CITY officials around the country are engaging in a new wave of censorship. No longer satisfied to ban adult bookstores and movie theaters, local prosecutors are now after more mainstream forms of expression, such as record albums and art exhibits. In Broward County, Fla., for instance, county judge Mell Grossman responded to a request from the county sheriff and declared 2 Live Crew's new rap record, ``As Nasty As They Wanna Be,'' obscene. Sheriff's deputies immediately threatened to arrest music-store owners who sell the album.
It is likely - in fact it is virtually certain - that any store owner actually charged with selling the album will either not be prosecuted or not be found guilty.
According to the Supreme Court, expression may be banned as obscene only if it fits a restrictive legal definition. ``As Nasty As They Wanna Be'' may be disgusting, but it isn't legally obscene. Our First Amendment rights to free expression are protected; the system ultimately works. But the victory is not without at least two significant costs.
Acts of local censorship violate the rights of individuals singled out for prosecution. Even though merchants are ultimately not sentenced to jail or to pay heavy fines, they nonetheless spend considerable time and money to defend themselves and often suffer the risk and public opprobrium that accompany criminal actions.
In addition to the loss suffered by individuals, local censorship inhibits free expression, even though the defendants are almost always acquitted. Other records store and bookstore owners censor themselves in an effort to avoid the cost, time, and risk of a criminal trial.
If they are destined to lose in court, why do local prosecutors bring these actions? Most frequently, the actions are brought in response to political pressure. In Florida, Gov. Bob Martinez, waging a desperate reelection campaign, called a news conference lambasting 2 Live Crew's songs and calling on the state prosecutor to go after 2 Live Crew under racketeering laws.
The prosecutor, Peter Antonacci, recognizing censorship for what it is, refused. Other Florida officials, however, concerned both with their own reelection prospects and the governor's favor, were more amenable.
Local prosecutors did not invent these actions. The federal government has offered a number of models. During the past summer, Congress twice tried its hand at censorship. Sen. Jesse Helms introduced an amendment to the Interior Department appropriations bill which would have barred the National Endowment for the Arts from supporting ``obscene or indecent'' work.
Senator Helms' amendment was accepted by the Senate Appropriations Committee without discussion and adopted by the full Senate on a voice vote. Only after an aggressive lobbying campaign by critics of the amendment made legislators nervous about rushing in where the Supreme Court forbids them from treading, did the House reject the amendment.
Last Oct. 5, Congress passed a law that makes defacing, destroying, or even walking on a United States flag punishable by a fine and up to one year in prison, despite the fact that only three months earlier the Supreme Court had declared flag-burning protected by the First Amendment.
``If there is a bedrock principle underlying the First Amendment,'' the court wrote, ``it is that the government may not prohibit the expression of an idea merely because society finds the idea itself offensive or disagreeable.... We have not recognized an exception to this principle even where our flag has been involved.''
Ultimately, courts stop the vast majority of efforts to censor expression. But we should not be satisfied, because it is elected officials, holding their offices in the public trust, who engage in efforts to restrict expression unconstitutionally. We need not look any further than our own Congress to discover where local officials learn the strategy and tactics of suppression.