OBSCENITY CHARGE AGAINST SINGER REVERSED

                         Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: TUESDAY, January 7, 1992                   TAG: 9201070161
SECTION: CURRENT                    PAGE: NRV1   EDITION: NEW RIVER VALLEY 
SOURCE: KATHY LOAN NEW RIVER VALLEY BUREAU
DATELINE: RADFORD                                LENGTH: Medium
OBSCENITY CHARGE AGAINST SINGER REVERSED
Radford Circuit Judge Duane Mink has reversed his conviction of the lead singer of a hard-core thrash band on a misdemeanor obscenity charge.
The band - named after a male sexual enhancement device - originally was charged in May with distributing obscene flyers and giving an obscene performance. General District Judge Ray Grubbs dismissed the obscene performance charges in June, but fined each member $500 for distributing obscene flyers.
The flyers, posted at an apartment complex near Radford University and on the campus, advertised a May performance at a downtown nightclub. The flyers featured four semi-naked cartoon characters with exaggerated sexual organs. The ad was taken from another band's album cover.
Mink heard the band members' appeal of their convictions in November and upheld the lower court ruling against Billy Tresky, 23, the band's lead singer. He dismissed charges against Jon Bolt, Rob McConnaughy and Dave McGraw.
The band members were Radford University students in May, but since have graduated.
Mink's decision to uphold Tresky's conviction was based on the lead singer's testimony in June that he had helped prepare parts of the flyer and that he gave some copies to some friends. Tresky was the only band member to testify at the lower-court hearing.
But Friday, Mink reversed his conviction of Tresky. In a letter to defense attorney Joe Steffen and Radford Commonwealth's Attorney Randal Duncan, Mink said Steffen's post-trial motion to dismiss was "well-taken."
Steffen, an Blacksburg entertainment lawyer, said his first line of defense was the misapplication of the obscenity definitions as outlined in Miller vs. California.
"Much like the Appeals Court in the 2 Live Crew situation in Florida, I believe [Mink] was eventually convinced that the First Amendment was more than broad enough to protect this type of speech," Steffen said.
"While it may be offensive to some, it clearly involves social, cultural, and political value in both a comedic and serious sense. The flyer was not an attempt to arouse deviant sexual excitement but was intended to poke fun, lampoon and shock all permissible goals of serious literary work. Certainly, segments of our society will take offense to such humor, but it is at the heart of First Amendment protection."

by Archana Subramaniam by CNB