Police Warnings Questioned in 2 Live Crew Case : Rap: Attorneys on both sides see danger of ‘prior restraint’ in pressuring record stores against selling the ‘Nasty’ album.

Attorneys on both sides of the 2 Live Crew obscenity furor in Florida are questioning whether law-enforcement agencies in other states aren’t guilty of “prior restraint” by warning retailers that they may be arrested for selling the rap group’s latest album.

Police in San Antonio, Tex., Prince William County, Va., and in four counties in South Carolina are the first authorities outside Florida’s Broward County to act on U.S. District Judge Jose Gonzalez’s June 6 ruling that the group’s “As Nasty as They Wanna Be” album is obscene.

Gonzalez spent almost a third of his 62-page ruling admonishing Broward County Sheriff Nick Navarro for the tactics his police used in a campaign to get retailers to remove the “Nasty” album from shelves.

“The action of the Broward County sheriff’s office in threatening retail music stores with arrest for selling the Nasty recording and presenting them with a copy of a probable cause order is hereby DECLARED unconstitutional as improper prior restraint of free speech in violation of the First and Fourteenth Amendments to the United States Constitution,” Gonzalez wrote in his decision.

In a telephone interview this week, Nova University, Fla., law professor Bruce Rogow, who is the rap group’s attorney, criticized the media for being lax in reporting the prior restraint provision of Gonzalez’s ruling.

“Few people realize that 2 Live Crew won a significant victory at the federal level,” Rogow said from his home in Ft. Lauderdale, Fla. “I suppose the reason the press isn’t covering that part of the ruling is that prior restraint just isn’t as sexy an issue as dirty language.”

John Jolley, the Florida attorney who represented Navarro and takes credit for the obscenity finding against 2 Live Crew, agreed that the prior restraint provision was a key element of the decision.

He suggested that other law-enforcement agencies considering 2 Live Crew obscenity prosecutions should consult the decision carefully before taking action. While the ruling is only legally binding in Florida’s Broward, Dade and Palm Beach counties, Jolley said, its “psychological impact” has been spreading across the country.

“For instance, I would say, based on the information that I’ve been given, the actions that police have taken to alert record-shop owners in San Antonio would not be consistent with what Judge Gonzalez laid out in his ruling,” Jolley said in a telephone interview Tuesday.

Prior restraint can be generally defined as any condition imposed by the government on the publication of speech, according to the ruling. In recent months, police in other counties in Florida and in Ohio, Indiana, Tennessee and Alabama have exercised tactics similar to those criticized by Gonzalez to stop the sale of the “Nasty” album. In addition, the 47-store Toronto-based HMV Corp., Canada’s third-largest record chain, also pulled the “Nasty” album from its shelves Monday following a warning from the Ontario Provincial Police Morality Squad. Dan Brenner, a UCLA law professor and First Amendment specialist, also criticized the media for failing to pay more attention to the significance of Gonzalez’s prior restraint comments.

“I think the reason local prosecutors (around the country) are continuing the practice (threatening prosecution for selling the album) is that the press has not printed anything about it,” Brenner said. “The prior restraint information as spelled out by the judge in this ruling is very significant, in that it addresses the intimidating effect that police officers in uniforms brandishing a magistrate’s order can have.

“The same judge who found the album obscene, which is the only thing the press has reported about, ruled that frightening retailers with such actions is unconstitutional.”

The 2 Live Crew case began on March 9, when a state circuit judge ruled that there was probable cause to find the album obscene in Broward County. Following the ruling, police visited area record stores warning employees that they could be prosecuted under Florida obscenity statutes if they sold the record. As a result, retailers in 40 Broward County stores pulled the product from their shelves.

Gonzalez’s federal ruling came as the result of a lawsuit filed on March 16 by 2 Live Crew in which the group sought to have the “Nasty” album declared not obscene and to enjoin Broward County Sheriff Navarro from arresting merchants who sold it to adults. The album, which 2 Live Crew leader Luther Campbell considers to be in the comedy tradition of Redd Foxx and Eddie Murphy and is laced with graphic sexual references, comes with an imprinted parental advisory warning that it contains “explicit language.”

According to UCLA’s Brenner, the judge states that police officers cannot use the type of tactics reportedly being employed to pressure retailers in various communities across the nation.

“What he is saying is that authorities must first go into court, have a hearing and get a judge or jury, based on local community standards, to determine that the record is obscene.”

Dave Risher--a San Antonio merchant who has defied attempts by local authorities to pressure him to voluntarily remove the “Nasty” album from his store--accuses local police of intimidating retailers with the weight of a federal obscenity decision while employing law-enforcement tactics specifically rebuked by the judge who wrote it.

Lt. Jerry Pittman, commander of the San Antonio vice squad and the officer handling the matter for the city, could not be reached for comment.

“This is like some sort of ill-defined threat that they’re waving like a club over our heads,” Risher, owner of Hogwild Records, told The Times on Tuesday. “I go to work each day wondering if I’m going to get hit over the head with it.”

In a related move, the Sacramento district attorney’s office said it did not find “As Nasty as They Wanna Be” to be obscene as judged against “a contemporary statewide standard.” Also, a lieutenant in the vice squad of the Dallas City Police told The Times that authorities had no intention of prosecuting merchants for selling the “Nasty” album in Dallas and that media reports to the contrary were unfounded.