State high court strikes down law regulating sale of ‘erotic sound recordings’

WASHINGTON — The Washington Supreme Court in Olympia in mid-April struck down as unconstitutional the state’s law that regulated the sale of “erotic sound recordings.”

The 1992 law was challenged by a coalition of musicians including Nirvana, the rock band headed by the late Kurt Cobain.

The law enabled prosecuting attorneys to seek judicial hearings to determine whether recordings were “erotic,” meaning “the dominant theme of which taken as a whole appeals to the prurient interest of minors in sex; which is patently offensive because it affronts contemporary community standards relating to the description or representation of sexual matters or sado-masochistic abuse; and is utterly without redeeming social value.”

Such recordings had to add an “adults only” label and could not be sold to minors.

The Supreme Court held that although the statute validly defined an obscenity standard for minors, the procedures specified for enforcing the ban violated due process rights.

The court found that the five days’ notice provided before the initial hearing did not provide enough time to defend a recording alleged to be “erotic.” The court added that although the results of the hearing bind all record dealers and distributors in the state, only one dealer or distributor is notified of the hearing.

Another failing was the law’s provision that a civil finding of a recording’s erotic character could not be challenged at a subsequent criminal trial for the sale of the material.

(Soundgarden v. Eikenberry; Musical Counsel: Debra Kristensen, Seattle)

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