have vulgar language in his lyrics, but not once does he ever tell his listeners to go out and injure someone or cause uproar in the peace.  Moreover, the fighting word test applies to a situation when two people are going back and forth with abusive words, causing an immediate out lash by one of the parties.  Because Tupac was not sitting in Howard’s car telling him to kill Bill Davidson, the fighting words concept does not apply here.  Because the fighting words did not apply to this situation, the Brandenburg test was used on the album.  In order to find speech unconstitutional under Brandenburg, the lyrics must be likely to produce “imminent illegal conduct (The Estate of Bill Davidson v. Tupac Shakur, Time Warner; p.21-22).”  The Davidsons were unable to provide proof that Shakur and his producers had the intention of making their listeners act violently immediately after hearing a song and thus the Brandenburg test failed along with all its predecessors.   

            My tolerance for violent and inappropriate lyrics in music is probably higher than a lot of peoples, but I am still bothered by some of the extreme cases of these kinds of lyrics; there are songs I would not let my kids someday hear.  However, the first amendment right of freedom of speech should not be taken away from these lyrics unless there is an extreme case of the potential for harm; which again leaves the courts having to decide what an extreme case would be.  In the case of the lyrics in “2Pacalypse Now,” it should not have gone to court; it is far from an extreme case.  The best case scenario for testing when lyrics should lose their first amendment rights, based on obscenity, would be a test that is objective unlike the Miller Test.  As stated earlier, the three factors of the test are based on the average community member’s opinion.  But deciding which community members’ opinion to use is a toss up in the courts; there is no fair way of choosing this role.  Also, the best test should be able to be used over an extended period of time.  The Miller Test changes with the changing times of the community.  For example, fifty years ago Elvis’ gyrating hips were considered obscene on “The Ed Sullivan Show;” today that means nothing (DiLeonardo, Dee; p.3). 

            Taking away the first amendment rights of rap music would subsequently silence an entire culture of people.  Many “gangsta rap” lyrics are “more than a pressure release, (they) are a reflection of horrendous suffering, pain and frustration of ghetto life in the hood (Archim Rodgers).”  This idea has created a culture of fear in middle-class America; people are scared of what they do not understand (Tricia Rose, p.104).  This can also be seen when non-rap genre lyrics are compared to rap lyrics.  Many famous rock, country and other genre music contain violent and demeaning language.  Why was Ice T’s “Cop Killer” attacked while Eric Clapton’s “I Shot the Sheriff” left alone? 

            Only the family of Bill Davidson can say exactly why they brought Tupac Shakur and Time Warner to court.  While, I am sure they wanted justice for Officer Davidson, I feel that society’s fear of rap music also had a huge factor.  This case was dragged out too long and could have easily been thrown out.  By looking closely at how the court decided if “2Pacalypse Now” should lose its first amendment rights, it can be seen that an alternative to the Miller Test needs to be created; it is too highly based on opinion.  “The Estate of Bill Davidson v. Tupac Shakur, Time Warner” is a good example of what happens when the mainstream culture tries to silence a minority’s ideas.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

References

 

Dileonardo, Tracy, and Juliet Dee. "Discouraging Objectionable Music Content: Litigation, Legislation, Economic Pressure, and More Speech." Communication and Law. 14 Nov. 2006.

Rose, Tricia. Black Noise; Rap Music and Black Culture in Contemporary America. Middletown, Conneticut: Wesleyan UP, 1994.

The Estate of Bill Davidson V. Tupac Shakur, Time Warner. No. V-94-006. 14 Nov. 2006 <http://web.lexis-nexis.com.floyd.lib.umn.edu/universe/>.