A Spin Class Slip-Up Leads to a Lesson on Obscenity
In a recent live Peloton class, instructor Denis Morton unintentionally played an explicit remix of “Oochie Wally” by Nas and Bravehearts, believing it was the clean version. This mix-up not only caused a stir among riders but also offers a unique opportunity to delve into a crucial aspect of U.S. Constitutional Law, which is particularly relevant for bar exam students—protections under the First Amendment and the concept of obscenity.
Obscene speech can be regulated by the government under the Miller Test, which came out of the 1973 Supreme Court decision in Miller v. California. This case established a standard for determining whether speech or materials are obscene, and thus, not protected by the First Amendment. This three-prong test is essential for bar exam takers to understand, as it delineates the fine line between protected explicit content and non-protected obscene materials.
Prong 1: Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
This prong examines the work's impact on the average person, using a community standard, which can vary significantly between different geographic regions.
Prong 2: Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by applicable state law.
This prong requires the material to be described in a manner that is patently offensive under the law, focusing on how explicit or graphic the portrayal of sexual acts is.
Prong 3: Whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.
The third prong is sometimes seen as the most subjective, requiring a determination of the work's value or contribution to society, regardless of its offensive content.
To summarize, expression is obscene if: (i) it appeals to Prurient interests; (ii) it is patently Offensive; and (iii) taken as a whole, the material lacks serious literary, artistic, political, or scientific Value. The first two prongs are examined under a community standard; the last prong is examined under a national standard.
I recommend the mnemonic device P-O-V to help you remember the three requirements of Prurient interests; patently Offensiveness; and Value. I also recommend the mnemonic device L-A-P-S to help you remember the kinds of values protected: serious Literary, Artistic, Political, or Scientific values.
Given the nature of the lyrics of "Oochie Wally," it's not appropriate to quote them here. However, they can easily be found online if you search for the lyrics of "Oochie Wally" by Nas and Bravehearts. This will give you a clear view of the explicit content that has contributed to the song's controversial status.
While the song played in Morton's class was explicit, it doesn't meet the criteria for obscenity under the MillerTest. The song, like most music, is considered protected artistic expression. Yes, it contains explicit content, but not to the degree that it would fail all three prongs of the Miller Test—most notably, it does not lack serious artistic value, nor does it depict sexual conduct in a way that has been legally defined as patently offensive.
Even a spin class slip-up like Denis Morton's can teach us the delicate dance between explicit beats and the legal bounds of obscenity.
