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December 14, 2004

Wal-Mart sued for selling the F-word

Walmart is being sued by a Maryland man for selling an Evanescence CD with a song containing the word "fuck" (read the lyrics). Wal-Mart, of course, has a policy of not selling offensive materials; this CD did not have the "Parental Advisory" sticker, and wouldn't have been sold under Wal-Mart's policy if it had. He's claiming $74,500 for every copy sold (apparently under the assumption that everyone is offended as he is, and that's exactly the monetary damage incurred for hearing one word in a 70-minute CD).

Despite the ludicrousness of the damages claimed, I hope this suit succeeds. Wal-Mart can't have it both ways. If you claim to be the moral arbiter of America, then you'd better do it right. Walmart gets all this middle-America kudos for not stocking titty magazines or outré books or CD's with dodgy lyrics, but there's also a cost to performing such censorship. Clearly they skimped on those costs in this case. If they've fucked up the censorship (pardon the language) then they ought to pay the price.

Hat tip: overlawyered.

Posted by david at December 14, 2004 03:59 PM | TrackBack
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Comments

I don't know how anyone could listen to Anywhere But Home by a goth-y band (not that you can't be Christian and gothic, but it is rare), enjoy it enough to purchase it, and then be angry enough about fuck to sue. I hope Trevin Skeens is simply attempting to provide the same sort of lesson that we're hoping to see delivered.

Anyone who supports this lawsuit should be free of any illusions about taking personal responsibility.

Posted by: Gary on December 14, 2004 06:57 PM

Personal responsibility isn't really the issue here. Don't get me wrong, I'm all for personal responsibility -- tort reform was the only thing I agreed with Bush on during the debates.

The issue is really about censorship. Wal-Mart actively engages in censorship of media by not stocking items that it deems "unsuitable". And because Wal-Mart is such a huge retailer, that has a knock-on effect on which books, movies, and CDs actually get published. (If you can't use Wal-Mart as a distribution channel, that DVD you're thinking of publishing might not be finacially viable. Better make a few cuts to bring it down to a PG-13 rating to expand the market by getting it into Wal-Mart.)

Why does Wal-Mart perform such censorship? Because there's profit in it, of course. They've calculated that by catering to middle-America tastes they can make more money, even if it pisses of liberals like me who refuse to shop there. But companies like Wal-Mart (and Blockbuster, and Sinclair) need to learn that there's a cost to censorship too. Once you declare yourself moral arbiter, you've got to do the job right, and *that* costs money. AOL (I think) learned this the hard way when they promised to screen offensive materials in Usenet newsgroups, but there's so much content there that it's impossible to do it perfectly. If I recall correctly, they got sued, and the result is they no longer promise to censor the newgroups.

Same issue here -- Wal-Mart is effectively promising to screen all of the media it sells for offensive content, and apparently they're not doing the job perfectly. Fine. Let someone sue, and I hope they win. Wal-Mart has to realise there is a cost as well as a financial benefit to censorship, and my sincere hope is that the cost makes the censorship financially unviable.

Posted by: David on December 15, 2004 11:15 AM

Bravo, David! It is not only censorship in publishing where Wal-Mart causes a knock-on effect. It is in the open market of consumer goods as well. A company that is having reasonable success turns around and finds that Wal-Mart has just contracted with their Chinese fabricators to create a private label, knock-off for 1/3 their cost. They have done so while refusing to distribute the original product because the company won't jump through their supplier hoops. This company might as well close its doors. Its only hope is that there is enough premium in the brand to promote exclusivity and loyalty. If not, they are hosed.

Posted by: terry on December 15, 2004 06:39 PM

This might be veering to far from David's orignal post but... did anyone catch The Decline of Brands in the November Wired? With music, the sound (or personality?) IS the brand and brand loyalty is what moves CDs, but with the rest of consumer products? Like music, fashion is driven by brand too, but when it comes to things like housewares and home electronics, I think that Wired might be right. Brand loyalty ISN'T enough. The smaller, supplier company IS hosed. Private label for 30% less? What's the average consumer going to do? I think we're going to end up with a really broad range of cheap vanilla goods and a gourmet market sector that sells to the folks that benefit from the Bush tax cuts.

Posted by: pam on December 16, 2004 11:31 PM

You've got one thing right, Wal-Mart capitalizes on customer's conservative views. However, they most certainly do not live up to the standards they claim to have.

Lawsuit calls Wal-Mart on their dubious claims of upholding conservative values (about this case)

Wal-Mart's video game bottom line... Censorship or conservative values? Or just more sticking it to 'the little guy'? (about how Wal-Mart censors violent and sexual content games from small manufacturers, but sells uncensored violent & sexual content games that they know will sell anyway elsewhere - and they'd lose those sales if they didn't sell the games in all their violent & sexy glory. heh.)

And most people should come to be aware that they're probably not aware of all the facts in this case. As many seem to be missing a lot of facts of a lot of things, because of picking & choosing for sensationalism in the news...

