Hair and Obscenity: First Amendment Law

It is perfectly acceptable that some may find “Hair” objectionable and protest any performance. The play comes from an era of protest and openly challenges many dominant cultural mores, which were even more dominant when the play was written in the late 1960s. It is within a person’s right of free speech to speak out, or post fliers and to call for a boycott. However, I have issue with the use of a quote from the Supreme Court case Roth v. United States , attempting to paint the performance as somehow illegally obscene and improperly presented at JCC. Personal preference may prevent one from buying a ticket, but the Supreme Court has established that “Hair” fits within the legal framework of protected speech.

The play “Hair” was challenged as “obscene” from the when first performances were staged in a NYC disco and the first traveling regional shows set out on the road in the 1970s. Twice lawsuits involving performance of the play reached the Supreme Court, and in both cases the Supreme Court ruled “the show must go on.” While the rationale for each decision was different, the general gist was “freedom of expression” trumped discomfort with the controversial aspects of the musical. In Boston, in 1970, the county District Attorney attempted to prevent the show from opening, claiming it desecrated the US flag and contained “lewd and lascivious” material. The Massachusetts Supreme Court (the top state court) allowed the show to open, provided that certain sexual scenes were removed and all actors remained clothed. The actors and producers refused to open under those conditions and appealed, first to the federal district court and then the US Supreme Court. With one justice ill, the justices split 4-4 on the issues before them, but the Court’s opinion allowed the show to open with none of the restrictions imposed by the State court.

A second case reached the Supreme Court in 1975, when the municipal theater in Chattanooga, TN, denied a permit for the performance of “Hair.” Acting solely on outside reports of the show’s content, the directors of the theater stated that the show “would not be in the best interest of the community.” The production company challenged the refusal to issue a permit, arguing that their First Amendment rights were abridged by the denial. After a District Court trial, the denial was upheld. The Court of Appeals affirmed this decision and the case was appealed to the Supreme Court. The Supreme Court disagreed with the lower courts’ actions in allowing the refusal to stand. While the Court did not touch on whether or not the play was obscene, the court noted that the original denial was not based on any objective criteria related to the supposed obscenity. It was not until the District Court trial that any evidence was presented on the issue of obscene material, and thus the directors’ earlier denial was without basis. It is important to mention this case, although it may be misinterpreted in support of the proposition that the play is obscene. Instead, Southeastern Promotions speaks to the dangers of prejudging speech and acting in a way that abridges rights by preventing an open forum. Secondly, one must note the finding of obscenity at the District Court was made under the laws of the City of Chattanooga and State of Tennessee. Even if the finding of obscenity hadn’t been mooted by the Supreme Court decision, the finding was based on laws different than those in effect in New York. Finally, the District Court decision found only select portions of the play to be obscene, which is important under the current test for obscenity to be discussed below.

Fliers protesting “Hair” have quoted from Roth v. United States, a dated case that provided a good quote and nothing more on the issue of this play. Roth dealt with a conviction for using the mails to send obscene material, based on a federal criminal statute. This case begins the Court’s discussion of “obscenity” and puts forward the first historical analysis on the topic. Aside from the quote that is being used against the performance of “Hair” at JCC, Justice Brennan also wrote that the “portrayal of sex, e.g, in art, literature and scientific works is not itself sufficient reason to deny material the constitutional protections of freedom of speech.” As well, the test for obscenity mentioned in Roth is only a predecessor of the current test and has been supplanted by developments in American law. The current test, based in community standards and artistic merit, is more useful than the analysis suggested by a reference to Roth. In other words, the limited test of the Roth case, decided in 1957, has little to do with a current production of “Hair” or any current obscenity issue.

The Supreme Court in Miller v. California put forward the current test for obscenity. The test consists of three prongs, and speech and expression will be held obscene if not meeting at least one of the three criteria: the prurient-interest prong, patently-offensive prong, and serious-value prong. In establishing these standards, the Court explained them thusly:

�· Whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest.
�· Whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law.
�· Whether the work, taken as a whole, lacks serious literary, artistic, political or scientific value.

If speech or conduct passes this test, then it is not obscene even if some find it to be objectionable. Additionally, to build further on the third point above (the serious-value prong) and to reference the District Court in P.B.I.C, Inc. (as discussed on the previous page), Justice Kennedy wrote in 2002 that the “artistic merit of a work does not depend on the presence of a single explicit scene.” While the lyrics of a song may be objectionable, a determination of obscenity requires the court look at the work “taken as a whole” and not piecemeal. A play that has survived over thirty years and is often staged because it is a telling social commentary on our past and present, in part because it pushes the envelope, would seem to have an overall artistic merit.

The legal standard for obscenity, as developed in the years following Roth, clearly indicates that the artistic merit of “Hair” trumps any challenge to a staging of the play. Free speech permits those who do not agree to raise objections, but while they may feel it is personally offensive and within a personal definition of “obscenity” it is clear that “Hair” is within the protected speech allowed by the First Amendment.

1. If done in accordance with college rules, of course.
2. 354 US 476 (1957)
3. I can only guess at the motives of the anonymous party posting the fliers, but the reference to unprotected speech seems to indicate a belief that the play is too obscene to be staged at JCC.
4. P.B.I.C, Inc. v. Byrne, 357 Mass. 770, 258 NE2d 82 (1970).
5. P.B.I.C, Inc. v. Byrne, 313 F.Supp 757, reversed and remanded 401 US 987 (1971).
6. Southeastern Promotions, Ltd v Conrad, 420 US 546,548 (1975)
7. 341 F.Supp 465 (1972).
8. 486 F.2d 894 (1973).
9. 420 US at 550.
10. Roth, 354 US at 476.
11. 18 USC �§1461
12. 354 US at 487.
13. 413 US 15 (1973)
14. Miller at 25.
15. Ashcroft v. Free Speech Coalition, 525 US 234 (2002).

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