4.2.12 WC: 191694
I had prepared extensively for my oral argument. I expected to be questioned aggressively by the recently appointed Chief Justice Warren Burger, who I had known when I clerked for Judge Bazelon. Burger and Bazelon were arch enemies, both ideologically and personally. Burger knew I was close to Bazelon, and so I expected some tension, but I could not anticipate what awaited me. I had hardly reached the lectern to begin my argument, when Chief Justice Warren Burger asked if he could “interrupt” to inquire whether I thought a state had the power to prohibit a “bear-baiting contest.” I didn’t know exactly what a bear-baiting contest was, but I guessed that it must involve considerable cruelty to bears. I responded that the act of bear-baiting was not protected by the Constitution, since the states have the power to protect animals from suffering.
I tried to get the argument back on the film in question: “I think the example would be better if it were a film of bear-baiting.” But the Chief Justice interrupted me once again: “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:
[Y]our 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 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 14 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 advertisements or 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, for example?
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