And justice for all… Free speech applies at Mardi Gras too

By Marjorie R. Esman
Guest Columnist

It looked like it was going to be anything but fun and good times in St. Martinville this past Mardi Gras when the city set a ban on what they described as floats playing music with “obscene lyrics.” The Chief of Police said he would arrest anyone playing music that his officers found objectionable. The situation went public when the local newspaper, Teche News, reported that the St. Martinville City Council was planning to ban “rap music” with “obscene lyrics.” While it’s not entirely clear whether city leaders actually made direct reference to “rap music,” it is clear that the town leaders intended to crack down on free expression in the form of music during the parade.

There is only one Mardi Gras parade in St. Martinville, run by The New Comers Club, a predominantly African-American Mardi Gras organization. The New Comers is a private club with the right to set its own rules for its parade. It has the right to enforce those rules as it sees fit. Its members also benefit from the protections of the U.S. Constitution, including the First Amendment which guarantees them, as everyone else, the right to free expression. They are entitled, as is everyone else, to have law enforcement protect those rights, not violate them.

The Chief of Police in St. Martinville doesn’t have the right to decide on his own what music is acceptable and what isn’t. For a rule to be enforceable by the police, it must provide clear guidance so that the public will know what they may and may not do, and it must not violate Constitutional rights. And by any legal standard, it’s almost impossible for popular music to be legally banned as “obscene.” The law is clear that one element defining “obscenity” is “whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value.” Any music that is popular enough to be recorded and played in a parade would almost by definition have artistic value – and certainly it shouldn’t be up to a local police officer to make that determination.

But St. Martinville also wanted to ban music deemed “vulgar.” There is no legal standard for “vulgarity,” and nobody would be able to predict what any one officer might find “vulgar.” “Vulgar” to one is not “vulgar” to all. Parade participants have the right to know in advance what is banned and what is not. Moreover, “vulgarity” is protected under the First Amendment, because only “obscenity” can be banned – and that doesn’t apply to popular music. In short, no police officer anywhere in the United States has the right to arrest someone playing music that the officer finds “vulgar.”

The facts are unclear about whether St. Martinville officials actually said they were targeting “rap” music. That may have been implied if not actually stated, but that’s unclear as well. Still, because the only parade is held by an African-American organization, any implication that “rap” music might be the target must be considered racially biased, especially since it’s commonly understood that “rap” is widely viewed as popular among African-American audiences. It also leads to subjective enforcement, making parade participants victims of the musical judgment of police officers who may not have been trained in the nuances of musical genres.

In a free society, we don’t allow police to engage in prior restraint by censoring speech or expression in advance. Since 1931, the U.S. Supreme Court has held that government may not ban speech or expression before it occurs, with limited exceptions for matters of national security. We also don’t allow police to essentially make up the rules as they go along. The New Comer’s Club, like any other private organization, is free to set its own rules. But for the police to get involved there must be Constitutional standards that protect, first and foremost, the right to free expression and to know in advance what is and is not prohibited. Music is Constitutionally protected, even in St. Martinville.

Fortunately, the parade went without incident. The ACLU of Louisiana wrote the Chief of Police in advance, advising him of the Constitutional standards that must apply. We’ll be watching for next year. Mardi Gras, in St. Martinville and everywhere else, is a celebration of our rights to free expression. We’re here to keep it that way.

This article originally published in the March 9, 2015 print edition of The Louisiana Weekly newspaper.