Taking the Stand

by Alan Dershowitz

  Judge Julian asked whether “that interest [should] be legally protected.” I responded:

  Now, there may be ways of protecting it, perhaps through zoning regulations.…

  But if the issue is total banning on the one hand as against being vicariously offended by knowing people are doing this kind of thing, I would submit that the Constitution has a clear answer to that. It must permit the film to be shown in a way to minimize your exposure to it and to permit you both fully to see and to avoid being exposed to the contents of the film.

  So I do submit that Your Honor does have an interest and I can understand it. But I think you will realize that on balance this interest could be used to upset almost every kind of freedom that Americans ought to be at liberty to engage in.

  Judge Aldrich seemed intrigued by our argument, while continuing to press me hard on its implications. He clearly understood my distinction between direct offensiveness, in which an unwilling viewer is immediately confronted with material that is offensive to him or her (as his grandmother was), and vicarious offensiveness, in which a person is offended by the mere knowledge that others, who are not offended, are choosing to watch material that would be offensive to him if he viewed it. The distinction was new to him, but it seemed to resonate. At one point Judge Aldrich asked me what I would do if the Supreme Court ruled against my novel theory. “Will that be the end of the road …?”

  I responded: “Well, I, as an attorney, will continue to urge the court to accept this principle because I think it’s the correct approach to the regulation of obscenity.”

  Following three days of intensive argument and questioning, the judges issued a decision written by Judge Aldrich. He bought my argument—and my distinction between direct and vicarious offensiveness—totally. He began by accepting my assumption about the nature of the film:

  For purposes of this case we assume that the film is obscene by standards currently applied by the Massachusetts courts.16

  He then went on to discuss the implications of the Stanley decision, which the prosecutor had argued was “irrelevant” to this case and which, at the beginning of my argument, Judge Aldrich too had thought was not relevant to movie theaters:

  In Stanley [the] Court held that in certain circumstances possession of a moving picture film is constitutionally protected even though by contemporary standards the film is obscene. We do not consider this irrelevant.17

  The question, as he colorfully put it, was whether the Stanley decision is “the high watermark of a past flood, or the precursor of a new one.”18 In seeking to answer that question, the court went on to consider the state’s argument that an obscene film, even viewed in a restricted theater, can induce the viewer to commit rape.

  Of necessity the Stanley court held that obscenity presented no clear and present danger to the adult viewer, or to the public as a result of his exposure. Obscenity may be offensive; it is not per se harmful. Had the Court considered obscenity harmful as such, the fact that the defendant possessed it privately in his home would have been of no consequence.

  In the end, the court decided that obscenity laws were constitutional only as applied to “public distribution in the full sense, and that restricted distribution, adequately controlled, is no longer to be condemned.”19

  This is how the court summarized its conclusion:

  If a rich Stanley can view a film, or read a book, in his home, a poorer Stanley should be free to visit a protected theater or library. We see no reason for saying he must go alone.20

  It was the first time in history that a court—any court—had ruled that the government had no power to ban or prosecute an “obscene” film that was shown to the public in a theater on the ground that it might vicariously offend people who had a choice not to enter that theater. I had won a victory not only for my client, but for my novel approach to offensiveness under the First Amendment. Not a bad way to begin my career as a thirty-year-old lawyer. The victory would, however, be short-lived, at least in theory, if not in practice.

  The district attorney appealed our victory to the Supreme Court, which accepted the case. I was asked to argue for Grove Press. And so, at the age of thirty-one, I argued my first case before the high court.

  I prepared extensively for my oral argument, expecting to be questioned aggressively by the recently appointed chief justice, Warren Burger. Burger and Bazelon were archenemies, both ideologically and personally. Burger knew I was close to Bazelon, and so I expected some tension. But I could not have anticipated what awaited me. I had hardly reached the lectern when Burger asked if he could “interrupt” to inquire whether I thought a state had the power to prohibit a “bear-baiting contest.” Though I didn’t know exactly what a bear-baiting contest was, I guessed that it must involve cruelty. I responded that torturing bears was not protected by the Constitution, since the states have the power to protect animals from suffering.

  I tried to get the argument back to my case: “I think the example would be better if it were a film of bear-baiting.” But the chief justice would have none of it: “Let’s stay on the live.” I drew a distinction between an act that harmed another creature and a film of consensual lovemaking that did not intrude upon the sensibilities of those who chose to view it. The chief justice shot back:

  You are saying that it’s all right to kill one bear and five dogs in the filming process, but it isn’t right to kill many more of them in live showings, is that a distinction?

  I had no idea what he was getting at with his obviously scripted questions, so I tried again:

  No, I would say a state would have the right to prohibit the actual killing of dogs and bears whether for film or other purposes.

  The chief justice persisted in his obsession with bears!

  Let’s say fourteen states didn’t have any statutes against bear-baiting, and 4.5 million had watched bear-baiting or the filming of bear-baiting. Would that have the slightest relevance in your judgment on whether the showing of bear-baiting in Boston, Massachusetts, could or could not be stopped?

