"It does not look good for freedom of expression," said Trish Heimers, spokeswoman for the Recording Industry Association of America (RIAA), after Friday's passage in Louisiana of the country's first mandatory record-labeling bill. Now awaiting Gov. Buddy Roemer's signature or veto, the bill requires warning labels on albums containing explicit lyrics, holds artists, producers, manufacturers and distributors liable for failing to label music deemed "harmful to minors," and restricts sale of labeled music to minors.
Floyd Abrams, an expert on constitutional law, called the vote part of "an increasingly evident pattern of behavior around the country by individuals who simply cannot tolerate others with different tastes and orientations. For the state to start down the labeling road at the same time that other states are starting to enforce obscenity laws in areas which have never before seen any prosecution -- Robert Mapplethorpe in Cincinnati, 2 Live Crew in Florida -- indicates that we may be in for challenging days in terms of protection of First Amendment rights."
Abrams noted that while states have broad powers to protect minors, "what they can't do is deprive adults of constitutionally protected material in the guise of protecting minors, and what they cannot do as well is to make it so difficult for adults to purchase material that they are unlikely to do so." While the sale of pornography to minors is constitutionally restricted and can lead to prosecution, Abrams says it's "quite another thing to say that in the name of protecting minors, a whole system of regulations can be adopted."
David Leibowitz, counsel for the RIAA, says that while the government has a legitimate interest in protecting children, the bill will "limit what's sold in Louisiana to what children would have as acceptable material because an adult may not want to buy an album if it's stickered and some stores may choose not to carry stickered product" as a way of avoiding legal confrontations.
Ironically, the Louisiana bill started moving a week after the RIAA unveiled its industry-standard label for voluntarily identifying recordings with explicit lyrics. State Rep. Ted Haik, who introduced the legislation, acknowledged the new RIAA sticker, but joined other legislators in criticizing it for not being descriptive enough. Noting problems with past industry compliance on voluntary stickering, Haik said he was really going after the National Association of Independent Record Distributors (NAIRD), 400 small labels that are not a part of the RIAA and account for less than 10 percent of the industry's annual $6.5 billion in sales. They include the heavy metal and rap labels most likely to produce explicit material.
Calling them "outlaw labels," Haik assailed them as "the ones with the trash lyrics. They're the real culprits and they've said they're not going to label, so there is no consistency, no written agreement, and that is the purpose of this bill, to require the industry to start policing itself or they won't be selling records in Louisiana." In late May, NAIRD's board of trustees declined to endorse the RIAA sticker, though it did recommend that if NAIRD companies decide to sticker an album, they use the new RIAA standard label.
Haik said the bill received a last-minute boost from the American Medical Association. At its recent annual convention in Las Vegas, the AMA declared its concern about the impact of destructive themes in certain kinds of rock music, though it threw its support behind voluntary record labeling by the music industry.
"Just as we got into tobacco and we got into alcohol, we should be in all aspects of preventive medicine," said James S. Todd, executive vice president of the 290,000-member AMA, the nation's largest physicians group. A statement adopted by the AMA's 436-member House of Delegates reads: "The vivid depiction of drug and alcohol use, suicide, violence, demonology, sexual exploitation, racism and bigotry could be harmful to some young people, especially vulnerable children and adolescents who are socially alienated from traditional value systems and positive support groups."
The AMA urged the music industry to label its goods, particularly heavy metal, punk rock and rap. Measures accompanying the statement call on the entertainment industry to "exercise greater responsibility in presenting music to young people" and urged parents to monitor the concerts their children attend, the music videos they watch and the albums they buy, and to discuss the music with their kids. Doctors called upon their colleagues to be aware of destructive themes in rock music and to work to heighten awareness among patients and in their communities.
After Friday's vote, Haik said that Louisiana's association of district attorneys, which had previously endorsed the bill, would present it at the upcoming national district attorney's association convention, and that the state's attorney general, who had analyzed the bill before the vote and declared it "constitutional and laudable," would present it at the upcoming national convention of attorneys general -- which could spell further trouble for the music industry.
Heimers of the RIAA points out that while lyric labeling bills in 20 of 21 states had been either defeated, withdrawn or put on hold while the RIAA's new voluntary labeling system had a chance to prove itself, six states are still considering mandatory labeling legislation for 1991: Alaska, Illinois, Michigan, Minnesota, Nebraska and New Mexico.
Even before the Louisiana vote, Capitol Records became the first label to promise legal help to store operators threatened with arrest for selling Capitol recordings that bear labels warning consumers of sexually explicit lyrics, and it did so by providing yet another sticker. This one reads: "Retailers: Capitol records vehemently opposes censorship of artistic expression and will assist in the defense of any attempt to stop the legitimate sale of this LP-CD-cassette." The first Capitol records carrying both the voluntary industry label ("Explicit Lyrics -- Parental Advisory") and the retailer notification label are by rappers C.P.O. and King Tee and the "Return of Superfly" soundtrack, scheduled for release in August.