We succeeded in getting the New York Times to cover the case. Its initial story told how the Reems prosecution was first seen “as a joke,” but was now being understood “as a very serious issue”:
As Mr. Dershowitz interprets the Deep Throat case, “Any person who participates in any way in the creation, production, editing or distribution of a sexually explicit film, newspaper, book, painting or magazine can be hauled into a Federal court anywhere in the United States and charged with participating in a national conspiracy.31
Shortly thereafter, Nat Hentoff wrote a long front-page analysis in the Village Voice, explaining
that the implications of the Reems prosecution go well beyond obscenity. If a conspiracy charge like this one was to be upheld on appeal, the government could make dangerous use of that precedent in political cases involving, for example, antiwar activists.
Here was an actor who, on the one day he worked on Deep Throat, had no idea what the ultimate film was going to look like. He knew it was a sex film, but he had not seen any script in advance. There was no way he could know whether it was going to be soft core or hard core. And, in fact, Harry never even saw the film before it was released. Yet he’s convicted of a conspiracy to move the film, in the form it finally took, across state lines.32
Following the publication of the Hentoff article, hundreds of readers came forward and volunteered their assistance.33
Reems and I crisscrossed the country, speaking at universities, town halls, and other venues. Our appearances were widely covered by the media.34
Not all the stories were flattering. Mike Royko complained in a syndicated article how depressing it was that after two hundred years of men like Jefferson, Paine, Debs, and Darrow, “we are now asked to fight for the right of Harry Reems to be a public creep.… Anybody who contributes to his defense fund,” Royko concluded, “is a mental moonbeam.”35
But people contributed, and Reems and I persisted in making our case in the court of public opinion. In time, the publicity had its intended effect on the public, on the Justice Department, and on the courts. We began to get the message that the Reems conviction was an embarrassment.
In the end, the Justice Department decided to drop the case. Reems’s conviction was vacated and his indictment was dismissed, over the strong objections of the Memphis prosecutor and judge. We did not have the law on our side, but we did have public opinion. We might have lost our case in the court of law (or won it on grounds other than my “choice,” “externality” approach), but we had clearly won in the court of public opinion.36 Harry Reems went free, retired from the porn business, became a born-again Christian, and moved to Utah, where he sold real estate. As my legal “fee” for winning his freedom, he sent me a photograph of him with the following inscription: “To Alan Dershowitz, who taught me everything I know.” The First Amendment was safe from the likes of Larry Parrish—at least for a time. Herb Streiker died in March 2013 of pancreatic cancer at the age of sixty-five.37
My second encounter with Deep Throat presented a more daunting challenge to my legal theory of choice. It took place on my home turf of Harvard, and the people urging criminal prosecution were not Bible Belt fundamentalists but Harvard students. The people whom these students wanted to see prosecuted were other students, one of whom eventually became a founder of Microsoft.
It all began with some drunken Harvard College students viewing the film Animal House and throwing beer cans at the screen, damaging it. The Quincy House Film Society was responsible for the screen. In order to raise the several hundred dollars needed for repair, they decided to show Deep Throat.
Some women students who lived in Quincy House protested. “This is our home,” one complained. “We shouldn’t have to be subjected to abuse and degradation right in our own living room.”
The uproar caught the film society by surprise. The showing of Deep Throat had become a preexam tradition at many colleges. My own nephew sponsored a showing at MIT.38 It was seen as a lark, an escape from the tensions of the tests. But feminists were beginning to take pornographic movies, especially Deep Throat, quite seriously.
Shortly before the scheduled showing, Gloria Steinem wrote an article in Ms. magazine about Deep Throat and its impact on women: “Literally millions seem to have been taken to Deep Throat by their boyfriends or husbands (not to mention prostitutes by pimps) so that each one might learn what a woman could do to please a man if she really wanted to.”39
Moreover, Linda Lovelace was now claiming that her innocent face had been a mask covering up a battered wife who had been imprisoned by her husband-pimp. Several years after the completion of Deep Throat, Lovelace wrote an autobiography entitled Ordeal,40 in which she told a sordid story of how she had been compelled to perform her “sexual sword-swallower trick” at gunpoint.
I called Reems and asked him whether his recollections of the filming of Deep Throat corroborated her claim that she had been forced into performing. Harry, who was then working off-Broadway in a stage play, replied, “Are you kidding? Sure her husband, Chuck, was an asshole, but he was hardly around during the filming. Damiano sent him away because he would get jealous of how much she was enjoying the sex. She was really into it. We had a good relationship before and during the filming.”
I asked Reems whether it was possible that Lovelace was only acting when she “enjoyed” the sex.
“Linda Lovelace acting?” Harry exclaimed. “Have you seen her in a film? She couldn’t even pretend to be acting.”
Lovelace’s account, whether true or false, struck a responsive chord among feminists. (A film based on her story was premiered at Sundance in 2013).41 Steinem’s article presented a sympathetic portrait of Lovelace as the victim of everything the “sleazy pornocrats” had come to represent. The movie Deep Throat came to symbolize the antiwomen evils of the sex industry. And I became the symbol of the “pornocrat lawyer,” getting rich off the suffering of exploited women (even though I charged nothing for most of these cases).