  I tried to direct my answer away from bear-baiting and to the issue of whether the Constitution permitted a consenting adult to view an obscene film in the privacy of a restricted movie theater:

  No, the First Amendment protects the individual’s right to receive information necessary to satisfy his emotional and intellectual needs. The thrust of our [position would take prosecutors] from [inside] the theater—that is only attended by people who want to go—and would put them outside the theater to protect you and me from the intrusion on our sensibilities that would occur if movies … thrust [explicit] pictures on unwilling viewers.

  But the chief justice would still not be diverted from his bears. Though I had never mentioned a bear in my answer, he challenged me:

  Are you suggesting that it is a universal rule that everybody is offended by bear-baiting?

  That, of course, was precisely my point: Those who were not offended should be free to watch a film in which no one was hurt.

  With less than a minute before my time would expire, the chief justice asked whether I thought the analogy to the bear-baiting contest was “valid.” I politely told him what I thought:

  I think the analogy of bear-baiting is not valid [because it] is an illegal act which hurts animals. It is different from [lovemaking] presented on a screen to a public which has chosen to view it.

  By this point my time was nearly up. I quickly summarized my argument that under a functional definition of privacy,

  a theater with its curtains drawn deserves [at least as much constitutional protection as] a home with its shades drawn up.

  The chief justice had monopolized the entire argument with his bear-baiting analogy. He or his law clerks had apparently prepared a series of questions for me about bear-baiting, and Burger had simply gone down the list, ignoring my answers. The other eight justices were unable to ask questions, though several of them seemed anxious to probe certain points. Some of them seemed embar
rassed by their chief’s performance. By the end of the argument, I finally understood what a bear-baiting contest must feel like—at least to the bear. It was the dumbest series of questions I have ever been asked during an oral argument, and it was probably the stupidest conversation I’ve ever had with anyone about the First Amendment. It was particularly unintelligent compared to the argument in the lower court, where Judge Aldrich had asked thoughtful and probing questions, and had been persuaded to change his mind by my answers. But no one ever said that intelligence was a criterion for being a chief justice. What mattered to Warren Burger, with his shock of white hair and handsome face, was that he looked like what a chief justice was supposed to look like! His deep, stentorian voice even made him sound like a chief justice, as long as one didn’t consider the content of what he was saying.

  A few months later the Supreme Court rendered a 5–3 decision in the I Am Curious (Yellow) case that did not reach the broad issue decided by the district court (nor did it mention bear-baiting); instead, it decided the case on a narrow procedural ground.21 We eventually settled the case to the advantage of the defendants. The film was shown throughout the country, and no one went to prison. Judge Aldrich’s opinion, suggesting that all censorship of the content of movies exhibited to adults in discreet settings was unconstitutional, remained the only court decision on that issue until June 1973, when the Supreme Court changed the definition of obscenity in Miller v. California22 and a series of companion decisions23 (in which I played no role).

  In these cases Chief Justice Burger, writing for the majority, emphatically rejected the approach I had argued in the I Am Curious (Yellow) case. Instead he accepted, whole hog, the vicarious offensiveness rationale that Judge Aldrich had rejected:

  We categorically disapprove the theory … that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only.24 … The States have a long-recognized legitimate interest in the quality of life and the total community environment, the tone of commerce in the great city centers, and, possibly, the public safety itself.25

  But as I promised Judge Aldrich, I continued to press my principle in the court of public opinion and in a series of other obscenity cases over the next several decades. Ultimately my view would prevail, if not in law then certainly in practice. Chief Justice Burger may have won in the courthouse, but we won in theaters and on television sets throughout the nation, as sexually explicit films—far more explicit than I Am Curious (Yellow)—became pervasive and “legal” in fact if not in law.26 This disparity between the law as set down in theory by the Supreme Court and the law as implemented in practice throughout the country is an interesting story in itself.27

  DEEP THROAT:

  WHY I CHOSE NOT TO WATCH IT

  My initial victory in the I Am Curious (Yellow) case—getting a three-judge court to declare unconstitutional all obscenity laws that applied to adults-only theaters—made me something of a hero in the “adult film” industry, and something of a pariah among radical feminists who regarded such films as dangerously sexist. Many “obscenity” clients came my way, including the producers of the musical Hair, which was “banned in Boston,” and several “soft-core” films, such as the very forgettable Belinda28 and the unforgettable hard-core film Deep Throat.29

  I’m told that Deep Throat is a very hard-core and very bad movie. I can’t personally attest to these claims because, to this day, I have not seen it.30 I avoided seeing the film not because I’m a prude—I enjoy a good erotic movie as much as the next person—but rather because I wanted to make a point about the law of obscenity: The decision to watch or not to watch a particular film should be a matter of choice for every adult citizen. Just as I’d told the judges in the I Am Curious (Yellow) case that they didn’t have to view the film in order to rule that an adult had the constitutional right to view it in an adults-only theater, so too I had the right to argue that position without myself viewing Deep Throat. I also believed that my not viewing the film was a good tactic that helped to dramatize my point that vicarious offensiveness is not a proper basis for censoring a film or prosecuting an actor who starred in it.

