did not investigate any other alternative means the City of New York could have resorted to reach its goal. Also, the decision that the New York guidelines did not involve any prior restraint was considered technically wrong since the City of New York does possess the authority to deny use of the Bandshell in advance of the expression by turning down the volume and, as the dissent stipulated, because the placement of a technician during the concert interfered with the communicated message. Likewise, the fact that the Rock Against Racism concert was held in Central Park was crucial for the event because rescheduling the concert at another place would have meant a reduction of the political message to a "whisper" (Sorondo 1990). Finally, procedural safeguards of the guidelines were not met because the city could always abuse its discretion in the control of sound without judicial review of the concert promoters. The incitement trials have likewise lead to little legal debate. Legal scholars agree that the rulings in the Osbourne and Judas Priest trials were correct and that musical recordings will never be able pass the Brandenburg incitement test (Block 1990:796-803; Houser 1990:333-337). First of all, it is hard, if not impossible, to prove that the intention of a record is to cause injury because the artist can always argue that only artistic values are involved. The message of a record can also not be directed at some definite time, so that the reaction can not be immediate. Given the time lapse between recording, selling and buying of the record, there cannot be a "real time" urging. In addition, the listener can freely turn the music off, look for a different record, and the impact of subliminal messages is not determined and can therefore not be conclusively ruled upon. Finally, it was suggested that the Brandenburg test can and should not be applied to musical recordings because records are private speech, publicly available yet ...