The organization through which Gloria Steinem spoke—Women Against Pornography—advocated boycotts directed not only at theaters and bookstores, but at lawyers who represented them on First Amendment grounds. When I and several friends opened a kosher deli in Harvard Square, it was picketed with signs saying HOW CAN A PORN PIG SERVE KOSHER FOOD? A headline in the local newspaper read, NOTED LAW PROFESSOR ALAN DERSHOWITZ UPHOLDS FEMINISTS’ RIGHT TO CALL HIM A “PIG.” It described how I put a sign up in the window of our deli that read: IF ANYONE TRIES TO STOP YOU FROM PICKETING ME, I WILL DEFEND YOUR RIGHT OF FREE SPEECH TOO.
Some radical feminists went beyond boycotts, shooting bullets through a bookstore window in Harvard Square to protest its sale of Playboy magazine. Some theaters showing Deep Throat received threats of violence, and at least one was firebombed after the patrons left.
Some of the women of Quincy House who were opposed to Deep Throat were not content to protest. They tried to cancel the showing by calling for a vote of the students. They lost by a margin of three to one. Women too were divided. Next the Quincy House women tried to get the university administration to forbid the showing. The dean of students wrote a letter to the Quincy House Film Society urging it not to show Deep Throat, but he would not ban it. The members of the film society, caught up in the challenge, voted to go forward with the event.
The Quincy House women decided to picket the performances and to use the occasion to sensitize students to the evils of pornography. I defended their right to picket the film.
The First Amendment seemed to be in full bloom at Harvard. No one was being prevented from expressing any views. The Quincy House Film Society was going to show Deep Throat; the Harvard administration was expressing but not imposing its view; the feminists were preparing pamphlets, slide shows, and speakers to present theirs; and everyone was free to see and listen to all or none of these expressions.
The feminists seemed to be making their point quite effectively: More students were expected on the
picket lines than at the movie. Many in the Harvard community, while supporting the right of the Quincy House Film Society to show Deep Throat, now believed that the society had been insensitive to the feelings of their feminist housemates by exhibiting an offensive film in the dormitory that was home to them all. I shared that view.
Then everything changed. Days before the scheduled showing, two women residents of Quincy House, not satisfied to protest and picket, called the local district attorney’s office and asked the police to prevent the showing of Deep Throat and to arrest the students who were planning to show it.
The local district attorney was an elderly political hack named John Droney. When he learned that the twin evils of obscenity and Harvard might merge on that fateful night, he dispatched an assistant to court in an effort to secure an injunction.
Only hours before the scheduled performance, Carl Stork and Nathan J. Hagen—the copresidents of the Quincy House Film Society—received telephone calls from the DA’s office directing them to be in court at two o’clock for a hearing. They tried to call me, but I was at lunch. I returned from lunch at two-fifteen, to learn that I was expected in court—fifteen minutes earlier!
I quickly borrowed a colleague’s ill-fitting jacket, dug an old brown tie out of my desk drawer, and drove to the courthouse in downtown Cambridge.
Within minutes, I found myself arguing against the injunction. With no books, cases, or statutes in my possession, I had to wing it.
I argued that the judge need not view the film: No matter what its content, I said, it would be unconstitutional for him to enjoin the showing of any film. The judge insisted on having Deep Throat screened for him. I informed him that I had no intention of watching.
I was preserving an important point for any jury trial that the students might have in the future. I would tell the jurors that I had never seen Deep Throat because I had chosen not to, and that they had never seen Deep Throat because they had chosen not to. I would argue that the right to choose not to see a film is just as important as the right to choose to see a film. Indeed, most countries that prevent their citizens from seeing certain films also require their citizens to see other films. I would remind the jurors that it was the district attorney who was making them see a film they had chosen not to see, in order to have them decide whether other people, who have also chosen not to see the film, would be offended if they were to see it. I hoped, by this argument, to point out the absurd nature of the jurors’ task in an obscenity prosecution based on vicarious offensiveness, and to get them to focus on the important issue—namely, whether the outside of the movie theater, the only thing that the unwilling public might have to endure, was offensive to those who could not avoid it.
The judge excused me from watching Deep Throat, while he, half a dozen assistant DAs, and a few courthouse personnel watched Linda Lovelace and Harry Reems on a small video machine.
After about forty minutes the judge stopped the videotape and summoned us back into court. “I’ve seen enough,” he declared with a disgusted look on his face. Then, turning to me, he said, “You’re the lucky one. I had to sit through that trash.” The judge declined to issue an injunction against the scheduled showing of Deep Throat, ruling that it was not obscene under Massachusetts law.
When I arrived at Quincy House shortly before eight o’clock, a circus atmosphere prevailed. Hundreds of pickets marched outside urging viewers to stay away.42 There was some pushing. Slogans were shouted: “Freedom of the press is not freedom to molest!” “Pornography is an incitement to violence!”