#1
The parents first complained to Wal-Mart. They didn't go straight to a lawyer. But were told that Wal-Mart refuses to make any official announcements admitting that their censorship is neither fair nor consistent. And refuses to do anything to warn parents that the f-word is on this CD, and perhaps on others. Thus the parents were motivated to take it to court. While the parents might be conservative in the extreme, and they might actually believe that no store should sell offensive items... That's not the basis of the legal claim.

#2
The amount of money named in the news articles is the "not to exceed" amount. NOT the amount they are truly seeking in reality, or thinking they will get. In legal speak, it's merely the amount not to be exceeded, and in reality they may be seeking as little as "the cost of the CD". The reason that the cap is high, has something to do with the case being possibly federal. (I assume because Wal-Mart is a national company.)
Reference

#3
Not only did the CD contain a word that should have warranted a parental label, supposedly, but didn't. That's besides the point. The parents, in the store, themselves listened to the song, on a promotional preview CD on the store's system... In other words, the parents heard the song before buying it. But guess what - they heard a censored version of the song! But then were sold an uncensored version! This is an intregal part of the legal grounds for the case, I believe, despite the fact it hasn't been mentioned in many news articles about the case.
(This was mentioned in some of the articles.)

#4
The news articles keep mentioning that the parents bought the CD for their 13 year old daughter. Leading people to react thinking it's not such a big deal for a 13 year old to hear the f-word. The actual facts of the case were that though they purchased the CD for their 13 year old, what upset them was that after they listened to the CD in the store, and believed Wal-Mart was a safe place to shop for conservative music, they then played the CD in front of thier SEVEN YEAR OLD SON. Why the articles fail to mention the 7 year old son, go give it a guess. Of course most people, even non-conservatives, probably wouldn't think it's so outrageous that they were upset about their 7 year old son hearing the word. Getting upset about a 13 year old hearing the word makes much better news.

And there are others who believe this case is akin to poetic justice.

David: They don't care about pissing off liberals with their willy-nilly censorship, and claims of censorship... Because liberals already hate them anyway, for even better reasons.

Posted by: Chloe on December 17, 2004 03:27 AM

Thanks for the very informative post Chloe -- and welcome to the nonfamous posting club!

I know Wal-Mart doesn't care about pissing off liberals, but I think what pisses me off is the sheer hypocrisy of it all. They don't promote conservative values because of some all-encompassing moral code. The do it because there's profit in it. And as your link about video games perfectly illustrates, they're perfectly happy to bend the rules when it suits the goal of profit. And yet Middle America just turns a blind eye. That's why I'm pleased these parents have launched this lawsuit -- they're not turning a blind eye.

Posted by: David on December 17, 2004 09:35 AM

I'm not sure that I care that the censorship is profit-motivated. I've participated in boycotts that were attempting to change the economics of some product, service, or method. Sure, I'd rather the merchant or manufacturer agree with my ideals about why things should be different, but I'll settle for making their wrong way unprofitable. Wouldn't we like to see eco- and labor-friendly business be more profitable than those of lesser awareness? Don't we want to patronize those that are?

It's unfortunate that one retailer has so much ability to control what reaches the masses, but I suppose if I was supremely concerned that my pop songs be kosher, I might shop for music someplace that carried such goods.

That's what Wal-Mart needs: Focus On the Family to certify their products as family-safe.

Posted by: Gary on December 18, 2004 01:44 PM

Gary, if WalMart could find a way to profit from eco or labor friendly products they would be doing it. Unfortunately, a majority of their products are made overseas and with the expirations of the textile tariffs in the coming months a greater percentage of those will be from China - not exactly the most eco or labor friendly place on the planet.

As the dollar continues to fall it will be interesting to see if "Made in America" becomes popular again.

Posted by: terry on December 19, 2004 12:40 PM

I'm with David and the parents suing Walmart and pretty much anyone who can draw attention to the hypocrasy of values-based censorship. The stakes of Walmart imposing its "morality" to pander to the Christian right and win their dollars are a lot higher than the already galling influence they have on consumer culture. Yeah, it pisses me off that because of chains like Walmart, and probably WM more than others, those Left Behind books get published and sell while books with real literary value are rejected because they're viewed as less marketable.

But Walmart applies the same brand of morality to more than consumer products, including in their pharmacies. Walmart is the only major retail pharmacy to refuse to sell emergency contraception, presumably because their policy makers either can't tell the difference between contraception and abortion, or figure that their base of right-wing shoppers can't, and sacrificing the health and well-being of some unfortunate women is worth not offending or challenging the ignorance of their most loyal customers.

What makes it even more frustrating is that because Walmart has done such an effective job of driving out the competition in many rural parts of the country, many women who find themselves in need of EC won't be able to get it, at least not within the 72 hour window in which it's effective.

Posted by: paulette on December 21, 2004 10:06 AM
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