  I used that tactic in two separate cases involving Deep Throat. The first was the prosecution of Harry Reems for his role as an actor in the film. Reems was the first actor in history ever to be prosecuted for obscenity. He was charged with participating in a nationwide conspiracy to transport an obscene film in interstate commerce. The United States government charged him with conspiracy because Reems had nothing to do with the actual distribution of the film. As the prosecutor acknowledged:

  [Reems] made the film, got his money, and got out back in 1972, that is, he didn’t do anything else as a part of the conspiracy, he didn’t do any more overt acts, he didn’t participate any further, and the question arises why in the thunder does he wind up being charged [with acts that took place] four years later?

  His answer was that “once a person joins a conspiracy, he is liable for everything that happens in that conspiracy until it is ended.” (Reems asked me whether he could have been charged with murder, if strong-arm methods used by the distributors had resulted in a death years after the film had been completed. I told him that under the prosecutor’s theory that was possible.)

  In order to get out of the conspiracy, according to the government, Reems was obliged “to take up affirmative actions to defeat and destroy the conspiracy.” But what could Reems have done? He could not have “exposed” the crime, as one might expose a secret conspiracy, since everyone knew who had participated in the film’s production and distribution. Nor could he have prevented the distribution and exhibition of the film, since he retained no rights to it.

  The jury, selected from residents of Memphis, a city called “the buckle of the Bible Belt,” convicted Reems and his coconspirators, and Harry was left to search for an appellate lawyer. Because of my involvement in the I Am Curious (Yellow) case, he called me.

  When we met, Reems described himself to me as “a nice Jewish boy earning his livelihood by doing what lots of people would pay to do.” He was born in Scarsdale, New York, with the name Herbert Streicher, dropped out of college, joined the marines, and later set out to become a stage actor, performing with the La Mama troupe, the New York Theater Ensemble, and the National Shakespeare Company in New York City. During Christmas of 1969, “when things got rough and there was no work around … a fellow said he knew where I could make $75 doing a stag film.” His two female costars, both students in sociology at NYU, put him at ease, and he completed several “loops.” Streicher was successful, not so much because of his looks or size, but rather because of his extraordinary ability to perform repeatedly on cue.

  Streicher had been hired as a sound and lighting technician for a sex film being shot near Miami, Florida, in January 1972. When the original male lead failed to appear, the director, Gerard Damiano, asked Streicher to fill in. Since it took only one day to shoot the film’s sex shots, he earned $100 for his performance. He received no royalties. He did not participate in the editing or distribution of the film. Even his stage name, “Harry Reems,” was picked by the director. He retained his stage name and performed in several other sex films. But his role in Deep Throat was over, or so he thought, until he was arrested two years later in New York City and taken to Memphis, a city that Streicher had never even visited.

  The prosecuting attorney was a Bible Belt fundamentalist appropriately named Larry Parrish, who was dubbed by the press as “Mr. Clean,” “the Memphis Heat,” and “the Memphis Smut Raker.” A born-again Christian, Parrish believed that pornography was the bane of modern America. He told a reporter that he would “rather see dope on the streets than these movies,” explaining that drugs could be cleansed from the body, but pornography’s damage was “permanent.” As a prosecutor of pornography, he had already secured forty convictions.

  The decision to bring Reems to trial was an instance of Parr
ish’s creativity. As a Memphis lawyer put it: “Parrish figured that putting an actor on trial was the way to get publicity [and] a man is less likely to pick up public sympathy than a woman.” Parrish acknowledged that his purpose in prosecuting Reems was to make it clear that no one involved with a porno film was immune from criminal liability.

  Having been convicted, Reems faced years in prison. He had no money and asked me to take his appeal on a pro bono basis. I agreed. I told him I preferred not to watch the film and explained to him my theory of vicarious offensiveness, “choice,” and “externalities,” but I assured him that I would make every argument that had any chance of freeing him.

  There’s an old saying: “If you have the law on your side, bang on the law. If you have the facts on your side, bang on the facts. If you have neither, bang on the table.” I have never believed that, but I do believe in a variation on that theme: If you don’t have the law or legal facts on your side, argue your case in the court of public opinion. In the Reems case, the Memphis jury had rejected Reems’s factual defense, and the judge had rejected his legal defense. The Supreme Court had rejected my “choice” and “externality” approach. I continued to believe, however, that the broader general public, or at least its most influential segment, would be sympathetic to my libertarian approach to obscenity, especially in the context of an actor being prosecuted. Reems, to be sure, was no Helen Hayes, but to make the point that the principle was the same, we adopted the following slogan: “Harry Reems today, Helen Hayes tomorrow.” We elicited support from the mainstream entertainment industry and received the backing of several eminent figures, such as Mike Nichols, Gregory Peck, Stephen Sondheim, Jack Nicholson, and Colleen Dewhurst.