I walked past the pickets and spoke to the assembled viewers and protesters:
Whether you folks like it or not, you are part of a rather important political event.… I am not here to either encourage or discourage the students who decided to see this film.… Were I not involved in this lawsuit, I would be out there defending the rights of those picketers to … persuade you not to see this film.
Notwithstanding the judge’s ruling that the film was not obscene, the district attorney decided to arrest Stork and Hagen.43
Amid shouts of “Free the Quincy House Two!,” Stork and Hagen were taken to police headquarters and booked on charges of disseminating matter they knew to be obscene, despite the reality that they knew it not to be obscene, because the judge had so ruled. A band of students marched behind them and protested the arrest on the steps of the police station. Among the protesting students were some of the same women who earlier had organized the feminist demonstration. They were furious at the students who were trying to put two of their fellow students in prison for exercising their freedom of expression. To complicate matters, one of the arrested students wasn’t a U.S. citizen—he was German—and faced deportation if convicted. As I later described this reversal:
The minute the kids were arrested … everything changed—the women [who had called the cops] became the goats, the kids [who were arrested] became the heroes. One lesson that we all learned was that the least effective way of delegitimizing this kind of speech is to invoke the law; it has the opposite effect.
Several days after the arrest, we filed a civil rights action in federal court charging District Attorney Droney with violating the rights of Stork and Hagen, as well as those of the audience members who were denied the right to attend the three scheduled showings that had to be canceled after the film was seized.
Eventually all the charges against Stork and Hagen were dismissed, after the lawsuit forced the district attorney to admit, under oath, that he had willfully defied the judicial determination that Deep Throat was not obscene, and that his goal was to serve as a “censor,” regardless of the law. The “Quincy House Two” were free and life returned to normal at Harvard.
My encounters with fundamentalists, feminists, and pornographers made clear to me the important, and often underestimated, relationship between the court of law and the court of public opinion.
I once had a European student who wanted to study why there was so much censorship of erotic material in the United States. He had come to his erroneous conclusion from reading United States Supreme Court decisions. I told him that before he undertook his study, he should visit some video stores (this was several years ago) and adult-only movie theaters. He did and came back to me in shock. “They don’t follow the Supreme Court in the United States,” he exclaimed. “Now, that’s a subject worthy of study,” I replied.
It is important to remember that in a democracy, even a democracy in which the Supreme Court plays so central a role, in the end the people decide. This is especially true in an area, like obscenity, where “community standards” help define the law.44 Such values are ever-shifting and subject to influence. While the Supreme Court has insisted that the government has the power to punish the showing of “obscene” films in adult-only theaters (and on cable and “on demand” television), the people have voted the other way with their feet (and their remotes). The law in action today bears little resemblance to Chief Justice Burger’s “categorical … disapprov[al] of [my] theory that obscene, pornographic films acquire constitutional immunity from state regulation simply because they are exhibited for consenting adults only.”45 The law in action more closely resembles the approach I advocated in my first encounter with the law of obscenity back in 1969. I promised Judge Aldrich that if we lost in the Supreme Court, I would continue to urge acceptance of the argument that the government has no business telling a consenting adult what he may or may not watch in a theater (or on video or TV) from which children are excluded, so long as the “externalities”—the images that appear in public view outside the theater—are not obscene.
I have kept my promise, and despite the Supreme Court’s continued insistence—most recently in the violent video games case46—that “obscenity” is not protected by the First Amendment, porn is widely available to consenting adults who choose to watch it without thrusting it upon unwilling viewers. That’s the law in action. Inevitably, the law, as articulated by the courts, wi
ll follow the law in action, lest it become irrelevantly anachronistic or patently hypocritical. Hypocrisy, it has been said, is the homage paid by vice to virtue.47 In the area of obscenity, hypocrisy functions to allow the courts to maintain a pretense of puritanism in a world of prurience. T. B. Macaulay once observed that “the Puritan hated bear-baiting, not because it gave pain to the bear, but because it gave pleasure to the spectators.”48 Perhaps that’s why our “puritan” former chief justice insisted on comparing adult films to bear-baiting. Some adults enjoy watching obscene films. Although some puritans and feminists hate this, there is no evidence that this activity causes the type of harm (or pleasure) that government should be empowered to prevent by censorship.49
Most Americans seem to understand that pornography, while offensive to some, is not provably harmful to others. That’s why obscenity prosecutions have a relatively low rate of success. I have been involved in dozens of obscenity cases over the years and do not recall ever losing one.50
In addition to litigating many obscenity cases, I have written extensively on the subject. My article “Why Pornography?”51 set out to determine whether there is any actual relationship between “hard-core pornography” and violence against women.52
The available evidence strongly suggests that there is no correlation (to say nothing of causation) between the sexual explicitness of a film and the likelihood that it will induce violence by its viewer.53 Indeed it is possible that there may well be a negative correlation, since rape has gone down considerably in those societies in which sexually explicit films are pervasive, while rape has certainly not gone down in those societies that persist in censoring films with explicit sex.
Taking the Stand Page 18
