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parent that Bexar County District Attorney Fred Rodriguez, who was fighting a tough campaign for reelection in November, was losing his enthusiasm for the 2 Live Crew case. He offered Risher a compromise that might have saved embarrassment for both: He proposed to drop the charges against the merchant in return for a pledge not to sell “As Nasty As They Wanna Be” at Hogwild Records and Tapes anymore. The arrangement would have been the same as one worked out in Dallas, whereby prosecutors dropped charges against a , branch of Sound Warehouse in exchange for an agreement to cease selling the controversial album. However, Risher was unwilling to deal: “I’d be hesitant to think any law professor would think much of this deal offered one which violates my First Amendment rights as well as those of the public and of this rap band from Florida that everybody’s getting tired of hearing about. If the prosecutors want to stop wasting everybody’s time and tax money, they can drop the charges and, hopefully, promise never to undertake this wrongheaded prosecution again.” Despite the personal sacrifice, Risher \(unlike Sound Warehouse, a huge national chain which was in much better financial position to mount a legal challenge ciples and rejected the DA ‘s deal. “I could get a better deal, from a shifty, one-eyed, lefthanded poker player named Slim,” he explained. THOUGH CHANCES of conviction appeared slim, The State of Texas v. David W. Risher was shaping up to be the biggest show in San Antonio since Fiesta. The trial date was put off until after election day, and then it was postponed until Monday, December 10. By that point, Rodriguez, defeated by Republican challenger Steve Hilbig largely in reaction to the DA’s having fired an office whistleblower in a unrelated case, was a lame duck and less amenable to pressures from the Weavers. Yet his staff continued to prepare the prosecution, recruiting, among others, Joe Stuessy, a professor of music at UTSA, to be an expert witness for the prosecution. Stuessy had appeared before Congress in 1985 on behalf of efforts by Tipper Gore and her Parents Music Resource Center to lobby for labeling of albums, and he had also testified in support of a homicide defendant’s claim that listening to heavy-metal band Metallica had caused him to commit multiple murders. Stuessy was willing to explain to the jury why “As Nasty As They Wanna Be” should not be labeled but banned, because, as he concluded in an article in The San Antonio Light: “Our society will either get better or worse. I am convinced that the music of 2 Live Crew is one factor in making it worse.” It is not a very compelling argument for censorship, nor for the relevance of Stuessy’s specialty, musicology, to the debate, since it is not the music on the album that is offending anyone. If “Mary Had a Little Lamb” or “The Lord’s Prayer” had been set to the rhythm and melody of 2 Live. Crew’s “Me So Horny,” Risher would not have faced a rap for selling repugnant rap. No, the county’s case was based on the loathsomeness of the lyrics, lines that celebrate abuse of women and brutal sex. Suppression of “As Nasty As They Wanna Be” is more of a literary than a musical matter, and more Constitutional than either. Jury selection appeared to be crucial to each side of the Risher case, and defense attorney Switzer was prepared to spend most of the first day examining potential jurors. Would it be possible to find six citizens whose minds remained open but not empty on the subject of 2 Live Crew? The question was never answered. Barely had court been oyezed into session on the morning of December 10 when the prosecution moved for dismissal. As explained by Assistant District Attorney Pat Hancock, Yames Patrick Weaver, the man who had walked into Hogwild Records six months earlier in order to bring Risher to court, had withdrawn his complaint. Weaver’s affidavit stated that ” … after further consideration and reviewing the tape ‘As Nasty As They Wanna Be’… I find that it is not obscene.” Judge Jimenez was not amused. Lambasting the prosecution for not acting in good faith and for protracting the proceedings for half the year, he declared: “I believe the district attorney owes Mr. Risher an apology.” Jimenez reminded the prosecution that: “The cases that are brought before the court are for those that have been victimized, and not for advancement of special interest groups or political interest groups. This case should have been brought forward in good faith with the interest of justice in mind. It was not.” And he announced: “I will specifically request that no other obscenity cases be brought before the court based on the district attorney’s conduct in this case.” 0 IT IS ONCE again safe to sell music in San Antonio, though within five days of the Risher no-decision a judge in Lake Charles, Louisiana ruled “As Nasty As They Wanna Be” obscene and barred a local store from marketing it. But Dave Risher is back at Hogwild, jubilant over the victory for civil liberties but still reluctant to exercise his in listening to the irksome album. Sales of “As Nasty As They Wanna Be” continue to be brisker than he would want them to be, precisely because it was banned, and big banned music will always be popular. If you want to make a bundle in produce, sell forbidde,n fruit. “My greatest disappointment,” says Teresa Weaver, “is that-we did not get a ruling.” But the leader of Citizens Against Pornography claims that the process was a positive one. “It made parents and business owners more aware of what their responsibility is. Parents have now realized what their children are getting in the music, and record store owners now know that they are responsible for what they are marketing in San Antonio. The music industry needs to accept responsibility for what they’re promoting.” Which is to concede that “As Nasty As They Wanna Be” has not been entirely devoid of political value. James Watt was more effective than Smokey the Bear in recruiting members for the Sierra Club, and George Bush’s bashing of the ACLU during the 1988 campaign boosted membership in the organization to unprecedented levels. One immediate consequence of the Risher case was the founding of the AntiCensorship League of San Antonio, which marched twice on City Hall in defense of the embattled record dealer. According to cofounders Terry Guerrero and Steve Aljandro, the group already has 570 members and now plans even more ambitious projects, specifically a campaign to convince candidates for mayor and City Council in the forthcoming spring elections to take a stand against restrictions on free expression. Much of the impetus for restricting 2 Live Crew and other performers comes from those who ordinarily find nothing obscene in the gestures of the invisible hand that Adam Smith ascribed to free enterprise. Yet, while they are willing to trust shoddy automobiles and shady bankers to the competition of an open marketplace, they are curiously protectionist about expression, more zealous to regulate paintings than pesticides. The 2 Live Crew case bears a superficial resemblance to rabid attacks on for sponsoring the sexually explicit photographs of Robert Mapplethorpe. However, 2 Live Crew are private entrepreneurs, and their album was manufactured without the expenditure of a single public penny. Taxpayers’ money became an issue only when local police and prosecutors decided that harassing an independent record dealer constitutes better use of public resources than fighting other threats to community safety homicides and violent assaults. “The District Attorney’s office is apparently run with its ear to the ground,” Judge Jimenez told San Antonio Express-News reporter Patrick Driscoll following the trial. “I’m of the opinion that the conduct of the office was obscene.” The issue at hand is not whether to grant 2 Live Crew a subsidy, but whether they have the right to compete in the open marketplace. If individual adults are repelled by the album, they can vote disapproval by withholding their patronage. Taxpayers might not care what David Risher is forced to spend in legal fees, but they ought to worry about the waste of public funds in the pursuit of aural purity. Those who place a higher priority on sending record merchants to prison than cracking drug and murder gangs have air between their ears. 0 This publication is available \\1. in microform from University Microfilms Internet lanai. CAW toll-Ires 000-521-3M. Or nisi, inquiry University Microfilms international. 300 We* Zarb Reed. Mn Arbor. MI 4111011. THE TEXAS OBSERVER 19 nleryArtIPPIR,,, thegury..1141