4.2.12 WC: 191694
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.
Finally, the Chief Justice asked me about theaters:
[H]ow about moving the bear-baiting into a theater and charging $5 admission for it? I don’t want to overwork you on the bear-baiting, but in order to have a film of bear- baiting, you’ve got to go through unlawful process in the first instance.
With less than a minute before my time had expired, 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 9or his law clerksO 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 embarrassed 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 not only the dumbest series of questions I have ever been asked during an oral argument—with at the possible exception of those put to me by a senile judge about the facts of the next case scheduled for argument. It was probably the stupidest conversation I’ve ever had with anyone about the First Amendment. But no one ever said that intelligence was a criterion for being a judge, or even a Chief Justice. What mattered to Warren Burger was that he looked like what a Chief Justice is supposed to look like!
A few months later the Supreme Court rendered a 5 to 3 decision in the J 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. 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 of 1973, when the Supreme Court changed the definition of obscenity in a case called Miller v. California and a series of companion decisions.
In these cases Chief Justice Burger, writing for the majority, expressly and emphatically rejected the approach I had argued in the J Am Curious Yellow case.
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