Monday, May 17, 2010

2 Live Crew and Elena Kagan: 7 Degrees of Separation

President Obama’s SCOTUS nominee has been a hot topic, but PolitiPage is blogging that before becoming Dean of Harvard Law, 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.”

Last year, Kagan identified the 2 Live Crew case as one of the 10 most significant matters she’d handled during her brief practice. Foreshadowing her later academic focus on the First Amendment, four of the other cases involved media clients
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