April 25, 2009
Supreme Court Strikes Down Sutton Guitar Solo As Pornographic, Obscene
WASHINGTON, DC — The Roberts Court today ruled against former Kentucky Thunder guitarist Bryan Sutton, declaring his extended solo on “Get Up, John” from Merlefest 1998 to be obscene and gratuitous to an extent not protected by constitutional First Amendment free speech provisions.
The 6-3 decision ended a bitter and very prolonged legal battle between Sutton and the United States Justice Department. It also marked an important step in the high court’s efforts to more broadly define pornographic expression, a historically vague and problematic legal issue.
Over the past several years, federal courts have steadily moved toward a more inclusive definition of obscenity, and the landmark ruling in United States v. Sutton is notable for considering instrumental music as pornography for the first time ever.
According to the majority decision, Sutton’s performance displayed “striking nonconformance with accepted standards of morality,” and the flagrant solo “clearly aimed to incite lust in the average person by appealing to prurient interests rather than serious artistic, political or scientific ones.”
In a closed-door session, the nine justices reviewed audio recordings of the solo along with video footage.
Justice Roberts, writing for the court, condemned the music’s “undeniable appeal to man’s basest instincts” and he stated that it left the average person feeling “soiled, depleted, and deeply ashamed for having enjoyed it.”
Interestingly, in cases involving live performance, the law typically applies an extremely stringent de minimis standard, and legal scholars agree that the live, public nature of Sutton’s activities did contribute to their being defined as pornographic.
Justice Ginsberg, in her dissenting opinion, eloquently and passionately warned of the dangers inherent what she called “such an arbitrary broadening of restrictions on the free speech.”
And the American Civil Liberties Union has already issued a strongly worded statement criticizing the decision as unduly restrictive of fundamental American freedoms.
Sutton himself, while reportedly dismayed with the court’s decision, has long since matured into a family man whose more restrained playing now rarely reaches the standard established by the court.
But a statement issued by Sutton’s primary attorney did warn young guitarists to limit their own excesses rather than face censorship and even possibly prison time.
Meanwhile, some expressed concerns about the decision’s implications for the country as a whole.
“OK, sure, that solo is way over the top, but more and more often it seems like the Supreme Court is just totally detached from all reality in this country,” said Earl Merrill, a law student from Boston.