Vance v. Judas Priest
The Matter.
Lead counsel in the nationally covered subliminal messages trial against Judas Priest and CBS Records. Secured a landmark pre-trial ruling that subliminal content is not protected by the First Amendment.
What the record shows.
- ¶ 01
On December 23, 1985, Raymond Belknap (age 18) and James Vance (age 20) of Sparks, Nevada entered into a suicide pact after hours of listening to the Judas Priest album “Stained Class.” Belknap died at the scene. Vance survived, severely disfigured, and died three years later.
- ¶ 02
The Belknap family retained Mr. McKenna. The Vance family retained Timothy Post. The two cases merged, with Mr. McKenna taking the lead role. The defense was Judas Priest and CBS Records — represented by counsel with the resources of a major recording label.
- ¶ 03
Early in the engagement, Mr. McKenna sent the album to Bill Nickloff, an audio producer who had previously been a client in an unrelated divorce matter. Nickloff reported subliminal messages embedded in the track “Better By You, Better Than Me.” That report shifted the legal theory from lyrics-based liability to subliminal-based liability — a decision that defined the rest of the case.
- ¶ 04
Before trial, Judge Jerry Carr Whitehead of the Washoe County District Court ruled that subliminal content is not entitled to First Amendment protection because, by design, it cannot contribute to the marketplace of ideas. The defense had argued for blanket First Amendment immunity. The ruling cleared the way for a nineteen-day bench trial in the summer of 1990, conducted as a national media event at the Washoe County Courthouse.
- ¶ 05
Mr. McKenna and co-counsel Vivian Lynch presented expert testimony on subliminal psychology and computer-enhanced audio demonstrations in which the phrase “do it” could be heard at least seven times. Closing argument sought $6.2 million in damages. Judge Whitehead ultimately ruled against the plaintiffs on liability — finding that subliminal sounds were present but had not been placed intentionally — while imposing $40,000 in sanctions against CBS Records for withholding master recordings during discovery. In his ruling, the judge wrote that “the position taken by the plaintiffs in this action was an arguable one.” The 1992 documentary “Dream Deceivers” recorded the trial and its aftermath.
The path through the courts.
- STEP 01TrialVance v. Judas Priest, Washoe Cty. Dist. Ct. (1990)Reported
- STEP 02Pre-Trial (writ)Judas Priest v. Second Judicial Dist. Ct., 760 P.2d 137 (Nev. 1988)Reported
The ruling established that the First Amendment does not extend to content engineered to communicate below the threshold of conscious awareness — the central doctrinal line that emerged from the litigation.
Lead / Counsel of record — Kenneth J. McKenna, Nevada Bar № 1676
This matter sits within Mr. McKenna’s Trial Counsel for Attorneys practice.