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Wednesday, 12 December 2012

Vance v Judas Priest, or (Not) Breaking the Law

Published in the New Law Journal, Vol 161, 15 July 2011, p 994 and in my book Cases, Causes and Controversies: fifty tales from the law. I reproduce the piece by way of tribute to World Heavy Metal Day (today, according to Radio 2)

Much of my youth was mis-spent listening to heavy metal bands from the 1970s and 80s. Since then I have found it amusing watching the genre go from being called a prime factor behind the decline of Western Civilisation to its saviour.

The redemption has come from a realisation that the bands, or the better ones at least, were actually proper musicians who played according to traditional methods, as opposed to manufactured pop or the sort of unmusical noise which finds favour amongst my teenage neighbours. And yet it was once a common contention that all the imagery around swords, sorcery, devils and the undead one finds throughout the metal canon constituted unmitigated evil, or at the very least was not suitable for children.

In 1990 that argument reached its zenith – or nadir – when the veteran British band Judas Priest were sued in the United States by the parents of one James Vance. The action followed an attempted double suicide by Vance and his friend Raymond Belknap. Belknap died but Vance survived with serious injuries (though he died three years later). Both had consumed marijuana and alcohol immediately prior to the incident, and had generally led troubled lives for many years. Despite that history Vance’s parents formed the view that the suicide attempt had resulted from the pair listening to the Priest album Stained Class. They issued proceedings against the band seeking damages accordingly.

The first hurdle that the plaintiffs faced was the robust protection of freedom of expression provided in the US by the First Amendment to the Constitution. The strategy they adopted was to argue that there had been “subliminal messages” on the album, which should not qualify for First Amendment protection because the recipient would be unaware of them: there would be no exchange of information or other functioning of the marketplace of ideas, nor expression of personal autonomy, nor any of the other principles of free speech as understood in American jurisprudence. At a preliminary hearing, that argument was accepted - not without some controversy - and the case proceeded to trial.

The plaintiffs’ burden remained formidable nevertheless. They had to establish that the band had deliberately placed a message on the record, which was inaudible (but still identifiable) and thus “subliminal”, and that the message had a direct, causative link to the suicide attempts.

The band members, who can be forgiven for not taking the writ entirely seriously initially, attended trial in a solemn manner, with their usual S&M-looking garb replaced by sober suits, offset slightly by the expansive hairstyles common to all metal bands of the time. They denied that any subliminal messages had been placed on the album. It was pointed out that any number of apparent phrases could be “heard” by playing the record – or any other record – backwards, and that most such “phrases” were as innocent as they were nonsensical.

The particular message alleged to be present by the plaintiffs was “do it”, which immediately raised the unanswered question “do what?” The band remarked that if they had been going to insert any such message, it would have been along the lines of “buy seven copies of this album” and not a commercially-detrimental injunction for fans to kill themselves.

The judge ultimately held that the claim failed due to lack of causation: the tragic actions of Vance and Belknap could compellingly be ascribed to other factors.

Justice was therefore done, although the judge’s prior holdings remain disquieting. They include the statement “the ‘Do It’s’ on the record were subliminal because they were only discernible after their location had been identified and after the sounds were isolated and amplified”. But, as one of the defence witnesses subsequently wrote (Dr T. Moore, “Scientific Consensus and Expert Testimony: Lessons from the Judas Priest Trial”, The Skeptical Inquirer, Vol 20.6, Nov/Dec 1996), something not consciously discernible is not necessarily unconsciously discernible either.

Dr Moore also pointed out that there is “no evidence whatsoever that subliminal directives can compel compliance”.

By allowing the case to proceed to trial, rather than dismissing it summarily, the judge allowed the junk science on which the plaintiffs’ assertions were based to gain the veneer of plausibility, or at the least the oxygen of publicity. The proceedings also left the band incurring significant and unrecoverable legal costs.

The plaintiffs’ lawyers were just as much to blame for advising their clients to bring an absurd case. They may as well have fashioned an ecclesiastical action on an image of Christ seen on a piece of chapati bread.

Predictably the publicity had some effect. Fellow British metal legend Ozzy Osborne also found himself sued in America over his record Suicide Solution, but the case failed because there were no detectable subliminal messages and the overt exhortations in the lyrics qualified for First Amendment protection.

Attention was granted to the INXS song Suicide Blonde, but the tune was exculpated because it referred to hair colour - somewhat ironic in view of Michael Hutchence’s subsequent death. Presumably however radio stations stopped playing the Billie Holiday classic Gloomy Sunday or the theme to M*A*S*H (Suicide is Painless) around the same time.

With original recordings now almost exclusively in the digital format one hopes we might now be spared “analysis” of supposedly hidden messages in tape distortion, feedback or “white noise”. But I suppose that would be to underestimate the human imagination ...

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